The Irish Parliament in the Middle Ages [Reprint 2016 ed.] 9781512806014

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IRISH THE

PARLIAMENT

MIDDLE

AGES

Études présentées à la Commission internationale pour THistoire des Assemblées d'États X

THE

IRISH PARLIAMENT IN THE

MIDDLE AGES By

H . G. R I C H A R D S O N a n d G. O. SAYLES

Philadelphia UNIVERSITY OF PENNSYLVANIA LONDON: GEOFFREY CUMBERLEGE OXFORD UNIVERSITY PRESS

1952

PRESS

COPYRIGHT 1 9 5 2 UNIVERSITY OF PENNSYLVANIA PRESS MANUFACTURED IN THE UNITED STATES

FOREWORD

HE present book is the first attempt to give a comprehensive account of the Irish parliament in the Middle Ages. The need for such a book, as, indeed, for monographs on every phase of medieval administration in Ireland, has long been evident. We have ourselves covered the ground cursorily in three contributions: the first, a paper read before the Royal Irish Academy in 1928; the second, an article in the English Historical Review in 1943; and the third, the introduction to the first volume of Parliaments and Councils of Medieval Ireland, a collection of documents published by the Irish Manuscripts Commission in 1947. More detailed treatment of the subject is, however, necessary. We have repeated a few passages that we have written earlier, but substantially this volume is entirely new, much of it based upon material in manuscript. Administrative history cannot be separated from political history, but we have introduced only so much political history as will make our story intelligible. There are other books in which the political history of Ireland can be read, though we venture to think that our conclusions may sometimes be profitably used to correct interpretations of events and documents which have not always taken account of administrative processes. But, save with rare exceptions, we have not deemed it necessary or desirable that we should correct explicitly misstatements in the writings of others. We are conscious that, as venturers in an almost uncharted sea, we may ourselves be in need of correction. Yet we hope that such corrections as may be required will arise chiefly from our ignorance of documents which have not come to our notice but which will reward the researches of fellow students with better fortune or greater leisure than we have been able to command. Perhaps, however, we should make it plain that, though necessarily much is said of taxation, this book is in no way a history of Irish finance in the Middle Ages and that, for our present purpose, we have not needed to draw heavily upon the abundant but little-known records of the Irish exchequer and their English counterparts. We would express our thanks to His Grace the Lord Archbishop of

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v

vi

FOREWORD

Armagh and to the Governors of the Armagh Public Library for that courteous cooperation, without which the long series of the Registers of the Archbishops of Armagh could not have been read within measurable time. Dr. R. J. Hayes, the Director of the National Library of Ireland, kindly provided us with photostats of some of the transcripts in the Harris Collectanea within his charge. Mr. J. J. Graneek, the Librarian of the Queen's University of Belfast, and Miss Alice Megaw, the Assistant Librarian, have been indefatigable in their services, particularly in making easier the wearisome task of checking references to printed works. Dr. J. Otway-Ruthven gave most generously of her time and knowledge in reading the proofs on our behalf. We can hope for nothing better than that our book should prove worthy of the assistance we have received. H. G. R. G. O. S.

CONTENTS

List of References to Manuscripts Chapter

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

ix Page

Introduction Commune Consilium Secretum Consilium Taxation in a Feudal State The Beginnings of Parliament Parliament in the Fourteenth Century Afforced Councils Taxation in the Fourteenth Century Peerage and Peers of Parliament Absence and Amercement Parliament in Transition The Privy Council in the Fifteenth Century The Last Phase of the Medieval Parliament Bills and Statutes Taxation in the Fifteenth Century Ireland and the English Crown Poynings' Law

1 10 20 39 57 71 101 111 119 137 145 162 174 196 227 244 269

Appendices

I. II. III. IV. V. VI. VII. VIII. IX. X.

The Irish Magnates in 1213 Legislation in 1278 The Parliament of September 1279 The Dublin Parliament of Easter 1281 Writs of Summons Parliamentary Petitions The Privy Council at Drogheda in 1423 The Speaker's Protestation The Statute of Assent and Disassent The Statute of Henry fitz Empress

285 290 294 298 301 307 311 318 321 324

Parliaments and Councils, 1264-1495 Bibliography Index of Persons and Places Index of Subjects vii

332 367 375 391

L I S T

O F

R E F E R E N C E S

T O

M A N U S C R I P T S

PUBLIC RECORD O F F I C E , LONDON

C. C. C. C. C. C.

l 47 4g 66 8i 14g

E. 28 E. 101 E. 164

Early Chancery Proceedings Chancery Miscellanea Chancery, Parliament and Council Proceedings Patent Rolls Chancery Warrants Chancery Inquisitions, Miscellaneous

E. 37a E. 404

Exchequer, Treasury of Receipt, Council and Privy Seal Exchequer, King's Remembrancer's Accounts Exchequer, King's Remembrancer's Miscellaneous Books, Series I Exchequer, Foreign Accounts Exchequer, Lord Treasurer's Remembrancer's Memoranda Rolls Exchequer, Enrolled Accounts Exchequer of Receipt, Writs and Warrants for Issue

K.B. 27

King's Bench Rolls

S.C. 1 S.C. 8

Ancient Correspondence Ancient Petitions

E. 364 E. 368

BRITISH M U S E U M , L O N D O N

Add. MS. Cott. MS. Lansd. MS.

Additional MS. Cottonian MS. Lansdowne MS. L A M B E T H PALACE,

LONDON

Carew MSS. PUBLIC RECORD O F F I C E , D U B L I N

Calendars of Justiciary Rolls Calendars of Exchequer Memoranda Rolls Ferguson Collection (transcripts) NATIONAL LIBRARY, DUBLIN

Harris Collectanea (transcripts) MS. 2556: Council Roll of 1392-93 ix

X

L I S T OF R E F E R E N C E S T O

MANUSCRIPTS

ARMAGH PUBLIC LIBRARY

Registers of Archbishops of Armagh (Sweteman [1362-80]; Fleming [1404-06]; Swayne [1418-39]; Prene [1439-43]; Mey [1444-56]; Octavian del Palatio [1479-1513]) MS. G. 1 1 . 1 3 : extracts from Irish patent and close rolls. BIBLIOTHÈQUE DE TROYES

MS. 1316 (This appears to be the only surviving medieval manuscript of Henry of Marlborough's Chronicle. From it are derived the transcripts in Cotton. MS., Vitellius E.V., Bodleian Laud Misc. 614 and Trinity College, Dublin, E. 3. 20, as well as Camden's edition in the Britannia. The manuscript came into the possession of François Pithou before 1630, in which year it passed to the Oratorians of Troyes. )

IRISH THE

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MIDDLE

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1 INTRODUCTION

HERE still lingers on, it is to be feared, the belief which, not so very many years ago, was almost universal among historians: that, from at least the thirteenth century, in Ireland as in England, the king had summoned parliaments of a composition and with functions, if not identical with those of modern parliaments, at least very similar to them. In England there were assumed to have been in prototype, from very early times, a house of lords and a house of commons, while in Ireland lords and commons were believed to have met originally as a single body in one assembly. Apart from this singularity and other minor differences (for example, in the part played by the representatives of the inferior clergy), the parliaments of the two countries, so it was supposed, were essentially the same. The belief in the extreme antiquity of parliaments of this type is itself very ancient, certainly as old as the later years of the fourteenth century, for there was then in existence at least one version of the tract known as the Modus tenendi parliamentum. Arguments have been advanced to show that this tract comes from the reign of Edward II; these it is unnecessary to consider here, though perhaps facts that have to be mentioned will suggest that the arguments are unconvincing. But, at any rate, it is evident that, by the time that the position of representative elements in parliament was well established, men could assume that in Ireland this had always been so from the days of Henry II, while in England the pattern of parliaments had been determined before the Norman conquest. Nineteenth-century historians recognized that the Modus was fiction, or, as William Stubbs said, 'a somewhat ideal description of the constitution of parliament,'1 but they still clung to the belief that in some way a representative element was a necessary constituent of parliament, which was, by definition, an assembly of the three 'estates.' Stubbs, whom we may take as representative of instructed opinion, inherited this conception, as he did so many of the ideas that find a place in his Constitutional History of England, but he set himself the task of finding documentary evidence for his belief. The evidence, which becomes

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1 Select Charters (8th ed.), p. 502. In the preface to the ninth edition, H. W. C. Davis described the Modus as a jeu d'esprit.

1

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T H E IRISH P A R L I A M E N T IN T H E M I D D L E

AGES

abundant under Edward I, showed, however, that there were many meetings, called by contemporaries 'parliaments,' to which apparently no representative elements were summoned. This plainly could not be denied, but what would seem to be the inevitable conclusion could be avoided by the hypothesis that the same name was given to two different lands of meeting, 'sessions of the council for judicial business . . . held at fixed times of the year' and sessions of the 'commune concilium of the three estates . . . in the completeness recognised at the moment.'2 This hypothesis is not original to Stubbs. It will be found as early as 1820 in the First Report of the Lords Committees touching the Dignity of a Peer.3 Even, however, when the judicial sessions of the king's council were set aside, it could not escape notice that the method of summoning representative elements differed from time to time and that, if parliaments were assemblies of the three estates, they had not all at once a fixed constitution. In the fourteenth century there appeared to be ordered regularity, but not in the thirteenth. In his search for an explanation, Stubbs observed that the parliament summoned to meet on 13 November 1295 was constituted in the fashion that prevailed in the fourteenth century, and he therefore called this assembly a model parliament, whence derives the name of the 'Model Parliament' applied to it by later writers.4 Of this he wrote that, by the writs of summons, 'a perfect representation of the three estates was secured, and a parliament constituted on the model of which every succeeding assembly bearing that name was formed';5 it served 'as a pattern for all future assemblies of the nation,' 'a precedent for all time to come.'6 There was no contemporary authority for qualifying this parliament of 1295 as a model, still less as 'the Model,' and it was unfortunate that subsequently there were a number of divergences from the pattern adopted on this occasion.7 If it is an exaggeration to say of Stubbs that Tie projected into the past the image of the constitutional monarchy which he saw working Constitutional History ( 3 d e d . ) , ii. 274. Op. tit., i. 169-71. * See T o u t , Political History of England, p . 195; A d a m s , Origin of the English Constitution, p . 331; P o l l a r d , Evolution of Parliament, p p . 54-55. 2 3

5

Select Charters, p. 483. These words are echoed by Maitland, Constitutional

History of England, p p . 74-75; b u t t h i s is t h e M a i t l a n d of 1888. 6 Constitutional History, ii. 134, 236. 7

As Stubbs, curiously enough, recognized (ibid., p. 235).

INTRODUCTION

3

under his own eyes,'8 it is nevertheless true that he believed parliamentary democracy to be discernible, however imperfectly, in the thirteenth century. A long tradition was on his side, and so great was his own authority that his exposition was generally accepted and, even after it had been challenged by F. W. Maitland, the most distinguished of contemporary scholars, only very gradually was it seen to be obviously inadequate and to involve a serious falsification of history. In his introduction to the Memoranda de Parliamento, which appeared in the Rolls Series in 1892, Maitland had advanced these five propositions: a session of the king's council is the core and essence of every parliamentum; the documents usually called "parliamentary petitions" are petitions to the king and his council; the auditors of petitions are committees of the council; the rolls of parliament are the records of the business done by the council —sometimes with, but much more often without, the concurrence of the estates of the realm; the highest tribunal in England is not a general assembly of barons and prelates, but the king's council. Perhaps the force of these propositions was somewhat weakened by Maitland's 'reminder' that those who come to the opinion thus expressed 'will not be departing very far from the path marked out by books that are already classical.'9 But whether it is that historians are a plain folk, apt to take a meiosis literally—for Maitland was, in truth, inviting them to make a wide and distasteful departure from classical teaching—or whether this introduction was, like so many introductions, inattentively studied, for long no one heeded. And then, to all seeming, Maitland himself, having raised large issues, lost interest in such problems. In the History of English Law, for which he was primarily responsible, parliament is barely mentioned, and what little is said is perhaps not always felicitous.10 True, the history purports to end 'before 8 M. Petit-Dutaillis in Studies and Notes supplementary to Stubbs Constitutional History, p. 307. T h e original French runs: 'Malgré des réticences que lui commandait sa probité d'historien, il projetait dans le passé l'image de la royauté constitutionnelle qu'il voyait fonctionner sous ses yeux, et à laquelle il attribuait la grandeur de son pays' ( Histoire constitutionnelle, édition française, Ill.vii. ) 9 In the original volume the passage will be found on p. lxxxviii; as reprinted in Selected Essays, at pp. 70-71. 10 Pollock and Maitland, History of English Law. All the relevant passages, and they are few, seem to be in the first volume and are easily traced through the index.

4

THE IRISH P A R L I A M E N T IN THE M I D D L E A G E S

the time of Edward I,' and no more than an occasional glance into the future might be expected; but there were important things to say of parliament under Henry III, and Maitland left them unsaid. It is as though he had put a question mark in the margin of some pages of Stubbs' Constitutional History and had been content. Although C. H. Mcllwain, writing under the influence of Maitland, stressed the judicial aspect of parliament in his High Court of Parliament, published in 1910, he threw no fresh light upon the origins of parliament, with which, indeed, he was not particularly concerned. And if Mcllwain was read and his teaching regarded respectfully, the consequent necessity was ignored of reconsidering the whole conception of early medieval parliaments as it had been presented by Stubbs. Just as the revised edition of the Select Charters, prepared in 1913 by the doyen of Oxford medievalists, H. W. C. Davis, retained the preface practically as it had been written in 1870—'the statements which the researches of forty years have disproved' being 'wonderfully few in number'—so M. Pasquet, revising in 1925 what he wrote in 1914, could still speak of the 'so-called' rolls of parliament of Edward I as being 'really for the most part . . . pleas before the king and his council,' and could assume that then 'great parliaments' were assemblies of 'the three orders,' though the orders were divided into five groups.11 Again, A. F. Pollard, in his Evolution of Parliament (1920), still accepted the hypothesis that parliaments were of two types and, indeed, put forward more elaborately the evidence that Stubbs had believed supported it. 12 Moreover, Pollard's critics, alive as they were to minor errors, were blind to this fundamental misconception, though James Tait could comment that 'the line between parliaments, as between councils, was at first a wavering one.'13 And then again M. Georges Lefebvre, in his commentary on Stubbs published in 1927, deduced from the arguments of Mcllwain and Pollard that 'the chief innovation of Edward I would therefore be in making the meetings of both [types of parliament] coincide.'14 So far, writers on the history of early parliaments had worked over 11 The Origins of the House of Commons. Pasquet's conception of parliament as 'a single whole,' i.e., one large assembly, need hardly detain us. It is difficult to give it any intelligible meaning (pp. 9, 136-37, 228). 12 Evolution of Parliament, pp. 47-55: cf. Stubbs, Constitutional History, ii. 236, 27413 Eng. Hist. Rev., xxxvi. 254. 14 Studies and Notes, supplementary to Stubbs' Constitutional History, iii. 459, translating the corresponding passage at p. 819 of vol. iii of the French edition.

INTRODUCTION

5

substantially the same material. A critical examination of the available evidence (much more extensive than the restricted body of documents that had hitherto engaged the attention of historians) shortly afterward led to a more thoroughgoing revision of accepted doctrine,15 and it is now a recognized historical truth that English parliaments at all times in the thirteenth century were of one kind only.18 This was implicit in Maitland's teaching; but what he had failed to drive home was that his thesis implied the rejection of the greater part of the teaching popularized by Stubbs. The consequences are, indeed, far-reaching. There is now no difficulty in understanding why the parallel institutions in France, Scotland, and elsewhere were called parliaments, even though they were destined to evolve on different lines and ultimately to serve different purposes. The English parliament can be seen in its European, its historical, setting. It has been necessary to explain at some length the development and outcome of the study of the origins of the medieval English parliament because the current misconceptions of its composition and functions have in the past greatly influenced writers on the medieval Irish parliament, for they did not make an independent approach to the subject. To some extent this was due to the failure of the Irish Record Commission to render accessible the very considerable body of evidence which the staff they employed had under examination. They accomplished nothing that could be set beside the volumes of Parliamentary Writs that the English Record Commission produced or the Rotuli Parliamentorum that had been published in the eighteenth century. Apart from a few documents included in their reports, the only contribution of the Irish commission was the inept calendar of the medieval chancery rolls, which, for no conceivable purpose, distorts and obscures the texts it pretends to make available for public use. More considerable contributions were made by William Lynch, who published the texts of a number of writs of summons,17 and Sir William Betham, who wrote a history of Irish medieval parliaments, valuable for the documents em1 5 Richardson and Sayles, 'Early records of the English parliament,' Bulletin Inst. Hist. Research, v. 129-54; vi. 71-88, 129-55; Richardson, 'Origins of Parliament,' Trans. R. Hist. Soc. (4th series), xi. 137-83. 1 6 T h e lists in the Interim Report of the Committee on House of Commons Personnel and Politics, 1264-1832, and in the Handbook of British Chronology, published b y the Royal Historical Society, are based upon the papers mentioned in the preceding note. 1 7 Lynch, Legal Institutions ( 1 8 3 0 ) , pp. 288-360.

6

THE

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IN T H E

MIDDLE

ACES

bodied in it. 18 Betham's point of view differed little from that of the Lords Committees: it was he, moreover, who popularized, if he did not invent, the conception of the Irish parliament as unicameral.19 He gave a good many references to entries in the early justiciary rolls which exhibit certain aspects of parliament that plainly called for an explanation, but, like the Lords Committees, he saw a distinction between a 'general parliament,' which he defined as 'a meeting called by the king to grant him a subsidy,' and 'parliament, in its common acceptance . . . or king's high court of justice.'20 Lynch also used the early justiciary rolls, and it is due to his memory to recall that he was thereby led to the conclusion 'that in Ireland, as in England, those powers now properly divided between the Legislative, Executive, and Judicial authorities were exercised at that early period by the King and his Council (private or general, as the case might have been) in full Parliament assembled.'21 Although this is not a description of parliament that could now be unreservedly accepted, Lynch's determination to be guided by the evidence of the records brought him nearer to the truth than any historian approached, until Maitland, in his turn, insisted that 'a session of the king's council is the core and essence of every parliamentum.' If, however, Lynch's book was read and used, his teaching on this point was ignored. The underlying assumption of a primitive constitution, providing for popular representation, remained unchallenged in Ireland, as in England, until very recently. How strong and persistent a hold this assumption had we may illustrate by a citation from the first edition (1923) of Edmund Curtis's History of Mediaeval Ireland. He said of John Wogan that no more than his royal master could he stand faithfully by the letter of representative politics. A central parliament was intended to remove that old grievance of shire-courts and local meetings being called on to vote taxes. But in 1299 Wogan held . . . local conventions of the sort which were easily packed and intimidated. . . .' Similar 18 First published in 1830 under the title of Dignities, Feudal and Parliamentary, and the Constitutional Legislature of the United Kingdom, vol. I, and republished in 1834, with a few additional pages, under the new title of The origin and history of the constitution of England, and of the early parliaments of Ireland. The Irish section consists of chapters x-xiii. 19 'The division into two houses, it would appear from the records of parliamentary practice, did not take place till the reign of Henry the Fourth' (p. 290). Betham seems to have had much the same idea about the English parliament (ibid., p. 1 3 ) . 20 Ibid., pp. 280-281. 21 Op. cit., pp. 48-49.

INTRODUCTION

7

action in 1300 is 'a thing even more objectionable,' wherein 'Wogan acted a part which was without dignity or even much profit.' The implication of these words can only be that there was some legally established or recognized constitution in Ireland similar to, if not identical with, that which Stubbs imagined to have existed at the time in England, and, indeed, Curtis discovered model Irish parliaments in 1297 and 1310, the latter being Ireland's true 'Model Parliament.'22 For such a view, it need hardly be said, there is no contemporary warrant, and it involves the introduction into the thirteenth century of ideas of a later age. If we are to avoid the anachronisms which have made nonsense of so much historical writing, we must lay the foundations of the study of parliaments in Ireland by assembling as many contemporary references as possible and relating them to the pattern of contemporary life. We must avoid preconceptions, but we shall do well to remember that the system of the English common law was adopted in Ireland and that, though we must expect a time-lag and the adaptation, as well as the direct reception, of English institutions, the general features of Irish administration will recall those of English administration. Since, then, the English parliament evolved as a tribunal and council set above the courts and departments of government, so we must expect the Irish parliament to be occupying a similar position. And while we lack for Ireland any such legislation as the Provisions of Oxford of 1258,23 which prescribed the composition and fixed the sessions of parliament, yet we must think it highly probable that the arrangements then agreed upon found a counterpart in Ireland. We must, of course, remember that the prescriptions of the Provisions of Oxford were not strictly observed in England and that, instead of three sessions at Michaelmas, Candlemas, and 1 June, we find parliament meeting regularly under Edward I in the Easter and Michaelmas terms, and that even this regularity was qualified. The Provisions of Oxford had envisaged extraordinary meetings on special occasions, and there was an assumption that in the king's absence parliament could not function. Consequently, we find considerable breaks in the sequence of parliaments during Edward I's absences abroad, as well as the intercalation of parliaments between 22 Op. tit., pp. 189-92. The passage is much modified in the revised edition of 1938 (pp. 173-75)2 3 The best-known text is in the Annals of Burton, which is reprinted in the various editions of Stubbs' Select Charters. For other texts, see Richardson and Sayles, The Provisions of Oxford, reprinted from the Bulletin John Rylands Library, xvii (1933), no. 2.

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the Easter and Michaelmas sessions, while toward the end of his reign, in face of his preoccupations in Scotland, any attempt at regularity was abandoned. 24 In the fourteenth century the requirements of ordered government would ordinarily be met, it was supposed, by annual parliaments, and circumstances did not always permit such frequent sessions.25 In all this there is little that we do not find paralleled in France, though there the burden of judicial work that fell upon parliament necessitated annual sessions, beside which the usual session of an English parliament in the fourteenth century appears very brief. 28 W e should not be surprised to find a parallel development in Ireland. A meeting of parliament is more strictly termed a meeting of the king's council in parliament: in the words of Fleta, Tiabet enim rex curiam suam in concilio suo in parliamentis suis.'27 The direction the development of parliament took in Ireland, as in England, was largely determined by the growing frequency with which sessions of what has come to be called the commune concilium coincided with sessions of the council in parliament. This coincidence was neither necessary nor absolute, and it is, indeed, intermittent throughout the Middle Ages. AfForced councils meet frequently which are of a composition similar to councils in parliament, and no more striking examples can be found than in fifteenth-century Ireland, where the great councils, to which the representatives of the commons come, are barely to be distinguished from parliaments. For certain purposes, in England and in Ireland, great councils become an alternative to parliaments. So far as composition goes, the Irish great councils of the fifteenth century resemble English great councils under Edward III, after whose reign they cease, in England, to contain a representative element.28 These facts are fundamental to an understanding both of Irish and of English constitutional history. They serve to emphasize Maitland's teaching, which we may express briefly by saying that, while parliament may have special functions, it is not sui generis but an afforced meeting of the king's council. More than this: since the king may summon whom he will, the presence or absence of elected representatives is a matter for his decision, and attendance is a duty, a burden, rather than a right; whether even a particular assembly is to be a parliament or not is a 24 Trans. R. Hist. Soc. (4th series), xi. 155-58; Bulletin Inst. Hist. Research, v. 132-48. 25 Ibid., vi. 79-80; viii. 77; ix. 1. 28 Trans. R. Hist. Soc. (4th series), xi. 157, 159-61. 27 Fleta, lib. ii. c. 2. 28 For English great councils, see Bulletin Inst. Hist. Research, viii. 65-77.

INTRODUCTION

9

matter for the king. Obviously, certain conventions will grow up; the king's ministers will have great regard for precedents; duty will merge into right. But notions such as that of peerage and the right to be summoned will be seen to be of gradual growth, and the conception of parliamentary democracy will be of still slower and more gradual growth.

2 COMMUNE

CONSILIUM

AVING cleared the ground and indicated the lines upon which the Irish parliament would be built, we must turn back to the early years of the Conquest to trace the origin of the principal elements in parliament and of the administrative fabric within which parliament was devised to function. Since it is the most ancient of the components of parliament, it will be well, in the first place, to recover what we can of the history of the 'common council,' as it has, perhaps unfortunately, been called. As a preliminary, we must remind ourselves that the king who conquered Ireland was not an Englishman but a Frenchman, that he was duke of Normandy and count of Anjou in succession to his father, and duke of Aquitaine in right of his wife, before ever he became king of England; that his speech was French and his ideas were French, as were the speech and ideas of his barons, and that such speech and ideas were common to many thousands of like men who were fighting and ruling in lands stretching from Syria to the Atlantic. In these lands there was, it is true, no rigid uniformity of institutions. There were, for example, institutions in England and Normandy—the office of justiciar and the exchequer—which were not to be found in the other dominions of Henry II, in Anjou or Poitou or Aquitaine; and the administrative structure given to Ireland was of the Anglo-Norman pattern. But important though this fact is because it determined the structure of so much later history, yet of at least equal importance in the twelfth and thirteenth centuries is the fact that the pattern of administration was subordinate to the general pattern of French feudalism.

H

As a consequence, the 'common council' had deep roots in Ireland. There is a reference to it as early as 1188, when the justiciar, John of Courcy, confirmed to the abbey of Navan the lands it held by gift of the Irish before the coming of the English.1 This he did 'de communi consilio domini regis in Hibemia,' a phrase very difficult to render into modern speech, for commune consilium implies both the advice and 1 The charter is printed, from P.R.O., C. 47/20/6, no. 1 2 , by Dr. E . St. John Brooks, in Journal of Royal Soc. of Antiquaries of Ireland, lxiii. 39. The dating clause should, however, apparently read 'Anno vero regni domini regis Henrici [xxx]iiij. decimo die Aprilis apud Drogheda.'

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11

the advisers; but we shall not greatly err if we say that the justiciar acted on the advice of the king's common council in Ireland. John of Courcy is expressing what Count John expresses in other words when, as lord of Ireland, he grants to the archbishop of Dublin the gift (donatio) of the bishopric of Glendalough: this he does 'consilio baronum meorum.'2 Since John's charter is dated at Nottingham on 27 December 1192, we can only speculate how he obtained the advice of his barons. Perhaps the advice came through the justiciar, for we find John, soon after he had become king, as a preliminary to granting a charter, instructing the justiciar to enquire 'per consilium baronum Hibemie' what lands were held by Stephen de Cruwes, what was their value and what the service due, and to certify him by letters patent of the justiciar and the barons.3 Perhaps, however, the advice was that of the barons actually around him, as it had been when, on 23 March 1208, John ordered that the English criminal law should apply to robbers and harborers of robbers in Ireland. On this occasion his decision was made "by the wish and counsel of the Earl Marshal, Walter de Lacy, and other barons of Ireland, present with the king in England, and by the counsel of the king's lieges in England.' These words seem to mean that the proposal was put forward and approved at a council meeting, attended by two of the leading Irish barons and a few lesser barons. The initiative may well have come from the Marshal and Walter de Lacy, who, as the lords of Leinster and Meath, were responsible for the maintenance of law and order over a large part of Ireland, but be that as it may, the acceptance by the king of the advice of this council was sufficient. There was no further consultation with the king's ministers or barons in Ireland; all that remained to be done was to inform the justiciar, barons, and lieges of Ireland of the decision taken.4 Similarly, it is possible that, at the Oxford council in February 1207, when assent was given to an aid of a thirteenth that was to be levied in both England and Ireland,6 there were present barons of sufficient standing and with sufficient lands in Ireland to make them, in the contemporary view, representative of the Irish baronage. The Marshal and some lesser barons were practically certain to be there, among the 'vast multitude of prelates of the Church and magnates of the realm,'8 for he, with John of Early and Henry Hose, did not obtain letters of protection for the purpose of visiting Ireland until a week or more after the close 2 Crede Mthi, pp. 44-45, no. 3 Rotuli de Oblatis, p. 50. 4 5

6

41.

Rot. Litt. Pat., p. 80. Below, p. 47.

Annales Monastici

(Waverley), ii. 258.

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of the assembly.7 We may believe with almost equal certainty that William of Briouze, lord of Limerick, was also present.8 It may be as well to say at once that, while commune consilium can be equated, without any doubt, with consilium baronum meonun, John, as lord of Ireland, was not required to consult any particular number of barons or to summon them to advise him.9 Doubtless the barons were bound to render counsel, if called upon, but this was a burden rather than a privilege.10 The burden would have been excessive, had they been required to attend an absentee lord of Ireland, and, though Irish barons are found in attendance on John and later kings in England, there is no suggestion that this is an obligation. Normally they are convened by the justiciar, and their advice or, where necessary, their consent is given to him or through him. On one occasion, certainly, the Irish barons were in attendance on John, but that occasion was during his visit in 1210, when the magnates were required to swear that they would observe in Ireland the laws and customs of England. Of this meeting, and of the charter that John then issued, we know only what some letters of Henry Ill's, of 1226, 1228, and 1233, tell us, but they establish the main facts, and they show also that the assent of the magnates obtained in this fashion, though apparently at their instance, was regarded as the common consent of all men of Ireland—communis omnium de Hibernia consensus.11 Two years or so later we have some 7

Rot. Litt. Pat., p. 69 ( 1 9 February). The Histoire de Guillaume le Maréchal shows that John of Early and Henry Hose were two of the Marshal's most trusted vassals. 8 His presence with the king at this time is implied by John's letters regarding Limerick (Rot. Litt. Claus., i. 77b; Rot. Litt. Pat., p. 69). As Orpen suggests, Walter de Lacy was probably acting for him in Ireland (Ireland under the Normans, ii. 177«). 9 English parallels must be borne in mind: for these, see McKechnie, Magna Carta, pp. 248-51. 1 0 To give one illustration: when, in April 1217, the archbishop of Dublin is sent by Henry III to supervise the government of Ireland, the barons are required to give him, as well as the justiciar, consilium et iuvamen ( Patent Rolls, 1216-1225, p. 57). 1 1 The three statements differ but are not necessarily discrepant. The first is that, when John went to Ireland, 'ipse duxit secum viros discretos et legis peritos, quorum commuai consilio et ad instantiam Hiberniensium statuit et precepit leges Anglicanas teneri in Hibemia, ita quod leges easdem in scriptum redactas reliquit sub sigillo suo ad scaccarium Dublinie' (Patent Rolls, 1225-1232, p. 96). The next reference is to King John's charter, 'cui sigillum suum appensum est, quam [cartam] fieri fecit et iurari a magnatibus Hibernie de legibus et consuetidinibus Anglie observandis in Hibemia' (Close Rolls, 1227-1231, p. 45; Early Statutes Ireland, p. 2 3 ) . The third reference is to leges regni nostri Anglie quas . . . Iohannes rex . . . de communi omnium de Hibernia consensu teneri statuit in terra ilia' (ibid., p. 2 4 ) .

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details of meetings under more normal conditions. John's quarrel with Innocent III was at its height and, on the motion of William Marshal, the Irish barons renewed their oath of fealty to the king and made suggestions for a reconciliation with the pope. Upon learning this, John replied, thanking them and asking them to set their seals to a letter in the same form as one which the English magnates had issued in his support. At the same time he asked for their proposals for a basis on which peace could be made with the Church: these proposals would, in John's words, be made 'per commune consilium fidelium nostrorum."12 What the proposals ultimately were does not appear, but the text of the barons' letter, such as the king desired, has survived: it is in the name of the Marshal and twenty-six others 'and all the magnates of Ireland/ 13 From this we may guess that, if the assembled barons numbered more than twenty-seven, those who are unnamed were of no great consequence. Since John attached much importance to the matter, and since both the justiciar and the Marshal were laboring on his behalf, we may be sure that the meeting was an exceptionally full one. As we have said, such a meeting consisted of twenty-seven lay barons whom it was worth-while to name. If, then, we allow for such bishops as might attend, we have a fair indication of the maximum numbers of those who might be expected to take part in a 'common council' at this period. That bishops did attend, save in extraordinary circumstances, at this time is, however, very doubtful, for the 'common council' is indistinguishable from a gathering of the leaders of the feudal host. As they have to serve with their arms, so they have to serve with their counsel, and, it may be, on one and the same occasion. This truth we may illustrate from the report that has come down to us of a meeting in 1213. 1 4 Then, we are told, the 'potestas et consilium regis in Hibernia' had gathered at Roscrea (on the borders of the modern counties of Tipperary and Offaly) to repel an Irish chieftain who was wasting the countryside and destroying the castles. The king's council decided to construct a new castle at Roscrea, and began work upon it. While they were so engaged, there arrived the newly appointed justiciar, Henry of London, archbishop of Dublin, and shortly afterward there appeared Cornelius OHeney, the bishop of Killaloe, upon whose land the castle was being built. The bishop had come to protest against 12

Rot. Litt. Claus., i. 132b. Appendix I. 14 Appendix I. The report was made in 1245, but, however inexact in detail, the general features are typical 13

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this use of the land of his church, and threatened with excommunication not only the whole host but even the justiciar. Thereupon they besought him, in the king's name, to permit the castle to remain, for the common good of the country, until the end of the war, promising that then he should have his land back again or be suitably compensated. Upon this basis agreement was reached. We need only comment that this story brings out the primitive structure of government in Ireland under John. As we shall shortly explain, the administration, though employing clerks, does not as yet possess a ministerial hierarchy, which will, indeed, be slow to evolve. When the justiciar does not act upon his own responsibility, Ireland is administered with the common counsel of the magnates, the tenants in chief, and, though our information is scanty, it is enough to enable us to assert that this practice was well established during the lordship of John and must consequently have been introduced soon after the Conquest. This was but an extension of the system of government common to England and the whole feudal world, and, to the men of that time, the natural and inevitable way of administering a country. Let us next look at the system at work in the first forty years or so of Henry Ill's reign. It will perhaps be more instructive to review, by order of subject, the more noteworthy consultations with the magnates rather than to detail them in chronological sequence. We speak of consultations with the magnates because, though they may sometimes have proffered their counsel, we must be careful not to attribute too much spontaneity to them. They were convoked by the justiciar, the king's representative, and the responsibility was his, either for acting on their advice or for presenting it to the king. In the first place we may put together the few items of information we have regarding the modification or amendment of the law. English law had, of course, been administered in Ireland long before John had made its use obligatory in 1210. The law in that year must have been very much as it stands in the book that goes under the name of Glanville, though necessarily modified in detail to suit the circumstances of Ireland. The law is mainly land law: but feudal titles to Irish land do not go back a long way and the periods of limitation will be different from those observed in England. In course of time it became necessary to alter the periods of limitation in various writs, and the way in which this was effected in the case of the writ of mort &ancestor affords not only an example of a changed limitation, but also an instructive illustration of the relations between magnates, justiciar, and king. The

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original period of limitation in this writ, as used in Ireland, was 'post transitum domini Henrici regis de Hibernia.' By 1219 this limitation had become inconvenient to all men in Ireland, great and small, and the justiciar was requested to lay the matter before the king's council when he visited England. The business was, however, crowded out, and the justiciar returned with nothing done. The archbishop of Dublin then wrote to Hubert de Burgh, the English justiciar, asking that the matter should be considered. There was further delay: whether any more representations were made in the meantime does not appear, but it was not until July 1222 that the king gave his decision 'at the request of the justiciar and magnates of Ireland.' Even so, the new period of limitation was to be 'post primam coronationem Ricardi regis, avunculi nostri' and not, as the magnates had wished, 'a coronatione bonae memoriae domini Iohannis regis Anglie.'15 The result may seem to suggest that scant regard was given to Irish opinion, but the decision assimilated the practice in Ireland to that of England, and the story of another writ indicates that the advice of the Irish magnates was usually accepted. This writ was for the purpose of establishing the boundaries between the lands of two owners—'de rationabilibus divisis faciendis.' This, like the writ of mort dancestor, was a writ 'of course,' that is, it was obtainable without question at the request of the plaintiff; but after Richard Duchet and Simon of Hale came to Ireland as additional justices in eyre, which they did in 1228,16 the writ was abrogated and prohibited to be issued as 'of course.' This does not necessarily mean that the writ was no longer obtainable, but that a special application to court would be necessary. Some years later representations reached the king, from which source we are ignorant, and he ordered the justiciar to recall the writ into use, if the magnates so advised and agreed, unless the action of the justices had been with their assent. The Latin words in which the king refers to the magnates should be noted. He speaks of communis assensus magnatum Hibernie and commune consilium et assensus eorundem magnatum: in so far as we can speak of a 'common council' in 1237, we must mean the assembled magnates.17 Of the early history of taxation in Ireland it will be best to treat in a separate chapter.18 Here, therefore, we may be brief. For certain exac15

Letters of Henry 111, i. 31-32; Patent Rolls, 1216-122$, p. 336. With John Marshal (Patent RoUs, 1225-1232, p. 183, cf. Close Rolls, 1237-1242, p. 198). 17 Close RoUs, 1234-1237, p. 501. 18 Below, pp. 39-56. 18

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tions the king, like any other feudal lord, had no need to ask consent, for custom entitled him to demand and required his tenants to pay. But if the king's necessity were extreme and his demands correspondingly high, or if the circumstances were out of the ordinary, then he would deem it prudent to request an aid from his tenants in chief and perhaps from a wider circle. We have already seen that under John an aid might be levied in Ireland in consequence of a council in England at which leading barons, who held lands in Ireland, were present.19 The like does not seem to have happened under Henry III, but there were several occasions upon which aid was requested from the magnates in Ireland and sometimes from lesser tenants, the towns, and even mesne tenants. This might be done either by individual negotiations or at a meeting, and we cannot be sure that on all occasions there were full or representative assemblies, though plainly convenience was likely to be served by calling those interested together rather than by consulting them separately. Apart from law and taxation, there came before meetings of the magnates various matters of administration and politics. It was in the presence of the magnates that Thomas fitz Adam in 1219 20 received from the justiciar the custody of the king's forests in Ireland.21 At another meeting, in 1226, all the king's lieges, with some few exceptions, swore fealty before the justiciar: one of those reluctant to take the oath was Theobald Walter until prevailed upon "by the counsel and earnest exhortation of the magnates and lieges then in attendance on the justiciar.'22 In 1248 the Irish barons sent representatives to the king to ask for the grant of a charter of liberties in terms which they indicated. Since the representatives were not empowered to accept anything less than the barons' full demands, the king, on the advice of his council in England, sent an alternative draft to the justiciar, with instructions to expound it to the barons and obtain their views. But this grant was to be at a price, and the justiciar was instructed therefore Above, p. 11. Patent RoUs, 1216-1225, P- 201. 2 1 Note the discussion that ensued. "Sciatis me recepisse ad mandatum domini regis, sui gracia et vestri, forestam suam Hybernie custodiendam, et quando earn recepi de tradicione iusticiarii Hybemie, archiepiscopo Dublinensi et aliis magnatibus Hybemie presentibus, rogaui iusticiarium quod faceret homines de foresta pascere seruientes quos posui in foresta ad illam custodiendam, sicud solebant facere tempore domini nostri Iohannis regis. Ad quod primo respondit dictus archiepiscopus et dixit quod foresta est sua. . . (P.R.O., Ancient Correspondence, vi. 11; Sweetman has misread the first sentence: Col. Docts. Ireland, 1 1 7 1 - 1 2 5 1 , no. 892). 22 Royal and Historical Letters of Henry III, i. 291. 19 20

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to ascertain what the barons were prepared to give for the liberties the king was prepared to concede.23 It is evident that the negotiations broke down, and unfortunately we are left in ignorance both of the kind of charter the barons wanted and of the kind of charter the king was willing to grant; but nevertheless what we do learn is important, showing, as it does, the Irish barons acting as a body in petitioning the king and meeting the justiciar to negotiate the terms of a charter of liberties. We need give but one final example. In 1255 Florence McFlynn, archbishop of Tuam, complained personally to the king of the grievances suffered by the church of Ireland at the hands of the lay power. These grievances were the holding of pleas outside the shires to which they related, the venality of judges and other royal officers, wrongful attachments, the obstruction offered to Irishmen desirous of making wills, the compulsion of episcopal tenants to perform suit of court although neither they nor the bishops were concerned. Prince Edward had recently been invested with the lordship of Ireland and was proposing to visit the country. He was therefore directed to convoke the archbishops, bishops, abbots, barons, justices, and all the magnates of Ireland, and to afford relief by the advice of the justiciar and other prudent members of his council as well as by the advice of the magnates.24 Edward never did visit Ireland, and the grievances of the Irish Church may never have been considered at such a meeting: but, whatever the practical outcome of the king's directions, the procedure envisaged is instructive. And now, before we proceed to describe other elements in the administrative fabric of Ireland, we may summarize what there is to learn of the 'common council.' The phrase itself is rarely met with, at any rate after the early years of the thirteenth century, and there seems to be nothing to show what name was given to the meetings of the magnates. Perhaps the word was 'colloquy,' sometimes perhaps even 'parliament,' a word that gradually came into fashion all over Western Europe in the thirteenth century. More important than the name is the composition of the meetings. Essentially a court of tenants in chief of the Crown and, in practice, restricted to the more important of them, the greater barons, the ambit was extended to include the higher clergy, though few of these held land by knight service.25 23

Close Rolls, 1247-1251, p. 118. Close Rolls, 1254-1256, pp. 213-14. 25 Apparently only the archbishops of Dublin and Armagh (Cal. Carew MSS. [Book or Howth], pp. 230-31; Eng. Hist. Rev., xviii. 501, 503). 24

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The king asserted, however, that the temporalities of every Irish bishopric were held of the Crown and succeeded in maintaining his claim, even in the province of Armagh, 26 although after the thirteenth century he was forced, without relaxing any of his rights, to acquiesce in the loss of control over elections and temporalities in the West and North. At any time the king's rights were, at best, but grudgingly conceded, and just as the Irish kings stood outside the network of feudal relations, so the Irish prelates stood only on the fringe of it. 27 The 'common council' was, therefore, one of Anglo-Norman magnates, lay and clerical, though we must not imagine that there was any very definite qualification which decided whether a man should be summoned or not, or that the higher clergy were ordinarily summoned. We should also allow apparently for the occasional representation of landowners who were not of the highest rank and, perhaps, of the towns. As regards the lesser landowners, we may surmise that a summons would be addressed to the sheriff and read in the county court: but here we can argue only on the analogy of Magna Carta 28 and of later practice. As regards the towns, we have a rather more definite basis for argument. We have an instruction to the justiciar in 1244 to obtain the advice of all the prudent burgesses of Ireland before proclaiming uniform weights and measures, 29 and we have documents to show that in the later thirteenth century the principal Irish boroughs had an organization of their own, a confederation that involved periodical meetings of representatives.30 But we lack definite information 2 6 Under Henry III, during Edward's lordship, the Irish prelates are told that 'compertum est pro constanti quod custodia omnium episcopatuum vacancium in Hibernia spectat ad regem' (H.M., Cleopatra E. I., fo. 186). This claim was contested by Nicholas MacMaelisa, archbishop of Armagh, and, on a writ of 'quo warranto,' the king established his right to the temporalities of Derry, Dromore, Clogher, Raphoe, and Kilmore. The archbishop petitioned the king in the English parliament for a remedy or compensation, and was met with a reassertion of the rights of the Crown (Cole, Documents, p. 57). The question of compensation was raised again in 1305 (Maitland, Memoranda de Parliamento, pp. 239-40). The escheator's accounts of temporalities show how effectively the king's claims were asserted: see Deputy Keeper's Report, Ireland, xxxvi. 23, 30, 60-61. 2 7 Even in 1277, when the justiciar was directed to arrange terms for admitting the native Irish to the benefits of English law, it is with both Irish prelates and magnates that he is instructed to treat: together they were regarded as representative of the Irish populus (Foedera, I. ii. 540; Prynne, Exact Chronological Vindication, iii. 1218-19). 2 8 Chapter 14 of 1215: see the commentary in McKechnie, Magna Carta ( 1 9 1 4 ) , PP-29 251-53Close Rolls, 1242-1247, pp. 252-53. 30 Hist, and Mun. Docts., pp. 131, 196.

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that either shire or town representatives were actually present at any assembly of magnates; and if such representatives were ever present, we may be sure that it would be for a limited purpose. Gradually the 'common council' came to include a ministerial element. This was the slow growth of the reign of Henry III, as we shall describe in the following chapter. However, by the second half of the thirteenth century a ministerial hierarchy was beginning to evolve and, as we have already indicated,81 in 1255 a distinction was drawn between the council and the magnates. When that stage had been reached, the primitive conception of a feudal court, where common counsel was given by the assembly of tenants in chief, was making way for a different conception, both of methods of administration and of the nature of the consultations between the magnates and the king's representative, and of the occasions when such consultations should take place. 31

Above, p. 17.

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A L R E A D Y in the twelfth century great changes had overtaken the I I feudal state. The tempo of administrative development had quickened with the cessation of barbarian invasions, an increase in wealth, new conceptions of law, the exaltation of monarchy in church and state, and progress in learning. However we arrange these factors in order of importance, it is clear that they worked together to transform, in greater or less degree, the primitive methods of government to be found everywhere in Western Europe after the dissolution of the Carolingian Empire. The domestic officers of the royal household no longer sufficed for the administration of centralized kingdoms. In no country were the changes more marked than in England and Normandy: nowhere else was the evolution of the devices of government so rapid as under the Angevin kings. Perforce largely absentee, they had to provide for the uninterrupted administration of their territories during those lengthy periods when they were not in direct control. Anjou itself, Poitou and Aquitaine presented intractable problems, but England and Normandy were furnished with a judiciary and civil service for which no parallel can be found in the West after the fall of the Roman Empire. 1 The justiciar, the king's alter ego, acting through the court of the exchequer, provided in England an impersonal monarchy which survived unimpaired the hazards and mischances of civil war, interdict, revolution, and a prolonged minority. Ireland, too, was provided with a justiciar, but the administration was weakened and reduced almost to a negation because Henry II converted the halfconquered and highly feudalized island into an appanage for his youngest son, who, save for a brief period, was himself an absentee and who, for a time during his brother s reign, suffered forfeiture. The Irish justiciars, succeeding each other in rapid succession,2 were left to improvise a day-to-day administration, and doubtless provided it, for the most part, from within their own households: major questions 1

We have excluded from consideration the special case of the kingdom of Sicily. The list given by Orpen, Ireland under the Normans, i. 15-16, iv. 307 (followed by Wood in Procs. R. Irish Acad., xxxvi. C. 2 1 8 - 1 9 ) is not entirely satisfactory for the reign of Richard I (see below, p. 21, n. 5 ) but contains the main facts. 2

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were discussed, as we have seen, with the greater barons, but it was no duty of these to give daily counsel or to perform the routine tasks of government. The application to Ireland of the English common law required the apparatus of the county court, the sheriff and his subordinate officers;3 but there seem to have been no professional justices, and any system of accounting for the revenue of the lord of Ireland was simple and modest. The justiciar was not only the supreme administrator and judge, but he controlled finance and was required to account personally for receipts and expenditure.4 We must emphasize the essential facts that Ireland did not fall within the jurisdiction of the highly efficient English exchequer, and that from 1177 onwards the Irish justiciar was nominally John's representative. Doubtless during Henry II's lifetime John's lordship was largely a fiction, but the king made no attempt to assimilate the government of Ireland to the government of England, and under Richard I the justiciar really was John's servant.5 It would be unreasonable to expect, in these circumstances, any more elaborate a structure of government than—to make an obvious comparison—that obtaining in Anjou, Poitou, or Aquitaine, where a feudal system continued to function throughout the twelfth century with few checks and hindrances, and a strong ruler could hope to do little more than maintain his own rights as suzerain and suppress disorder and private war. In Ireland the situation was transformed by the accession of John to the throne: the lord of Ireland became king of England, and he took the first steps toward assimilating the government of the two countries. It would seem evident that, on John's accession, there was already an organization at Dublin for collecting the revenue and safeguarding the treasure of the lord of Ireland. The existence of an exchequer in 3 For the Dublin county court and sheriff c. 1193, see Rot. Curiae Regis, ii. 17273. Henry Tyrel is named as Serjeant of the county of Dublin in 1192 (Cal. Patent Rolls, 1334-1338, PP- 4 1 5 - i 6 ) 4 This is evident from the fine of 1,000 marks which Hamon of Valognes agreed to pay in order to be relieved of accounting for his receipts and expenditure in Ireland (Rot. de Oblatis, p. 2 6 ) . 3 At the time of Henry II's death, the justiciar was John of Courcy. When he was relieved is uncertain, but he was succeeded by Peter Pipard, with whom William le Petit was associated. After Count John's forfeiture on 31 March 1194, their authority lapsed, and Richard I seems to have been represented by Walter de Lacy and John of Courcy. Count John was restored in June 1195, and appointed as his justiciar Hamon of Valognes, who apparently held office until 1198 and was displaced by Meiler fitz Henry. This problem, with detailed references, must be reserved for another occasion.

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1200 6 and the transmission of large sums to the king from Ireland in the following years 7 suggest an establishment of some standing, as old perhaps as John's visit in 1185. This was the permanent element in the administration, but it was not the predominant element. Doubtless there was a clerk in charge of the exchequer, 8 but he was not of any great status or dignity. The first treasurer we know by name is John of St. John: he did not arrive in Ireland until late in 1 2 1 2 and, although he appears to have been responsible, under the justiciar, for the exchequer,9 he seems not to have been given the formal title of treasurer until 1 2 1 7 or the latter part of 1216. 1 0 Moreover, the functions of the Irish exchequer appear to have been almost exclusively financial, and it was not the seat of a powerful court of law as the exchequer was in England. Royal justice on the English model was but slowly organized in Ireland. The justiciar had no power to issue common-law writs, 11 and he was precluded from trying pleas of the crown unless specially authorized. 12 Whatever may have been the situation while John was no more than lord of Ireland, in the early years of his reign both civil 13 and criminal 14 actions might come to England for trial. The inconvenience of this system must have quickly manifested itself, and the policy was reconsidered in 1204, with the result that the justiciar was given limited authority to issue writs concurrently with the chancery in England. 15 The position was again reviewed late in 1207 during a visit to the king of the justiciar, Meiler fitz Henry, and he was em6 Rot. Chartarum, p. 61 b. For references to the exchequer in subsequent years, see ibid., pp. 107b, 173, and Rot. Litt. Claus., i. 47b, 96b. 7 Rot. de Liberate, p. 70; Rot. Litt. Claus., i. 12, 71b, 78b. 8 The practice of enrollment obviously implies a clerical staff: there is a reference to the rolls of the Dublin exchequer in May 1201 (Rot. de Liberate, p. 1 3 ) . The pipe roll of 1 2 1 2 contains references to rolls of the 11th, 12th, and 13th years (Irish Pipe Roll, pp. 7, 48, 54, 66). 9 Rot. Litt. Claus., i. 132b: he is sent 'ad curam capiendam . . . de scaccario nostro Hibernie.' 10 Ibid., p. 305b: and see Irish Hist. Studies, iii. 146, n. 3. 1 1 This is clear from a writ of 1 1 February 1204 to the justiciar, directing him to make it known that the king will not issue writs of novel disseisin except where the disseisin happened after his first coronation (Rot. de Liberate, pp. 1 0 5 - 6 ) . See also Rot. de Obtatis, pp. 20, 26-28, 30, 36, 40, 50, 66: these entries are all of 1 John, and there are similar entries referring to the purchase of writs in later years. 12 Rot. Chartarum, p. 98b: the king reserves to himself pleas touching the crown, coinage, and exchange. 1 3 R o t . de Oblatis, pp. 30, 76, 79, 1 7 5 ; Rot. Litt. Pat., p. 77 (Milo de Bret). 14 Rot. Curiae Regis, ii. 1 7 2 - 7 3 ; Rot. Litt. Pat., p. 7 7 (Geoffrey Marsh and others, accused of arson, robbery, manslaying, and other crimes). 15 Ibid., pp. 47b, 76b. Litigants continued to seek writs in England: see Rot. de Oblatis, pp. 297, 330, 382.

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powered to try criminal actions.1" The king's visit to Ireland in 1210 evidently led to a still further delegation of authority,17 and a series of documents of later date show that the intention was to bring the judicial administration of the two countries into line.18 It is evident too that an Irish judiciary must have been constituted in John's reign,19 though we hear little of it,20 and in 1221 its most prominent, if not its sole, member was an itinerant justice.21 A common bench sedentary at Dublin seems not to emerge until the middle of the century.22 Before 1232 there was nothing in the nature of an Irish chancery distinct from the organization responsible for issuing the justiciar's writs, which may have been attached to the exchequer, but of which we know nothing. In that year Ralf Neville, bishop of Chichester, who already held the chancery in England, was granted the chancery of Ireland: he was, of course, an absentee, but was represented at Dublin by a deputy, Geoffrey de Turville, archdeacon of Dublin.23 Upon Neville's death in February 1244, his representative in Ireland, who was then Robert Luterel, was recognized as the king's chancellor.24 Thus the two chanceries were separated, and from this year the series of Irish chancellors really begins. It is perhaps well to remark that this development was possible only because the chancellor had ceased to be regarded as the personal servant of the king, and the chancery had come to be considered as a department separate from the king's house16

Rot. Litt. Pat., pp. 77, 80. Above, p. 14. Rot. Litt. Claus., i. 497, ii. 166b; Patent Rolls, 1216-1225, p. 336; ibid., 1225-1232, pp. 48-96. See also the writ of 10 November 1 2 2 7 , transmitting a register of writs upon which the justiciar's writs were to be based ( F . W . Maitland, Collected Papers, ii. 8 1 - 8 3 ; Early Statutes Ireland, p. 2 2 ) . 19 On 9 November 1207 the king refers to the justices to be appointed by himself or the justiciar (Rot. Litt. Pat., p. 7 6 ) . Shortly afterward justices are found assessing the thirteenth of 1 2 0 7 (below, p. 4 7 ) . 20 But early in Henry Ill's reign there are references to itinerant justices ( E x cerpta e Rotulis Finium, i. 1 1 ) and to forest justices (Letters of Henry III, i. 8 2 ) . 21 Rot. Litt. Claus., i. 4 5 1 - 5 1 ^ . 22 The earliest reference we have found is on 6 January 1 2 5 5 , when Richard of la Rochelle is directed 'quod poni faciat in respectum iudicium loquele que fuit coram iusticiariis de banco Dublinie' (Role Gascon, 1254-1255, no. 1 3 ) . The justices of the bench are also called the justices at Dublin, as in a case brought before the parliament of Oxford in 1 2 5 8 (Proc. R. Irish Acad., xxxviii. C. p. 134, n. 4 5 ) . There are references to the rolls of amercements before the justices of the bench from 46 Henry III onwards (Deputy Keeper's Report, Ireland, xxxv. 43, 46-48; ibid., xxxvi. 26). 23 Close Rolls, 1231-1234, pp. 1 1 2 - 1 3 . 24 Cal. Docts. Ireland, 1171-1251, p. 4 1 7 ; Cal. Patent Rolls, 1232-1247, p. 467; Cal. Archbishop Alen's Register, p. 70. 17

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hold. In the twelfth century the need for the equivalent of a resident chancery in England and in Normandy had been met by empowering the justiciar to issue writs, 25 and it was a natural extension of this principle to give a like power to the Irish justiciar. Gradually, after the loss of Normandy, it came to be realized that the office of justiciar was redundant in England and that, if the king was permanently resident in his kingdom, as Henry III was likely to be, there was no need for an all-powerful minister and the organization his office implied. The grant of the Irish chancery to Ralf Neville followed, indeed, upon the fall of Hubert de Burgh, the last of the great English justiciars. The constitution of a separate Irish chancery and the appearance of an Irish chancellor were, therefore, the consequence of an administrative development which was not planned in relation to the specific needs of Ireland. The result, however, was that the Irish administration became more self-contained. We should add that, beside the treasurer and the chancellor, another important minister in the thirteenth and fourteenth centuries was the escheator. The duties of the office must have been performed very early in the history of the Conquest, for escheats were an inevitable incident of feudal tenure, but they do not appear to have been assigned to a particular minister until Thomas fitz Adam was sent to Ireland early in 1217, and he does not seem to have borne a specific title.28 As the administration became more highly organized, the principal ministers became responsible for the day-to-day conduct of their departments, while the responsibility of the justiciar became a stage removed. The unity of the administration was secured by constituting the ministers the nucleus of an inner council, upon whose advice the justiciar relied. Necessarily this development was gradual, and it was not until nearly the close of the Middle Ages that the ministerial element became plainly dominant in that council. The position in John's reign is obscure, but early in the reign of Henry III some light is thrown upon the composition and functions of the council. Geoffrey Marsh had been appointed justiciar in July 1215: his administration proved unsatisfactory, and in April 1 2 1 7 he was provided with a coadjutor in the person of the archbishop of Dublin, Henry of London. The justiciar was told to do nothing without his counsel and, in particular, not to authorize expenditure without it; at the same time the 25 26

Memoranda Roll, I John, Introduction, pp. lxxv-lxxxvii. Rot. Litt. Clans., i. 296b, 364b, 365, 4000-401.

SECRETUM

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25

barons were notified of the archbishop's appointment and were required to give their aid and counsel.27 Two years later the archbishop's position was strengthened by his nomination as keeper and bailiff of Ireland,28 while a few months subsequently the justiciar was required to call to councils John of St. John and Thomas fitz Adam whenever matters affecting their offices were considered.29 We see then that the justiciar had as his principal counsellor and, in effect, controller the archbishop of Dublin, that he was expected also to be assisted by the counsel of the principal barons, and that, when financial matters were discussed, the treasurer and the escheator (as we may call Thomas fitz Adam) were to be present. Nevertheless, the justiciar controlled the revenue to such purpose that the king could obtain nothing from him and, after he was superseded, he still retained the rolls and records relating to his term of office.30 The council, in fact, had no executive authority: whether it performed its duty well or ill depended upon the chief governor, and this is true of Ireland throughout the Middle Ages. Until the reign of Edward I we catch but glimpses of the council. As we should expect, the chancellor's deputy, Geoffrey de Turville, was made a member of the council in 1232, 31 as was his successor, Robert Luterel, in 1235. 32 The archbishop of Dublin continued to be the most important member of the council, and in 1235 William, bishop of Leighlin, was specially appointed to it.33 In 1260 the witnesses to an important deed were the bishop of Ossory (the treasurer), the bishop of Meath, Waleran de Wellesley, a justice itinerant, and John de Cogan, Walter de Burgh, John fitz Thomas and Maurice fitz Maurice. The absence of the chancellor and the escheator is to be noted, but otherwise this seems to be the council at its maximum.34 In 1263 an action 27

Patent Rolls, 1216-1225, p. 5 7 . Rot. Litt. Clous., i. 390&. 29 Ibid., p. 3 9 9 6 . 30 Ibid., pp. 4 7 6 6 , 505k. 31 Close Rolls, 1231-1234, pp. 1 1 2 - 1 3 . 32 Ibid., 1234-1237, p. 166. 33 Ibid., pp. 1 7 6 - 7 7 . 34 Calendar of Archbishop Alen's Register, p. 1 3 2 . The year 1 2 6 9 , assigned to the document, is impossible and has resulted from the editor's disregard of a passage which, in the original text, follows the letters patent. The date lies after the death of the justiciar, Stephen Longespee, in the first part of 1 2 6 0 (Wood, ' T h e Office of Chief Governor in Ireland' in Procs. R. Irish Acad., xxxvi. C. 2 2 0 ) and before the death of the bishop of Ossory sometime prior to 4 June of the same year ( C a l . Docts. Ireland, 1252-1284, p. 1 0 6 ) . 28

26

THE I R I S H P A R L I A M E N T IN THE M I D D L E

AGES

between the archbishop of Dublin and Theobald Butler was heard before the council, consisting of the justiciar, the treasurer and the chancellor, in that order of precedence.35 In 1264 we get a list of the members of the council present at a meeting of parliament: the justiciar (Richard of La Rochelle), the treasurer, the chancellor, and the escheator, together with Geoffrey of Joinville (lord of Meath), a knight, Thomas of 'Ippegrave,' on a special mission to Ireland,38 and others unnamed.37 At a meeting of the council in February 1273, at which the widowed countess of Ulster complained of the conduct of the steward of Ulster, there were present the bishop of Meath, then treasurer, the chancellor, Fromund le Brun, the escheator, John of Sandford, and two itinerant justices, Richard of Exeter and William of Caistor. The absence of the justiciar, Maurice fitz Maurice, is to be explained by his duties as military leader which called him to Connacht, and the bishop of Meath was evidently acting as president of the council in his place.38 At a meeting in 1276, at which the archbishop of Cashel produced a writ from the king, requiring an inquisition into the proposal to construct a gaol in Cashel, there were present the justiciar ( Geoffrey of Joinville ), the chancellor, and the escheator, with some minor counsellors unnamed. This meeting, it may be noted, was held in the exchequer.39 As we obtain more information, we distinguish three principal elements in the council: magnates, prelates, and ministers. Geoffrey of Joinville, already prominent under Henry III, is active under Edward I until shortly before his retirement from the world in 1308.40 Thomas of Clare, lord of Thomond, was named as a member of the council in 1280.41 Richard de Burgh, earl of Ulster, 35

Calendar of Archbishop Alen's Register, p. 98.

Thomas of Ippegrave was chiefly employed in Gascony, of which he became seneschal in 1268. His visit to Ireland cannot have been of long duration, for he was apparently back in England early in 1265 ( Close Rolls, 1264-1268, p. 62). For other particulars, see Rôles Gascons, i. nos. 3194, 4272, 4530 and Suppl., p. cxix; 36

Cal. Patent Rolls, 1258-1266,

34237

p. 73; ibid., 1266-1272,

pp. 15, 2 1 5 , 248, 305, 3 1 7 ,

Hist, and Mun. Docts., pp. 141-43.

P.R.O., Ancient Correspondence, viii. 149. The earl of Ulster had died in 1271, and the lieutenants appointed by Edward I to act on his behalf had put in William fitz Warin as steward of Ulster and guardian of the young earl, still a minor. 38

Prynne, Exact Chronological Vindication, iii. 1201-2. Cole, Documents, xiv, xvi, 56, 90; Cal. Patent Rolls, 1292-1301, Select Cases in the King's Bench, ii, 126. 41 Cal. Close Rolls, 1279-88, p. 55. 39

40

p. 589; Sayles,

SECRETUM

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27

attended the council in the early fourteenth century. 42 The council was not, however, limited in numbers, and lesser barons are found in attendance from time to time. T w o lists, of 1 3 0 3 and 1307, are instructive. In the earlier the names appear in this order: Richard de Burgh, Geoffrey of Joinville, the justiciar (John W o g a n ) , the chancellor, the treasurer, John fitz Thomas, John de Cogan, Edmund Butler, John de Barry, and Maurice of Rochefort. 43 In the latter the order is: Richard de Burgh, the justiciar, Hugh Biset, Thomas de Mandeville, William de Montague, and Lawrence de la Ryvere. 4 4 T h e two last-named had been sent over to Ireland by the king, and w e need not remark upon them at this point. W h a t is significant is that both Richard de Burgh and Geoffrey of Joinville take precedence of the justiciar, and that on one occasion there are five lesser barons present and on the other occasion two. That no bishop is present on either occasion seems to be no more than an accident, for John of Sandford, archbishop of Dublin ( 1 2 8 6 - 9 4 ) , is called the head of the king's council in Ireland, 45 and a few years later the bishops of Meath and Ossory, as well as the archbishop-elect of Dublin, are found among the members. 46 The prior of Kilmainham, whose successors continued to sit on the council and to occupy high ministerial office, also appears among the councillors under E d w a r d I. 4 7 42 Besides the references given below, the following may be noted. In 1 3 1 a the justiciar adjourned an action in order that there might be present the whole of the council and also the earl of Ulster and other magnates: he duly attended with Roger Mortimer 'et aliis magnatibus de concilio domini regis in hac terra' (Chartularies of St. Mary's Abbey, Dublin, ii. 419). In 1 3 1 4 there was a discussion 'coram comite Ultonie et aliis de consilio' regarding compliance with a writ requiring the removal of an action to England (Memoranda Roll, Hilary, 7 Edward II, m. 24c?: in P.R.O., Dublin, Record Commission Transcripts, Vol. ix). It will be noted that the magnates are not considered to be members of the council in the same sense as the principal ministers are. So in 1300 the justiciar is instructed to make inquiries 'convocatis cancellario, thesaurario et baronibus de scaccario, iusticiariis de banco et consilio domini regis in partibus illis per vos ad hoc conuocando': the council includes bishops and others (P.R.O., K.B. 27/161 [Easter 1300], m. 41 d: Cal. Justiciary Rolls, 1295-1303, p. 363). For Arnold le Poer's possible membership of the council in 1324, see below, p. 74. 43 These names appear as witnesses to a charter in favor of Roger le Bigod, earl of Norfolk, which issued from the Irish chancery on 4 July 1303 (B.M., Additional MS. 4790, fo. 956, 96: from Communia Placita, 32 Edward I, m. 20d). 44 Cal. Justiciary Rolls, 1303-1307, p. 333. 45 Cole, Documents, p. xxvi: 'par le record le erce eveske de Dyvelyn ki est chef du conseil le rey en Irlaunde.' He had been escheator, and he administered the government in 1288-90. 46 Cal. Patent Rolls, 12.81-1292, p. 510; Foedera, I. ii. 762; and see below, p. 28, n- 5547 Cole, Documents, p. 98-99, and see below, p. 28, n. 50.

28

THE I R I S H P A R L I A M E N T IN THE M I D D L E AGES

Turning to the ministers, we may remark that the chancellor, who had ranked below the treasurer under Henry III, 48 had established his precedence by the fourteenth century and probably in the closing years of the thirteenth.49 Henceforward he normally took his place, after the justiciar, as the principal member of the council,50 though sometimes a special appointment would be made that gave another member precedence. However large the membership of the council might be, effective powers rested in a small group. In the early 1290's, when the chancellor, Master Thomas Cantok, wished to act swiftly and secretly, he consulted only the justiciar (William de Vescy), Geoffrey of Joinville, and the treasurer.51 The escheator continued, however, to be a minister of importance. Walter de la Haye, who occupied the office under Edward I, acted as chief governor on at least three occasions,52 and in 1346 Walter de Bermingham, on his appointment as justiciar, was instructed to act in all important matters by the advice and counsel of the chancellor, the treasurer, and the escheator.53 But it was not office alone that gave admittance to the council or conferred precedence there. In 1288 Geoffrey Brun, who is entitled merely clericus regis, evidently occupied a prominent position,54 and a little later Thomas of Chedworth, dean of St. Patrick's and justice of the bench, seems to have exercised great influence, much in excess of his status as a judge.55 4 8 This is indicated by the order of names in the lists of the council cited above (p. 26). It is to be remarked that Geoffrey de Turville, the first deputy chancellor,

was promoted to b e treasurer b y 1 2 3 5 (Close Rolls, 1234-1237, 49 50

p. 166).

Apparently with the appointment of Thomas Cantok. We may note the descriptions applied to the chancellor: 'de concilio regis post

iusticiarium principalis' (Proceedings against Alice Kyteler, p. 3 4 ) ; 'le priour de

Kylmaighan, vostre chaunceller, q'est le secunde de vostre conseil' (P.R.O., Ancient Correspondence, xxxv. 24). In the numerous letters addressed to the council in Ireland, the order of names is regularly justiciar, chancellor, treasurer. 51

Sayles, Select Cases in the King's Bench, ii. cxxxv ( A p p . xii, k ) : the date is 4

May in one of the years 1292, 1293, 1294. 52 For his terms of office, see Wood in Proc. R. Irish Acad., xxxvi. C. 222-23. He attended, as a minister, the Westminster parliament of Easter 1290 (Cole, Documents, pp. 69, 70, 81), and he is found acting with the justiciar and the prior of Kilmainham (ibid., p. 98). 53 P.R.O., Ancient Correspondence, xxxviii. 110: a privy seal letter of 18 May 1346 to John Morice, the chancellor, informing him that the king has appointed Walter de Bermingham to be justiciar 'de faire et oevrer en toutes les busoignes qi portent grant charge par l'avis et conseil de vous et de nostre tresorer d'Irlande et de nostre cher et foial Roger Darcy, nostre eschetour illoqes.' 5 4 Cole, Documents, pp. 90-91. He later became chamberlain of the exchequer. 5 3 For example, in the course of the proceedings against John fitz Thomas, arising out of his capture of the earl of Ulster, he was admitted to mainprise at a meeting of the council on 3 November 1294 'in pleno scaccario': there were present Thomas

SECRETUM

CONSILIUM

29

From what has already been said it will be apparent that the council might vary in size and membership. It is, indeed, impossible to assign limits to its membership narrow enough to exclude those prelates, barons, and ministers who might be summoned by writ to take their place in the council in parliament. Such a summons might be given although the occasion was not a parliament: for example, when in 1300 all those who were of the king's council in Ireland, as well bishops as others, were summoned to declare the custom hitherto observed in Ireland regarding the limitation imposed upon the disposal of chattels by will, it is evident that the assembly was very much like the council in parliament.56 On the other hand, when the earl of Ulster was sworn in as lieutenant in Christ Church, Dublin, in pleno consilio, on 17 July 1331, those named as present were only Anthony de Lucy, the justiciar, Adam of Limber, the chancellor, Thomas de Burgh, the treasurer, and Simon fitz Richard and Richard Brown, the justices of the common bench: other members of the council were there but are unnamed and were evidently of inferior status.57 This meeting of a handful of ministers is a plenary meeting of the council, a meeting that is held with open doors so that its proceedings shall be public. How then shall we reconcile the inclusion, under one and the same description, of this small body of men and the much larger and more distinguished gathering of 1300? The answer, we suggest, is this. Let us picture a series of concentric circles: there is a small innermost circle which, as we shall shortly learn, is called secretum consilium., but this may be almost indefinitely expanded, as the occasion demands, by summoning any of those upon whom the king has a right to call for counsel but who are not qualified as members of the secretum, consilium, the privy council. The larger meetings we may sometimes, for convenience, call great councils, although these words are not used by contemporaries in this sense until well into the fourteenth century.58 fitz Maurice, then keeper, the chancellor, the treasurer, the bishop of Meath, Thomas of Chedworth, elect of Dublin, and others unnamed (B.M., Additional MS. 4790, fo. 536: from Communia Placita, 24 Edw. I). Though twice elect, Chedworth was never archbishop of Dublin: for his career, see W. M. Mason, History of the Cathedral Church of St. Patrick, pp. 115-17. 56 P.R.O., K.B. 2 7 / 1 6 1 (Easter 1300), m. 4id; Cat. Docts. Ireland, 1293-1301, no. 737 (p. 348). For the parallel entry on the Irish justiciary roll, see Cal. Justiciary Rolls, 1295-1303, p. 363 and Early Statutes Ireland, p. 226. 57 B.M., Additional MS. 4790, fo. n6fo: from Placita de anno regni regis Edwardi tercii post ultimum conquestum Hibernie quarto incipiente quinto, m. 1 yd. 58 Below, pp. 104-5.

30

THE IRISH PARLIAMENT

IN T H E M I D D L E

AGES

There are two marks of membership of the secretum consilium: the councillor's oath and, for those who are not ministers, the councillor's fee. Even important ministers did not automatically become members of the privy council. Thus, on the same occasion that the earl of Ulster took the oath as lieutenant in 1 3 3 1 , John Morice was admitted to the council and took the customary oath as councillor. 59 Morice had been appointed escheator on 2 March 1 3 2 9 and had certainly entered upon his duties in that year, 60 but evidently he had not been sworn of the council for two years or so. W e rarely get such detailed information as in this case, but there are sufficient references to show that those admitted to the privy council swore a specially devised oath. 61 The earliest instance w e know of an unofficial councillor who received a fee is Philip of Slane, a Dominican friar, who was granted five marks a year. This began as early as March 1 3 1 8 , and perhaps before, and continued after his promotion to be bishop of Cork in 1 3 2 1 . 6 2 A fee of £ 4 0 a year was paid to Walter de Bermingham and to Fulk de la Freigne in 1344, 6 3 and it is in connection with their admission to the council that w e get one of the earliest references to the secretum 59 B.M., Additional MS. 4790, fo. 116b: 'Et memorandum quod eodem die Iohannes Moriz miles fuit admissus ad consilium domini regis et prestitit iuramentum se bene et fideliter etc. in forma consueta." 60 For his appointment, see Cal. Fine Rolls, 1327-1337, p. 125. In 1329 Ardee was committed to his custody by the justiciar and council (P.R.O., C. 49/6, file 6, no. 15). 61 In a petition from Richard of Kexby, prior of Kilmainham, in 1304, he says: 'Avis est a aucunes gentz qe bon serreit qe le dit Richard feust jurez du consail le roy en Irelande, se u pleist' (P.R.O., Ancient Petition, no. 9628). In a writ of 25 July 1323 the king instructs the Irish chancellor to assign 'aliquos fideles nostros et de consilio nostro iuratos in partibus predictis' to hold an inquisition: the resulting commission is addressed to two royal clerks, Thomas of 'Warylowe' and William of Barlby (P.R.O., C. 47/10/18, no. 17). 62 See the entry in the Irish Issue Roll, Michaelmas 1323-Trinity 1324: 'Fratri Philippo de Slane de ordine fratrum predicatorum, episcopo Corkagiensi, de consilio domini regis in Hibemia iurato pro arreragiis feodi sui quinque marcarum quas dominus rex ei concessit singulis annis ad totam vitam suam . . . a decimo die Marcii anno regni regis supradicti undecimo . . (P.R.O., E. 101/238/12). See also Cal. Close Rolls, 1318-1323, p. 161. His service on the council was interrupted by journeys to Rome on the king's business (ibid., p. 165; Foedera, II. i. 553-54). 63 The terms of the appointment are indicated by a writ of 3 March 1347: 'cum nuper concessimus dilecto et fideli nostro Waltero de Bermyngham quadraginta libras de nobis annuatim percipiendas ad essendum de secreto consilio nostro et ad assistendum nobiscum et illis de consilio nostro tam pro guerra quam pro pace, prout in quadam diuidenda inter nos et ipsum Walterum facta plenius continetur. . . Payment appears to have been made from Michaelmas 1344 (P.R.O., E. 1 0 1 / 2 4 1 / 1 3 ) . De la Freigne had made a similar agreement from this date (P.R.O., E. 372/191, m. 42d; 197, -m. 46).

SECRETUM

CONSILIUM

31

consilium,.64 As leading barons, though not in the first rank, they would, in a wider sense, be members of the council, but as such they would receive no payment and, indeed, they would be liable to be amerced if they failed to respond to a writ of summons to parliament. They would not, however, as barons be expected to give constant attendance at the council, and it is for this that they receive their wages. It may be that such great men as Geoffrey of Joinville and Richard de Burgh and successive archbishops of Dublin, perhaps even priors of Kilmainham, were proud to serve on the privy council without fee or reward. But in the fourteenth and fifteenth centuries great men who were not holding office did not scruple to accept a councillor's wages.65 Two factors are to be remarked in the fourteenth century that operated to transform the council: the inclusion of relatively minor ministers who were sworn of the council, and the infrequency with which ecclesiastical and lay members took part in the routine deliberations of the council, unless, indeed, they held ministerial office. In 1320 the membership of the council is stated to consist of the justiciar, the chancellor, the treasurer, the justices of the common bench, and the barons of the exchequer.66 This cannot be a complete list,67 but the ministers named were presumably at this period the significant part of the council. It 0 4 A little earlier is the payment, not later than 9 January 1344, of £.2.ios. to Thomas Woodhouse, clerk, for his service long rendered in the king's secretum concilium ( Deputy Keeper's Report, Ireland, liv. 42). We may add some subsequent references. Of William of Windsor it is said that 'il prist une privé counseil' soon after his arrival in Ireland in 1369, and James Pickering, chief justice of the king's bench, is said to be 'de secreto consilio ipsius locum tenentis' ( M. V. Clarke in Proc. R. Irish Acad., xli. C. 83, 114: reprinted in Fourteenth Century Studies, pp. 185, 221; Foedera, III. ii. 978). 6 5 The earl of Kildare was receiving payment of £ 2 0 in 1374 for his attendance at councils ( Cal. Rot. Pat. Hib., p. 85, no. 8 ). Stephen Vale, bishop of Meath, was appointed to the council in the same year with a fee of 100 marks (below p. 33, n - 75)- For a petition from his successor, Alexander Balscot, for payment for service on the council, see Graves, RoU of King's Council, pp. 60-61. Balscot had relinquished office as justiciar on 8 October 1392 and apparently was immediately given a seat on the council. The warrant for paying him a fee of 40 marks is dated 3 December so that, when he presented his petition, he had not served two months. When next he was appointed to the council, the king promised that he would be well remunerated: see below, p. 34, n. 81. Particulars of wages paid in the fifteenth century are given later. 66 Early Statutes Ireland, p. 286. 6 7 In the same year, at the hearing of an action removed from the bench to the council, there are present the justiciar, chancellor, treasurer, two justices of the justiciar's bench, the escheator, two barons of the exchequer and others unnamed (Hist, and Mun. Docts., p. 435). At the same period Philip of Slane was a member (above, p. 30, n. 62).

32

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IN T H E M I D D L E

AGES

was already the practice under E d w a r d I to call the justices and the barons of the exchequer to the council for special purposes, 68 and although in 1 3 3 1 at a plenary meeting the barons of the exchequer were not present, their absence, like that of the escheator, may have been due to temporary or personal reasons. On 2 2 February 1 3 4 1 , on the admission of the archbishop of Dublin as keeper, there were present the treasurer, the chief justice of the common bench, w h o was also acting as escheator, the chief justice of the justiciar's bench, the chief baron of the exchequer, and the chancellor of the exchequer. 69 A year later, when another keeper was admitted, there were present the acting chancellor, the acting treasurer, the escheator, the chief justice of the common bench, the chief baron of the exchequer, a justice of the common bench, two serjeants-at-law, and the keeper of the rolls of the justiciar's bench. 7 0 In 1346, on Roger Darcy's election as justiciar, the list is much the same as in 1341—chancellor, treasurer, chief justices of the two benches, a baron of the exchequer, and the chancellor of «8 Sayles, Select Cases in the King's Bench, ii. 126, 134; Cai. Justiciary Rolls, 1295-1303, p. 363; above, pp. 26-28. Robert Bagod, chief justice of the justiciar's bench and subsequently of the common bench, received a fee of 20 marks a year from Michaelmas 1275 as a member of the council and presumably attended regularly (Cai. Docts. Ireland, 1252-1284, pp. 238, 290, 400, 478, 492, 539; ibid., 12851292, p. 77). This exceptional arrangement in itself suggests that at this period the justices were usually summoned to the council when they were specially required. 89 We cite the commission from the Coram Rege Roll of Michaelmas, 1352 (P.R.O., K.B. 27/369, m. 64). There can be no doubt that the witnesses named were present at the council when the keeper was elected: Rex omnibus ad quos littere presentes peruenerint, salutem, Sciatis quod nos de fidelitate probata et circumspeccione prouida venerabilis patris Alexandri, archiepiscopi Dubliniensis, plenarie considerantes, constituimus ipsum custodem terre nostre Hibernie ad faciendum omnia et singula que ad saluacionem et bonam custodiam eiusdem terre et conseruacionem pacis nostre ibidem ac officium iusticiarii terre illius pertinent et honorem nostrum et comodum inibi concernencia quamdiu nostre placuerit voluntati, percipiendo per annum ad scaccarium nostrum Dublinie quamdiu custodiam predictam habuerit quingentas libras, pro quibus terram predictam custodiet et erit se vicesimus de hominibus ad arma cum tot equis coopertis continue dum custodiam habuerit supradictam. In cuius rei testimonium etc. Datum Dublinie in presencia Hugonis de Burgh thesaurarii nostri terre predicte, Simonis fitz Richard capitalis iusticiarii nostri de banco Dublinie et custodis escaetorie terre nostre predicte, Elie de Asshebourn capitalis iusticiarii nostri ad placita iusticiarium nostrum Hibernie sequencia tenenda assignati, Roberti Poer capitalis baronis scaccarii nostri predicti, et Roberti de Emeldone cancellarii eiusdem scaccarii, et aliorum de Consilio nostro, xxii. die Februarii anno regni nostri Anglie quintodecimo, regni vero nostri Francie secundo. 70 The commission, transcribed on the same membrane as the above, is dated at Trim on 17 March 1342.

SECRETUM

CONSILIUM

33

the exchequer.71 In 1376, on the admission of the earl of Kildare as justiciar, those named as present are only the chancellor, the treasurer, and the chief justices of the two benches.72 On every occasion it is indicated that other, unnamed, councillors are present, and it is presumably a matter of accident whether minor ministers are named or not. Clerks would necessarily be present to perform the secretarial work and would doubtless be sworn to secrecy, and there is evidence to suggest that others might be present exceptionally.73 When, between 1375 and 1382, we get lists of the ministers summoned to parliament, they do not include, beside the chancellor and the treasurer, more than the chief justices of the two benches, the barons and chancellor of the exchequer, and the law officers.74 It is evident that these lists correspond closely to the earlier lists of ministers present at council meetings and represent the normal ministerial membership of the privy council. Naturally the writs of summons to parliament give us no indication of the non-ministerial members of the privy council, who at this period would be likely to be prelates or temporal lords. But we know that in the closing years of Edward III and the early years of Richard II, Stephen Vale, bishop of Meath, was an active member, and he is, in fact, described at one time as chief of the council.75 Under Richard II, Maurice fitz Thomas, earl of Kildare, was prominent in the council,76 71 The commission, dated at Dublin on 10 April, is transcribed in Harris Collectanea, ii. fo. 172, from Patent Roll, 20 Edward III; abstracted Cal. Rot. Pat. Hib., p. 49, no. 44. 72 Cal. Carew MSS. (Book of Howth), p. 3 5 1 . 73 For clerks to the council, see Cal. Rot. Pat. Hib., p. 85, no. 13, where mention is made of two clerks, and ibid., p. 106, no. 26, for a clerk, Tilomas Ford, reading letters patent from the king on 13 October 1379 before the council, the earl of Kildare and others: see also above, p. 3 1 , n. 64. Note, too, that in 1326 the justiciar, John Darcy, was instructed to act with the others of the council when granting pardons (Cal. Patent Rolls, 1324-1327, p. 3 0 1 ) . This may perhaps be explained by the vacancy in the office of treasurer from Hilary to Michaelmas, when Adam of Harvington acted as custos officii thesaurarii (P.R.O., E. 101/238/26), although the chancellor, Roger Outlaw, appears to have been available. See also p. 30, n. 61, above. 74 Below, pp. 135-36. 75 P.R.O., E. 368/157 (8 Richard II), Hilary Recorda, m. 23: 'Stephanus Vale, episcopus Midensis, adtunc capitalis de consilio predicti domini Edwardi regis ad consulendum predictum gubernatorem in Hibemia.' The governor is William of Windsor. The bishop was specially retained of the council on 10 February 1374 with a fee of 100 marks a year (Foedera, III. ii. 998; Cal. Rot. Pat. Hib., p. 86, no. 32). 76 Parliaments and Councils of Mediaeval Ireland, i. 106-10; Cal. Rot. Pat. Hib., pp. 106-7, no. 26; ibid., p. 1 3 1 , no. 3 1 ; Harris Collectanea, iv. fo. 19, from Close Roll, 10 Richard II, no. 8 (meeting at Trim, 18 July 1386).

34

THE

IRISH

PARLIAMENT

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and after his death in 1390, his place appears to have been taken by John Colton, archbishop of Armagh. 7 7 Colton, like Stephen Vale, had had ministerial experience, 78 and it seems to have been usual to appoint to the council spiritual peers who had served as ministers but were no longer in office. Other examples are Thomas Scurlag, abbot of St. Thomas's, Dublin, who had had several periods of office as acting treasurer and treasurer 79 and was a member of the council in 1386, 8 0 and Alexander Balscot, bishop of Meath, who was appointed to the council b y the king on relinquishing the office of chancellor in 1393. 8 1 The three Irish earls, Desmond, Kildare, and Ormond, appear to have been appointed to the council as a matter of course. 82 W e may instance a meeting on 26 January 1 3 9 6 when there were present the earl of March, w h o was then the king's lieutenant, Stephen Lescrope, the justiciar's lieutenant, the chancellor, the earls of Ormond and Kildare, and the two chief justices. 83 It does not follow that all three earls attended with any frequency. Much would depend upon their own inclinations, the circumstances of the time, and their relations with the chief governor and the other earls. The third earl of Desmond (1363-98) took little part in public affairs, though there appears to be no obvious 77

Cal. Rot. Pat. Hib., p. 148, no. 42. Treasurer, 1372-75; chancellor 1380-82; justiciar, 1382. 7 9 Acting treasurer, 1362-64 and 1 3 7 5 ; treasurer, 1375-76. 8 0 See p. 33, n. 76 above, and Cal. Rot. Pat. Hib., p. 1 3 1 , no. 3 1 . 8 1 The king writes to him under the privy seal on 23 July 1 3 9 3 : 'Si voloms par tant et vous mandons empriants que vous soiez de nostre conseil illoeques, entendantz diligeaument entour icel, si corne nous nous fions entièrement en vous, pur quele chose nous vous voulons sçavoir molt especialment bon grée et ordenerons outre ce que pur vos travalx vous serrez ensi regardéz que vous vous ent devez tenir resonablement pur content.' (B.M., Titus B. xi. ii. fo. 1 1 5 ; Lambeth Palace Library MSS., no. 608, fo. 6 1 ) . He had previously been appointed to the council on relinquishing the office of justiciar (above, p. 3 1 , n. 65). 8 2 The earls of March, though also earls of Ulster, participated little in Irish affairs, except for brief periods of office as lieutenants. The county of Cork was granted by Richard II to Edward, earl of Rutland, 'en le viage,' that is, apparently, after the king landed in Ireland in October 1394 (B.M., Hargrave MS. 3 1 3 , fo. 54&). The grant carried with it the titular dignity of earl of Cork, which is added to Rutland's style from January 1395 onwards (Curtis, Richard II in Ireland, pp. 27, 73. 95» 108, 1 1 6 , 124, 147; Statutes, Henry VI, p. 256). It seems, however, to have been little used, even in Ireland. For its use on 5 April 1395, see Archbishop Alen's Register, p. 230. S3 Cal. Patent Rolls, 1401-1405, p. 86. The earl of Kildare in this and the instances that follow is Gerald fitz Maurice, who succeeded his father in 1390. The father, the fourth earl, is described as member of the council on 3 August 1 3 7 8 , when the earl of Ormond was justiciar (P.R.O., E. 1 0 1 / 2 4 6 / 1 3 , no. 1 ). 78

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reason for his abstention except his quarrel with the earl of Ormond.84 But it seems clear that, when the earls of Kildare and Ormond were present, they were likely to dominate the council. To facilitate the king's business privy seal letters were written to them as well as to the lieutenant,85 and we may find a letter from the Irish council to the council in England signed only by the lieutenant and the two earls.86 Another element was introduced into the council from time to time in the person of ministers from England, sent upon special missions to Ireland. We have many notices of these visitors from the reign of John onwards. Thus, in 1208 Philip of Worcester, Roland Bloet, and Master Robert of Chichester came to survey the state of affairs under the administration of Meiler fitz Henry, and were to take part in councils called by him.87 We shall have something to say later of Master Thomas Cantok, who was sent by Edward I to negotiate the raising of taxes in Ireland and remained as chancellor, dying in office as bishop of Emly.88 Many minor English ministers came to Ireland for particular purposes. We have already remarked William de Montague and Lawrence de la Ryvere, who were present at a council called to make provision for troops and ships for the Scottish war.89 Similarly, a few years earlier Nicholas Dubois and Walter of Petherton were to be present when the council discussed the selection of men to serve in the war.90 Any attempt to catalogue such visitors would be wearisome, but we may mention two in especial: John of Hotham in 1315 and Nicholas Dagworth in 1375 and 1377, who, without actually superseding the chief governor, limited his discretion and his executive powers. If we were to seek an analogy, we might find one in the ecclesiastical sphere, in the appointment of legates a latere. Hotham was not only charged 84 Desmond was justiciar in 1367-69 and was present, with the earl of Ormond, at the council that elected John Colton to be justiciar in 1382 (Parliaments and Councils of Mediaeval Ireland, i. 115-20). His quarrel with Ormond came to a head in 1384 (Complete Peerage, iv. 224). The fourth and fifth earls were ineffective. 85 So John Melton, sent to Ireland on the king's business in 1397, desires to be furnished with lettres du prive seal directz a les contes de La Marche, lieutenaunt d'Irelande, conte d'Ormond et Kildare . . .' (P.R.O., C. 49/47/33). 88 B.M., Titus B. xi. i. no. 37: letter of 26 January 1401 from John Stanley and the earls of Ormond and Kildare to the chancellor, treasurer, keeper of the privy seal, and others of the king's council. 87 Roi. Litt. Claus., i. 107. In 1204 a mission had come from England to negotiate an aid, but not apparently with any wider duties (below, pp. 45-46). 88 Below, p. 67. 89 Cal. Justiciary Rolls, 33-35 Edw. I, p. 333. 90 P.R.O., E. 101/235/2, m. 3; Cal. Docts. Ireland, 1302-1307, p. 60.

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with the duty of bringing Irish finances into order and straightening out the confusion caused by the Scottish invasion, but he was empowered to remove unsuitable ministers and to appoint others in their place. These things he was to do in consultation with the justiciar, Edmund Butler, and such other members of the council as he himself should select.91 Dagworth's instructions in 1377 required him to 'surveer l'estat de la dite terre,' and, although he was to act in consultation with the justiciar, chancellor, treasurer, and others of the council, they were to be 'entendantz, eidantz, conseillantz, respondantz et obeissantz' to him.92 His position is described, in the terms of his instructions, as that of 'surveyor of the state of the land of Ireland.' 93 Clearly, during the periods they were in Ireland, Hotham and Dagworth had a preponderant voice in the council. Of the functions of the council enough has already been said to give an indication, and not a great deal need be added. We should note the participation of the council in judicial business under Edward I and Edward II. 94 In its judicial capacity, however, the council was no more than an afforced session of the justiciar's court, which does not seem to have had a regularly constituted judicial establishment of its own until 1324. 95 The description of one action before the council under Edward I will suffice by way of example.90 William de Prene, who had been the king's master carpenter in Ireland, was accused of 91 Cal. Patent Rolls, 1313-1317, p. 347; Pari. Writs, II. ii. 458-59. A report to the king on his proceedings exists: P.R.O., C. 81/93/3594C. Hotham was to have visited Ireland in 13x4 (Cal. Close RoUs, 1313-1318, p. 193; Pari. Writs, II. ii. App. 80-81), but evidently his departure was postponed. 92 Foedera, iv. 21-22. 93 Chartae, Privilegia et Immunitates, p. 75; P.R.O., Ancient Petitions, no. 10579 (17 September 1378); B.M., Additional MS. 4790, fo. 114b, from Justiciary Rolls 5-6 Richard II, m. 33 (2 May 1380). For Dagworth's earlier visit in 1375, see below, p. 84. 9 4 Perhaps also in the later years of Henry III, but the evidence is insufficient. For the practice under Edward I, see Cal Justiciary Rolls, 1295-1303, pp. 2, 122-23, 21 5> 230, 233, 240; ibid., 1303-1305, pp. 9, 20, 28, 49, 77-78 et passim. For a case in 1320, see Hist, and Mun. Docts., pp. 426-35. 9 5 Up to 2 September 1324 only one justice appears to have been attached to the justiciar. Henry of Hanbury was then constituted chief justice, with Roger of Berthorpe as secondary, and these were replaced on 6 January 1325 by Nicholas Fastolf and Walter de Wogan (P.R.O., E. 1 0 1 / 2 3 8 / 1 7 ) . The particulars given by Ellington Ball, Judges in Ireland, i. 37, 39, 64, 66-67, a r e inaccurate since he did not consult the Irish Issue Rolls. For the position of the council as a court of appellate jurisdiction, see below, p. 87, n. 86. 9 6 Sayles, Select Cases in the King's Bench, ii. 125-35.

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theft, malversation, and other wrongdoings before the justices itinerant at Dublin, and was fined £200. The accused took exception to the trial on the grounds that the prosecution had been begun by bill and that he was not tried in the county where the offenses were committed. He therefore complained to the king and obtained a writ directing the justiciar, with Geoffrey of Joinville, Robert Bagod, chief justice of the common bench, and Master Thomas Cantok, the chancellor, and others of the council, to review the proceedings of the itinerant justices. In this case there was a further appeal to the king, a review by the king's bench, and the remission of the matter once more to the Irish council for a fresh trial, but these exceptional features are not important for our present purpose. As many other cases indicate, members of the council came to afforce the justiciar's court when matters of more than ordinary difficulty arose there for decision.97 The reconstitution of the court in 1324 seems to have led to the abandonment of this practice, and later in the century the council appears to be no more than indirectly concerned with the administration of justice—the issue of pardons and the expedition of actions pending in the courts.98 As it evolved, the privy council acquired some of the characteristics of a modern cabinet, particularly in its control of administration and in framing policy. Communications to the king's council in England were sent from the council in Ireland, with whom, it is evident, the chief governor desired to share responsibility, especially since affairs in Ireland were persistently unsatisfactory and sometimes critical.99 At times the council seems to have acted independently of the chief governor,100 who might be an insignificant person with very transitory authority, a mere stopgap pending the arrival of the great lord from England who, it was hoped and expected, would take over the reins 97 See Cal. Justiciary Rolls, 1295-1303, pp. 122-23, 269; ibid., 1305-1307, pp. 9-10, 77-78; Hist, and Mun. Docts., pp. 435. For a similar afforcement of the exchequer, see ibid., p. 506, Cal. Patent Rolls, 1281-1292, p. 378. 98 Graves, Roll of King's Council, nos. 95, 98, 1 1 2 , 181, 208. 99 For examples, see Graves, RoU. of King's Council, pp. 261-69, 314-22; Cal. Close Rolls, 1349-1354, PP- 459-62. 100 xhe articles of 1396, preserved in original in Lambeth MS. no. 619, fo. 207, seem evidently to be of this character: they are calendared in Cal. Carew MSS (Book of Howth), pp. 384-85, from a transcript which unwarrantably inserts in the heading 'par les seignuers et communs de parlement au dit terre.' We refer later to the action of the council in going over the head of Thomas Butler, deputy for Thomas of Lancaster: below, pp. 163-64.

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and responsibilities of government.101 The council was, indeed, apart from the courts and departments of state, the permanent element in the Irish government. Almost a ministerial corporation and possessing— whatever might be its shortcomings and inefficiency—an esprit de corps, it remained while chief governors came and departed, and sometimes came not at all. In describing the evolution of the privy council we have carried the story to the end of the fourteenth century. Otherwise the story might perhaps have been less intelligible. At a later point we shall resume our account of the privy council and describe its composition and activities in the fifteenth century, but we have said enough of the place it occupied in the scheme of government to enable us to approach more intelligently the history of parliament in the later thirteenth and fourteenth centuries. Before, however, we do so, there is yet another preliminary matter it is desirable to discuss, the early history of taxation in Ireland, and to this we now turn. 1 0 1 The demand for a great English lord as chief governor seems to have been first formulated in the latter years of Edward III. It is suggested in 1360 (Parliaments and Councils of Mediaeval Ireland, i. p. 21) and expressed more precisely >n 1373 (below, pp. 82-83). The policy of appointing an English prince or peer was pursued fairly consistently for a century from the appointment of Lionel, earl of Ulster (later duke of Clarence), as lieutenant in 1 3 6 1 . The lieutenants of royal blood appointed by Edward IV, Richard III, and Henry VII were not expected to be resident. For details, see H. Wood in Proc. R. Irish Acad., xxxvi. C., 228-38.

4 TAXATION IN A F E U D A L STATE

HE forms of government in Ireland in the first century after its Conquest can be understood only by reference to the institutions of feudalism as they had developed in England in the twelfth century. This is perhaps a truism, but it is one that has not always been appreciated, and we have been at some pains in the two preceding chapters to show how Ireland was made to fit into the pattern of French feudal society. In the same way our approach to the question of taxation in Norman Ireland must be by showing how the king's right to demand taxes was linked with the duties owed by a feudatory, a vassal, to his lord. In accomplishing what he had set out to do in Ireland—which, put briefly, was to bring the country within the system of the Angevin empire—Henry II had two obvious models, England and Wales, both conquered and settled by the Normans, the former completely, the latter only as far as was, for the time being, profitable. In relation to the native Irish rulers and population the Welsh model was followed; in relation to feudalized Ireland, the English model. The Irish church presented a problem of its own, more difficult than that of the Welsh church, since Wales was, and was destined to remain, within the ecclesiastical province of Canterbury: Henry II, however, represented the party of reform and could count upon the good will of the Curia in measures to control the Irish clergy and to assimilate the institutions and personnel of the Irish church to those of England and Normandy. Though the task of reducing Ireland to Norman order was evidently not intended to be accomplished all at once, the main lines were laid down from the beginning, and from the general plan there was no substantial deviation. It must be borne in mind, however, that the plan was devised for a small, remote, and unprofitable land, which might perhaps, for want of a better, be developed into a suitable inheritance for the portionless John, but which had no very certain future. In any case, the king himself had little leisure in which to put the plan into execution. The ruler of a great part of France could spare a good deal less than half his time for England; for Ireland very little. The value of Ireland to Henry can fairly well be represented in figures. The total

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number of knight's fees ultimately created in Ireland was a little over four hundred, 1 in England nearly seven thousand, though there was a current belief, which perhaps the king shared, that the number of English knight's fees was much larger. 2 When Henry left Wexford on Easter Monday 1172, he seems to have actually assured himself of the services of no more than a hundred and fifty knights from Leinster and Meath, though he contemplated that those who were to rule on his behalf would create further knight's fees on his own demesne,3 and later he himself made speculative grants of the kingdoms of Cork and Limerick, each to be held by the service of sixty knights.4 It is in terms of knight's fees that we should, to begin with, think of our problem, for they imply all the considerations most important in a feudal society. In the present connection the two feudal incidents we must have especially in mind are the military service, due from the tenant in chief, and the aids, which feudal custom required him to pay to his lord. Now in 1 1 7 2 scutage, a money payment which replaced the direct provision of knights, was long established in England, 5 and, while the terms upon which the great Irish franchises were granted suggest that Henry II looked to his principal tenants in chief to provide strong military contingents, we shall find evidence elsewhere that, from the beginning of the Conquest, money payments were also anticipated. It was not everywhere that the service due was reckoned in units of five or ten knights.6 The service of a hundred knights due from the lord of Leinster, of fifty from the lord of Meath and of sixty from the 1

Cal. Docts. Ireland, 1252-1284, p. 550; Eng. Hist. Rev., xviii. 498. The original number at the period of the Conquest was about 5000: this is the servitium debitum. In the course of the twelfth century the number was increased, and in the thirteenth century it was between 6500 and 7000. Probably no contemporary had even an approximate idea of the true number, and the tendency was to exaggerate it grossly. In the early thirteenth century the servitium debitum seems to have been currently put at 32,000 in official circles, though Alexander Swereford knew this number to be absurd (Annates Monastici [Burton], i. 364; Red Book of the Exchequer, i. 4). For modern calculations, see Round, Feudal England, pp. 289-93; Cambridge Mediaeval History, v. 5 1 2 ; Mitchell, Studies in Taxation under John and Henry III, pp. 300-2; Painter, English Feudal Barony, p. 33. 3 As shown by the charter granting Meath to Hugh de Lacy: below, p. 41. 4 For the grant of Cork, see Ware, De Hibemia et Antiquitatibus ejus (1658), pp. 274-75, whence it was printed by Lyttelton, History of Henry II, vi. 406-8. The grant of Limerick is known only from the Gesta Henrici, i. 163, 172: followed by Howden, Chronica, ii. 134-35. It is possible that the service for Meath was temporarily increased to a hundred knights, but it is more probable that the number is wrongly stated by the chronicler (Gesta Henrici, i. 163). 5 Stenton, First Century of English Feudalism, pp. 177-83. 8 J. H. Round, Commune of London, pp. 155-56, overstressed the importance of this unit in Ireland. 2

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lords of Cork and Limerick is not entirely typical. Even Hugh de Lacy's grant of Meath was accompanied by a further grant of all the fees that he had created or would create in the Dublin district (that is, the royal demesne) while he was the king's bailiff,7 and though the number of fees Hugh did create seems to have been ten, three at Castleknock were granted to one tenant and seven in Fingall to others.8 It is, in any case, quite clear that the royal demesne was divided up into small, and sometimes very small, parcels, exactly as the lands of the great feudatories were subdivided. The important distinction is that, while the Crown did not need to look beyond the tenant in chief to the sub-tenants of Leinster or Meath, Cork or Limerick, to perform the service due, and presumably expected to be furnished with the full numbers of knights stated in the grants, where the royal demesne was concerned the Crown must look to the grantee and his successors in title to perform whatever was required. Now what was required in a number of grants was not a whole number of knight's services: there are grants for one and a half,9 or a half,10 or as much as was appropriate to a ploughland,11 which might be one-tenth of a knight's service or even less. While a fraction of a knight's service might sometimes be rendered in the form of the service of some less expensive soldier,12 there were fractional services that could hardly be discharged in any other way than by a money payment. Presumably, therefore, from the earliest years of the Conquest the system under which land was held by military tenure contemplated payment as an alternative to personal service. It is possible that in some cases where whole knight's fees were granted, payment was contemplated from For the charter, see Orpen, Ireland, under the Normans, i. 285-86. E. St. John Brooks in Journal of R. Soc. of Antiquaries of Ireland, lxiii. 206-20; H. Wood in Proc. R. Irish Acad., xl. C., 319. It may be that the knight's fee in Santry, granted to Adam de Feipo (Orpen, op. cit., ii. 85), is additional to the seven in Fingall, but these have not been identified. 9 To Robert of St. Michael from John, lord of Ireland (1177-89) in Facsimiles of National Manuscripts of Ireland, part iii., no. 2. 1 0 To Vivian de Cursun (Chartularies of St. Mary's Abbey, Dublin [Rolls Series], i. 258; to Nicholas Labench, W. Harris, Hibemica, ii. 210-11). 1 1 To Aldred Gulafre (1173-76): 'per liberum seruicium militis quod pertinet une carucate terre Dublinie faciendum' ( C r e d e Mihi, pp. 47-48). 1 2 The service of a foot-serjeant, reckoned at one-eighth of a knight's service, found in the Vale of Dublin, may perhaps be accounted for in this way. The value of the services due from twenty-five knight's fees and six foot-serjeant's fees, at 40s. a knight's fee, would be £.51. 10. o., an amount that seems to be represented by the blundered figure in the copies of the exchequer memoranda printed in Eng. Hist. Rev., xviii. 503, and Cat. Carew MSS. (Book of Howth), p. 231. For an English parallel, see Eng. Hist. Rev., lvii. 444, 453-55. 7

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the beginning. Already in the 1190's the archbishop of Dublin owed the services of four knights, one of which was due from him as tenant in chief and the other three as an under-tenant to three different lords. 13 Payment would solve all difficulties for the archbishop, whether it was made to the king or to the mesne lords. How the latter rendered their service, whether by the provision of knights or by a money payment, was a matter for them to settle with the king's representative. In any case the devolution of the larger fees resulted, within a few generations, in the breaking-up of large round numbers of knight's fees, and this accelerated the tendency to convert service into money. Thus in the course of the thirteenth century the great Leinster inheritance and consequently the service of a hundred knights were split into fractions which might require to be reckoned by ninths.14 Elsewhere the fraction of a knight's service might be as small as a fifteenth.16 It is true that part of the service of a tenant in chief might be discharged by the personal appearance in the field of sub-tenants, as we know to have been sometimes the case, 16 but the balance and, in practice, the larger part was discharged in money. A call, then, on the tenants in chief to render their service was, in effect, the levy of a tax, and the lists of services compiled under Edward I in the Dublin exchequer 17 show that this speedily became, if it was not from the very beginning, the point of view of the Crown. 18 As far as he could, the tenant in chief recovered what he paid from his under-tenants, and in this way royal service became a form of general taxation.19 13

Crede Mihi, pp. 33-34, 37. William of Valence accounted for a third of two-thirds of 100 services in respect of Wexford, calculated therefore, at the rate of forty shillings a knight's fee, at £ 4 4 . 8s. 10X. (Deputy Keeper's Report, Ireland, xxxv. 38; ibid., xxxvi, 26). A similar demand was made on the earl of Gloucester in respect of Kilkenny (ibid., xxxv. 44). 15 Ibid., xxxv. 39 (Uriel: Louth). 16 Ibid., xxxv. 38. 17 Cal. Docts. Ireland, 1252-1284, p. 550; Cal. Carew MSS. (Book of Howth), pp. 230-34; Eng. Hist. Rev., xviii. 501-7. 1 8 As early as 1222 service is demanded solely in money on the ground that the operations are at a distance: 'debita nobis servicia vestra . . . faciatis . . . in denariis' (Patent Rolls, 1216-1225, P- 337)- The pressure exerted by the exchequer to enforce the conversion of obsolete services into a money render is illustrated by Theobald Butler's complaint in 1290 that the treasurer demanded forty shillings (that is, the full rate for a knight's service) in lieu of the service by which he held his land in Bray, namely, of providing an armored horse at the gate of Dublin Castle when royal service was summoned (Cole, Documents, p. 82). This service does not appear in the exchequer memoranda. 1 9 Below, p. 233. 14

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This is, however, to look a long way ahead, and we must return to the other feudal incident we have mentioned, the aid due from a tenant to his lord. Magna Carta has made us familiar with the three forms of aid which were typical of those due from a knight: for the knighting of his lord's eldest son, the marriage of his eldest daughter, and the ransoming of his person. But the king's right to ask for an aid was not limited to these occasions,20 and, in any case, the restrictions placed upon the king in the charter of 1215 disappeared from the reissue of the charter on 12 November 1216, which was the form in which it was sent to Ireland when Henry III extended to that country the liberties granted to England.21 Nevertheless, the right to ask for an aid was a qualified right: it must be exercised reasonably, which, in the result, meant that the consent of the tenants must be obtained.22 Coupled with the aid in the thought of the age is tallage, and this the king, like any other lord, had the right to levy on his demesne. Since chartered towns were regarded as part of the demesne, they were subject to tallage, though they might also be asked to contribute towards an aid: the latter, in fact, might be an alternative to the former. This obligation to pay tallage, or aid, was introduced into Ireland with Anglo-Norman municipal institutions and, though not specified in any charter, it is implicit in the relation created between the burgesses and the Crown. That the obligation was recognized and unquestioned is shown by an agreement between Archbishop Henry and the citizens of Dublin in 1225: the men of the archbishop and his clerks are to contribute their share when any tallage or aid is levied by special order of the king.23 One tax in England was not feudal in origin, the danegeld or carucage, which was assessed upon the hide or ploughland (carucata). It went back, of course, to the English kings before the Conquest, but was continued long after Danish invasions had passed away. It seems to have been transformed by the Norman kings into a war-tax, which was levied for the last time by Henry II in 1162. The basis of the levy was adopted, however, for taxes which were truly feudal, as, for example, the aid levied for the ransom of Richard I in 1193-94, and that in 1200 to provide the relief which John promised Philip Augustus for his French dominions.24 The carucage requires to be noticed here be20

As is evidenced by the aids requested under Henry III: below, pp. 51-54. Patent Rolls, 1216-1225, p- 31; Irish Hist. Studies, iii. 31-33. 22 The law is stated in Glanville, lib. ix, c. 8. 23 Crede Mihi, p. 65 (no. 7 1 ) ; Hist, and Mun. Docls., p. 8of. 24 Mitchell, op. cit., pp. 32-34. 21

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cause the ploughland was commonly adopted for the assessment of subsidies in Ireland throughout the Middle Ages and beyond. The only evidence for its adoption under John and Henry III is, as we shall see, inferential, but its emergence later would seem to be inexplicable unless it had been known in Ireland in the thirteenth century, for the basis of subsidies in England, even under Henry III, was rarely the ploughland 25 and later English subsidies were certainly on a different basis. In a feudal society the clergy had a dual obligation. The land they held might be subject either to the obligation to perform divine service and to intercede for the spiritual welfare of the patrons of their churches or to the secular services that were incumbent upon laymen. A bishop might be both a prelate and a baron, but, more than this, he might be an under-tenant of a lay baron. We have seen this illustrated in the case of the archbishop of Dublin. His temporal obligations would be discharged as a layman discharged them: but did he owe any aid, beyond his spiritual duties, in respect of his other possessions and revenues? This was obviously an important question in Ireland where prelates held very little land by military tenure. In any case, the land held by the inferior clergy was, as in England, entirely in free alms, except, of course, in so far as they might be private landowners. Moreover, much of their income came from tithes and part of it from dues and offerings, and, as the process of appropriating parish churches proceeded in Ireland, religious houses and chapters also derived a substantial revenue from these sources. In Western Europe generally, bishops had from time to time taken aids from their clergy, for this was the pattern of the feudal world in which they lived. Soon after John had been made lord of Ireland, the third Lateran council had in 1 1 7 9 enacted a canon, requiring a bishop to obtain the consent of his subjects before exacting aids or tallages. 26 But if the bishop might ask the clergy for an aid, why should not the king do so? And, in fact, when in 1 1 9 3 and 1194 it was necessary to raise a large sum of money for the ransom of Richard I, the English lower clergy were required to contribute, first a tenth, and then a 2 5 In 1217, 1220, and 1224; in this last year only on the clergy (Mitchell, op. cit., pp. 121-24, 129-36, 150-59)2 6 The canon was incorporated in the Gregorian Decretals (X. 3.39.6). On the subject generally, see Lunt, 'The Consent of the English Lower Clergy to Taxation' in Facts and Factors in Economic History, Articles by former students of Edwin Francis Gay, pp. 62-89, and Papal Revenues in the Middle Ages, i. pp. 77-81.

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twentieth, of their revenues.27 The occasion was entirely exceptional, and when again they were asked to contribute to John's necessities in 1207, it was hardly an exaggeration to say, as was said in reply, 'the English church can in no wise support what has been unheard of since the beginning of time.'28 They may have, however, again been forced to contribute: certainly the higher clergy and religious houses contributed.29 At all events the idea that the clergy of all classes might be called upon to contribute with the laity was becoming an accepted political conception. Having now sketched in the background, let us proceed to details. We may pass over the years from 1 1 7 2 to 1177, when Henry II was direct ruler of Ireland: this was a period of preparation and organization. When John became lord of Ireland, it was obviously in the expectation that he would enjoy all the rights of a feudal lord, and such records of his administration as survive show him acting in exactly the fashion we should suppose a feudal lord would do. Whether he had tallaged his demesne before he became king, there is nothing to tell us. It is unlikely that twenty-two years passed over without a demand for scutage or 'royal service,' as it became known in Ireland. But we cannot think of any occasion which would have justified the demand for an aid, and when, in February 1204, he asked for one, the language he used suggests that this was the first time that he had sought to impose a general tax upon the country. He stressed the unprecedented nature of the catastrophe that had befallen him, and held up as an example to Ireland the generosity of the people of England who had granted ample aid in men and money. John's justification in appealing to Ireland was that he had been expelled from Normandy and was raising forces with the intention of resuming hostilities against Philip Augustus. It may perhaps be well to remark that there was no suggestion that a tenant of Irish land had an obligation to perform military service outside Ireland: unlike English military tenants, their Irish fellows seem never to have been required as a matter of feudal custom to follow the king overseas. No class in Ireland then had a greater duty than any other to come to the king's assistance. Separate letters were sent to the clergy and laity, but there is no difference in the terms in which they are addressed. 27

Lunt, 'Consent of the English Lower Clergy,' pp. 74-75. 'Anglicanam ecclesiam nullo modo sustinere posse quod ab omnibus saeculis prius fuit inauditum' (Annates Monastici [Waverley], ii. 258). 29 Pipe Roll, 9 John (Pipe Roll Soc.), Introduction, pp. xvii-xxi. 28

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Neither is there any suggestion that the barons and knights were under a greater duty to grant an aid than the citizens, merchants, burgesses and freeholders with whom they are grouped. Nor does the king ask as a matter of right: if an aid is granted it will be 'non consuetudinarie sed amicabiliter.'30 To the clergy and laity of the diocese of Armagh, the temporalities of which are in his hands, 31 the king is even more explicit: the aid he requests is a matter of pure liberality on their part, and he pledges himself that any grant will not constitute a precedent or give rise to an evil custom.32 What form the aid took in Ireland is unknown. In England both a scutage and a seventh on personal property seem to have been exacted from tenants in chief, and there was apparently much compounding for the two taxes; the towns also were tallaged. 33 To Ireland the king sent Walter de Lacy, Henry of London, archdeacon of Stafford, Geoffrey Luterel and William le Petit to act with the justiciar, Meiler fitz Henry, in negotiating the aid. 34 They do not seem to have called an assembly representative of the whole country but to have conducted their negotiations on a local basis, dividing their forces for the purpose. Hence special letters of thanks are sent to the barons of Leinster and to the citizens of Dublin. These letters, and others addressed more generally, which were dispatched from England in September, indicate that the king's request met with a sufficiently satisfactory response from the laity, 35 though it is unlikely that anything was obtained from, at any rate, the lower clergy, whatever measure of compliance there may have been from the bishops and religious houses. It may well have been without guile that assurances were given that the grant would not be drawn into a precedent: but John could not foresee the future. The military preparations of 1204 and the years 30

Rot. Chartarum, pp. 133-34. The address includes earls, but there were as yet no Irish earls and the earl Marshal was not at this date in Ireland. 3 1 Archbishop Eugenius was still in treaty for the restoration of his 'lands and franchises' in August 1206 (Rot. Litt. Pat., p. 72b). 32 Rot. Chartarum, p. 133. 3 3 Mitchell, op. cit., pp. 62-69; P'pe Roll, 6 John (Pipe Roll Soc.), pp. xl-xlii. 34 Rot. Chartarum, p. 133: see also Rot. de Liberate, p. 83, for further light on their mission. All four men, it may be noted, had careers of some importance in Ireland. Walter de Lacy was lord of Meath. Henry of London became archbishop of Dublin and served as justiciar. William le Petit, who accounts as steward of Meath on the Irish Pipe Roll (p. 20), is shown also to have acted as justiciar in 1 2 1 1 (ibid., p. 66). The least prominent of them, Geoffrey Luterel, accounts as sheriff of Dublin (ibid., p. 7). 35 Rot. Litt. Pat., p. 65b. It would seem that, in William Marshal's absence, the aid was negotiated direct with the barons of Leinster.

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following were abortive, and in 1207 Normandy was still unrecovered. Again the defense of the realm and the recovery of the lost province were the justification for an extraordinary levy. A tax of twelve pence in the mark was granted at a council that met at Oxford in February. 36 Until the publication of the Irish pipe roll of 1212 it was not known that this tax was extended to Ireland, but the references to the thirteenth in that roll put the question beyond dispute. In Ireland, as in England, the tax was assessed by itinerant justices, before whom earls and barons were represented by their stewards. This is established by the entry of a fine of £100 on Adam de la Roche 'pro excessu senescalli sui coram iusticiariis itinerantibus ad xiiimam.'37 Since the rate of the tax and method of assessment were clearly identical in the two countries, we seem entitled to infer, despite the absence from the English chancery rolls of any letters addressed to Ireland on the subject, that the decision to impose the levy upon both countries was taken on the same occasion. It is, however, most improbable that the extension of the tax to Ireland was effected without the formal consent of representative Irish barons, but not necessarily at a meeting in Ireland, and, as w e have already said, it would seem certain that both William Marshal and William of Briouze, as well as lesser Irish barons, were present at the Oxford council. 38 The references to the thirteenth on the Irish pipe roll of 1212 are only incidental, and we may assume that in Ireland, as in England, the receipts were not passed through the exchequer like ordinary revenue. As in England, too, the collection probably dragged on for a long time,39 and the reference on the roll to the carriage of the receipts of the thirteenth from Limerick to Dublin 40 is quite compatible with the inference that the assessment began in 1207. The tax was one of extraordinary severity, the reason being that it was levied on personal property and assessed by specially appointed justices. In England it realized what, for that age, was the vast sum of £.60,000 and more: this included, however, the fines paid by religious houses and the dona of the bishops. 41 Whether the clergy in Ireland were made to contribute the pipe roll does not in3 8 For details of the levy on the laity, see the writ of 17 February in Rot. Lift. Pat., pp. 72-73, and for the scheme as a whole and its results, see Mitchell, op. cit., pp. 84-92. 37 Irish Pipe Roll, p. 18. 3 8 Above, pp. 1 1 - 1 2 . 3 9 In 1 2 1 2 money was still due from a Hertfordshire collector (Rot. Litt. Clam., i. 1 1 7 ) . 40 Irish Pipe Roll, p. 70. 41 Rot. de Oblatis, p. 459.

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dicate, and we have no means of estimating the total contribution from the country, though it is likely to have been considerable. Heavy taxation could not be repeated year after year, and the next occasion on which England was heavily taxed was in 1 2 1 0 to meet the expense of John's expedition to Ireland. 42 References on the Irish pipe roll lead to the conclusion that in this year Ireland also was required to contribute an aid. This is the 'first aid,' for which William Marshal owes at Michaelmas 1 2 1 2 the sum of £.260. 6s. 8d.43 The date of the aid is to be inferred from the fact that the Marshal claims allowance in respect of Dunamase and other lands which were in the king's hand. The probability is, clearly, that the gross amount of the contribution had been settled before the lands had been seized. But we know that Dunamase castle, with, of course, the manor attached to it, was surrendered by the Marshal in the latter part of August 1210. 4 4 Another entry on the roll that appears to relate to the same aid is the debt of ten marks 'de auxilio Midie.' 45 This falls under the heading 'Fines facte cum domino rege,' and it is evident that the debt has been brought forward from Michaelmas 1210. Seemingly it is a small outstanding balance of a contribution arranged directly with the king, and therefore between 20 June, when John landed in Ireland, and 26 August, when he recrossed the sea. The conclusion seems inescapable that the first aid was arranged between these dates, probably early rather than late in the period. The 'first' aid, moreover, implies a 'second' aid, and to the latter we also find references on the pipe roll. For the 'second aid' William Marshal owes five hundred marks,46 while the sheriff of Munster accounts for twenty shillings from the archbishop of Cashel, forty shillings from the bishop of Killaloe, E8.1s.3d. from the tenants of William de Burgh, ten marks from the citizens of Limerick, 47 and £.31.12s. from the bailiwick (baillium) of William of Briouze. 48 Since references on the pipe rolls to extraordinary taxes are fortuitous, it is fortunate that these are so informative. The sum owing by the Marshal is his whole contribution, but the other sums are clearly balances carried forward from the pipe roll of 1 2 1 1 . The Mitchell, op. cit., pp. 96-106. Irish Pipe Roll, p. 16. 44 Histoire de Guillaume le Maréchal, 1. 14330. 45 Irish Pipe Roll, p. 26. 46 Ibid,., p. 16: 'de toto secundo auxilio.' 47 Ibid., p. 70. 48 Ibid., p. 72. The "bailiwick' doubtless means the honor of Limerick, which had been granted to William in 1201 and was now forfeited. 42

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second aid must therefore have been put in charge not later than the twelve months ended Michaelmas 1211. It is unlikely that the two aids were levied in the same year, and we may therefore presume that the collection of the second aid began in 1211. A further deduction, and one of importance, we may make with confidence: contributions were obtained not only from military tenants and from the royal demesne, of which chartered towns such as Limerick formed a part, but also from the higher clergy. For neither the archbishop of Cashel nor the bishop of Killaloe held military fiefs, though their temporalities were regarded as fiefs held of the Crown. It is hardly necessary to explain that the position of the tenants of William de Burgh is exceptional: mesne tenants as such would not be directly liable to contribute to the aid, but since William's heir is a minor, his lands are in the king's hand,49 and the king obtains contributions from the tenants just as their lord would have done. In the same way we must suppose that, since the king has dispossessed William of Briouze and Walter de Lacy, their tenants would make their contributions direct to the exchequer, and this will explain why the sheriff of Munster is accountable for the aid from the lands William held in Limerick, and why the steward of Meath has paid into the treasury ten marks for the first aid from Meath. There is no possibility of discovering the amount of the two aids. It seems evident, however, that, in the case of land held by military tenure, the second aid was assessed at four marks on the knight's fee and that for this purpose the number of knight's fees was not the servitium debitum, as we may, on the English analogy, term it, but the number of fees actually created. We get this information from the entries relating to Leinster.50 From William Marshal's debt in respect of the second aid he receives an allowance of £40 for the service of fifteen knights of Meiler fitz Henry, 'scilicet, de quolibet servitio iiij. marcas.' The only possible interpretation to be put upon this entry seems to be that the allowance is in respect of the lands which had been in dispute between the Marshal and Meiler and were now in the king's hand.51 In any case, it is plain that the allowance is at the rate of four marks to the knight's fee. Since the gross charge against the Marshal is 500 marks, he is reckoned to hold 125 knight's fees in Leinster, whereas the servitium debitum was one hundred. The ex49 30 31

Orpen, Ireland under the Normans, ii. 194. Irish Pipe Roll, p. 16. Irish Hist. Studies, iii. 153-54.

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planation must be that the Marshal, or his predecessor, Strongbow, had created by subinfeudation more knight's fees than the number of knights he was required to furnish under his grant from the king and that the aid was assessed upon the former basis and not on the latter. There is an exact parallel in 1217 when a tax was levied by the Marshal himself, as rector regis et regni, upon every scutum in England.52 When we turn to the entries relating to the first aid in the Leinster account, we find that the allowances in respect of the disputed lands then in the king's hand amount in all to £45. This may suggest that the rate was £.3 a knight's fee; but each allowance is related to a particular cantred or tenement, and only one is a multiple of £ 3 . The assessment therefore must have been on some other basis than knight's fees, and a rate of half a mark to a ploughland suggests itself.53 Whatever the rate, it seems to have resulted in a heavier charge than the assessment to the second aid. The other entries on the pipe roll of 1212 do not help us to form any idea of the assessment of towns or of the higher clergy, although English precedents suggest that conbutions from these sources would be a matter of individual bargaining. John's justification for demanding these two aids need not be wholly a matter of speculation. We know that he came to Ireland to put an end to the menace of William of Briouze and to punish those who had sheltered him. The king's manifesto against William puts forward arguments of a kind which, tendentious though they may be, would be ground enough for asking for an aid, and his presence in Ireland with a considerable army would make it difficult to refuse a request which might have been answered less generously if presented by letter or by messengers. Still, the important point is not that John found arguments but that he succeeded in imposing upon Ireland a system of extraordinary taxation exactly as he succeeded in England, though in that country, to be sure, there was a number of more or less cogent precedents. 52

Rot. Litt. Clatis., i. 3 7 1 : Mitchell, op. cit., pp. 125-38. The allowances are Jo 17. 6s. 8d. for the cantred of Leix; the same amount for the cantred of Oldconnell and for Carbury; Jo 4. 6s. 8d. for the part of the cantred of Aghaboe that Meiler fitz Henry held; and ¿ 6 for the land in which Dunamase Castle stands: that is, a total of £. 1 5 . At half a mark a ploughland, this represents 1 3 5 ploughlands. If we may assume that Dunamase was reckoned among the lands in dispute between the Marshal and Meiler fitz Henry, then, since there were fifteen knight's fees in the disputed lands, we obtain a ratio of nine ploughlands to a knight's fee. This ratio is a reasonable one. We may assume a maximum of ten ploughlands in any knight's fee: some contained less, and some ploughlands might be held in socage. 53

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The occasions on which aid was demanded were the same in the two countries, though the method of assessment might differ. There is no need to repeat what has already been said of the aids of 1204 and 1207. In 1210 not only a scutage but a heavy tallage also was levied in England for the Irish war.54 Thereafter John levied only one more aid in England, and that was in 1214 'ad interdicti relaxationem.' He attempted to persuade the laity generally to contribute, apart from the towns and the demesne, but what response the general appeal obtained is not known: the towns and demesne had no option but to contribute.55 Whether a demand was sent to Ireland, whether Irish towns and manors were included in the 'omnibus burgis et dominicis domini regis' to which letters were issued, must remain uncertain: but there is greater probability that this was done than that Ireland escaped on this occasion. While thus the first beginnings of national taxation in Ireland were but the application of methods practiced in England—or perhaps we should say that both countries were brought within the ambit of a single system—there developed in Ireland a parallel system of levying subsidies for local purposes which is not to be found in England. These local 'aids' were already being raised under John. In February 1207 the king is asking the barons of Leinster and Meath for an aid for the purpose of fortifying Dublin, 56 and on the Pipe Roll of 1212 the sheriff of Waterford is charged with £. 144. 5s. 8d. for the aid for fortifying the city, a debt for which, it is said, the citizens should answer.57 Though evidence is wanting, there is no need to suppose that such demands under John were limited to these occasions or that other parts of Ireland did not know them. The practice of raising royal taxes for local purposes became a permanent feature of medieval Irish finance and continued side by side with a system of general taxation. When Henry III came to the throne there was, therefore, a wellestablished basis of taxation in Ireland. The infant king's guardians, the chief of whom was William Marshal, had need immediately to impose a tax, for they were in desperate straits for money to discharge the in54

Mitchell, op. cit., pp. 96-101. Rot. Litt. Pat., p. 111b; Mitchell, op. cit., pp. 116-18. Rot. Litt. Pat., p. 69. The barons were presumably approached direct because William Marshal, lord of Leinster, was in England (above, p. 47), and Walter de Lacy, lord of Meath, had been in arms against the justiciar and was about to stand trial in England (Rot. Litt. Pat., pp. 69, 70b). 57 Irish Pipe RoU, p. 48. 55

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demnity due to Louis of France. A tallage was levied on the towns and royal demesnes, the barons and knights holding in chief were asked for an aid, and the same request was addressed to the Irish kings, with what success does not appear. A letter of 10 November 1217, addressed to the barons and knights, requesting the general body—universitas vestra—to make a grant would seem to imply a meeting early in 1218. 5 8 Apart for an aid levied on the royal demesnes in 1220, 59 there is no information regarding a further aid in Ireland until 1226. In that year the king obtained the consent of the pope to demand a subsidy from the Irish clergy. 60 This introduces us to another aspect of medieval taxation, which is of importance, if only indirectly, in the history of parliament. The privilege of the clergy, who claimed that their benefices were exempt from lay taxation, was undermined by the pope himself, who authorized or exacted taxes, not only for the benefit of the Curia, but also, by arrangement, for the benefit of the Crown. Ultimately the clergy found that a theoretical immunity was worthless and bowed to the necessity of assenting to taxation in convocation or parliament. In 1226 this development was a long way off, and, even under papal pressure, the Irish clergy were reluctant to contribute. In form the aid the king demanded was voluntary and he gave an assurance that it would not be drawn into a precedent. Consent, however, was taken for granted, and the tax was assessed at one-fifteenth on the higher clergy and one-sixteenth on the lower. Despite references to 'liberal promises,' it is doubtful whether even formal grants were made at any ecclesiastical assemblies. Little appears to have been collected from any section of the clergy by the middle of 1229: it seems certain that by the end of that year nothing had been received from Irish religious houses. In the king's necessity an appeal for an aid was made to the king of Thomond, and the royal demesnes were again tallaged. 61 The English clergy had been subjected to the same procedure as the Irish, but in England the ecclesiastical subsidy was regarded as the counterpart of an aid of a fifteenth, granted at an afforced council in return for the confirmation of the charters.62 There is no evidence of a similar bargain in Ireland, but since we find a 58

Rot. Lift. Claus., i. 375; Patent Rolls, 1216-1225, P- 125. Ibid., p. 253-54. Cal. Papal Registers, Letters, 1198-1304, p. 105. 61 Patent Rolls, 1225-1232, pp. 100-104, 138-39, 187, 254-55; Close Rolls, 1227-1231, p. 383. 6 2 Mitchell, op. cit., pp. 160-71. The bargain is set out in express terms in the confirmation of the great charter. 59

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thirteenth from the laity coupled with a clerical aid, arrears from both of which were still due in 1232, it seems probable that the Irish baronage had been induced to grant an aid.83 The next demand of which we have knowledge was in 1237 when a meeting, to which the higher clergy were apparently also summoned, must have been held to consider the king's request for an aid on the occasion of the marriage of his sister to the Emperor. The result was a grant, at the rate of forty shillings on each knight's fee,64 from the laity, including inferior tenants not holding in chief of the king.65 In 1245 the justiciar was directed to negotiate with the magnates, individually and collectively, for supplies and men required for an expedition against David ap Llywelyn, prince of North Wales.66 It would seem to be in connection with this expedition that an 'aid for the war in Wales' was obtained from the towns.67 At Mid-Lent 1254 a meeting was summoned to hear the king's request for aid in men and money to meet the threatened invasion of Gascony by the king of Castile. On this occasion Henry III sent to Ireland a special representative, Nicholas of St. Neots, a Hospitaller, and he and the justiciar were to explain the reasons for the king's request. The assembly seems to have included not only the higher clergy and lay magnates but also representatives of towns, shires and franchises.68 Later in the same year the king requested aids for knighting his eldest son and marrying his eldest daughter, a demand apparently not limited to tenants in chief: a letter addressed 63 The fragment of the Irish Pipe Roll of 1 6 Henry III, printed in the Reports of the Record Commissioners of Ireland, i. 3 3 3 - 3 5 , is our sole source of information. The thirteenth is apparently contrasted with the 'first aid' of Henry III, presumably that requested in 1 2 1 7 , arrears from which are also owing. 64 The rate is disclosed by the surviving extracts from the lost pipe roll of 3 9 Henry III (Cal. Carew MSS. [Book of Howth], p. 432; Analecta Hibernica, ii. 264). This is the normal rate for 'royal service.' In England the rate on this occasion was two marks to the knight's fee (Mitchell, op. cit., pp. 2 0 8 - 1 1 ) . 65 Close Rolls, 1234-1237, pp. 5 0 9 - 1 1 , 5 7 1 - 7 5 . The terms of the indemnity to the last-named class are important, indicating that the grant was not made direct to the king but through the superior lords: 'Volumus autem et concedimus quod illi qui tenent de aliis in capite quam de nobis et qui nobis auxilium concesserunt ad presens, si forsitan a dominis suis, de quibus tenent in capite, alias auxilium petatur ab eis ad opus nostrum, a prestacione illius auxilii in perpetuum sint quieti.' P.R.O., Patent Roll, no. 48 { 2 2 Hen. I l l ) n. 7: the abstract in Cal. Patent Rolls, 12321247, p. 2 1 5 , is inadequate). 66 Close Rolls, 1242-1247, pp. 348-49. 67 Cal. Carew MSS. (Book of Howth), p. 432: from the pipe roll of 39 Henry III. 68 For the several writs, in order of date, see Foedera I. i. 295; Close Rolls, 1253-1234, p. 109; Lynch, Legal Institutions, pp. 302-3 (corresponding to Cal. Patent RoUs, 1247-1258, pp. 363-64).

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to archbishops, bishops, abbots, priors, earls, barons, knights, and all freeholders seems to imply a meeting of higher clergy, magnates, and representative lesser men at which it would be read and expounded.89 Aids were granted both for 'the war in France' 70 and for marrying the king's eldest daughter, and it is to be remarked that the towns contributed substantially to both aids. 71 These were the last aids that Henry III seems to have taken from Ireland. During the course of the year 1254 he transferred the lordship of the land to his first-born, Edward. 72 Since, however, he reserved to himself the rights of the Crown in relation to the Irish church, he was still able to tax the clergy by means of grants from the pope. He thus obtained a tenth in 1254, which by the end of 1258 had yielded a little over 3000 marks.73 In 1266 Clement IV granted Henry III a tenth for three years from Ireland as well as from England and Wales, and this was put in collection in 1267. 74 Whether there were any negotiations with the Irish clergy does not appear. These papal taxes, however, interest us but indirectly. So far as the Irish laity were concerned, any fresh taxation was negotiated with their new lord, Edward, and we know nothing for certain of any aids demanded by him in the period from 1254 to 1272, 75 when he became king and our sources of information are again abundant. This then is the obvious point at which to pause and to look back at the facts we have set out. In each of the instances we have cited (with the exception of papal taxes), feudal custom either would certainly require an aid to be given 09 Lynch, Legal Institutions, p. 302 (corresponding to Cal. Patent Rolls, 12471258, p. 3 1 6 ) : the opening words are 'Bene constat universitati vestre,' and the letter continues 'universitam vestram affectuose rogamus, monemus et exortamur.' In a previous letter (Close Rolls, 1253-1254, p. 258), where the justiciar is instructed to levy an aid, nothing is said of negotiation. 70 Otherwise 'in Poitou' or 'in Gascony,' but all three expressions seem to be equivalent. 71 Cal. Carew MSS. (Book of Howth), pp. 431-32; Analecta Hibernica, ii. 254-55: from the pipe roll of 39 Henry III. 72 Below, pp. 57-58. 73 Cal. Patent Rolls, 1247-1258, p. 372; Close Rolls, 1253-1254, pp. 92-93, 145-46; ibid., 1254-1256, pp. 8-9, 54, 392-94; ibid., 1256-1259, pp. 465-66; Archbishop Alen's Register, pp. 87-88. 74 Theiner, Vetera Monumenta Hibemorum, pp. 98-99; Cal. Patent Rolls, 12661272, pp. 91-92, 234-35, 409, 458-59; Crede Mihi, pp. 108-9. A tenth granted in 1265 seems to have lapsed. 75 It is unlikely that Edward departed for his crusade without demanding an aid, and it would seem probable that the 'new aid,' for which the escheator accounts in the pipe roll of 1 Edward I, had been demanded before Edward's accession ( D e p u t y Keeper's Report, Ireland, xxxvi. 2 3 ) .

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to the king or might plausibly be urged in support of a request for aid, and though the king was constantly tending to look beyond the narrow circle of tenants in chief, the basis of his request on each occasion was essentially feudal. The relationship implied is the bond between lord and the men who hold their lands of him, and the aid demanded and given is personal to the king. It is exceptional for any mention to be made of taxation for the local needs of Ireland, apart from royal service which was frequently exacted,76 and we may presume that the magnates were rarely called upon to consider any proposal of the land. When, however, very early in Henry Ill's reign, it was proposed to apply the 'service' of the land of Walter de Lacy (that is, of Meath) for the purpose of fortifying Delvin castle to the behoof of Richard de Tuit, the justiciar felt that he could not proceed without special authority from the king "because there are no magnates in Ireland who would willingly give us counsel and aid to fortify that castle.*77 In 1250 we hear of a levy, which was in no sense feudal, that the barons and magnates had assessed among the several districts concerned: this was a reward of £.300 promised by the commonalty of Ireland for the head of Carbry O'Melaghlin. The phrases employed leave us to infer that the 'communitas Hibemie' was represented by the "bamagium et magnates Hibemie.'78 What seems clear is that at a representative assembly of barons, with perhaps some others, a tax was granted and assessed, not at the demand of the king to meet his personal needs, but at the instance of the Irish government and Irish lords to serve local purposes. Equally significant is an incident soon after Edward had obtained seisin of the lordship of Ireland in 1254.79 Acting upon instructions which came nominally from Edward,80 his representative, Richard of la Rochelle, had levied a tax of ten marks on every cantred for the expenses of the war in 76 Details from the pipe rolls of 22, 39, 45, and 46 Henry III, will be found in B.M., Additional MS. 4790, fo. i6gfc; Analecta Hibernica, ii. 262-65; Cal. Carew MSS. (Book of Howth), pp. 431-32; and Deputy Keeper's Report, Ireland, xxxv. 38-39, 42-45. 77 Letters of Henry III, i. 3 1 , elucidated by Patent Rolls, 1216-1225, PP- 25-26. For the resultant authority, see Rot. Litt. Claus., i. 4306. 78 In one letter from the king to the justiciar, the words are 'distringat quamlibet patriam pro porcione sua ipsam contingente ad prefatam pecumam . . . reddendam, sicut per barnagium et magnates Hibemie provisum fuit' (Close Rolls, 1247-1251, pp. 391-92) and in another letter, 'distringat ad porcionem ipsos contingentem, reddendam de pecunia promissa per communitatem Hibernie' (ibid., 1251-1253, P- 492). 79 See below, p. 57. 80 Role Gascon, 1254-1255, no. 19; Cal. Docts. Ireland, 1252-1284, p. 65.

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Ulster. This was resisted in Leinster, as the tax of 1250 had previously been resisted, but now the ground of objection had changed: it was no longer that the privilege of the franchise exempted the landowners, 81 but that the absentee lords of Leinster (the coheirs in the Marshal inheritance) had not agreed to contribute nor had their stewards on their behalf. 82 The implication of this protest is significant. Had the stewards been summoned with the baronage when assent was given to the levy, no exception presumably could have been taken, and, as we shall see, at parliaments later in the century absentee lords were, in fact, represented by their stewards. These instances of taxation for local needs have another interest: as obvious exceptions to strictly feudal taxes that custom sanctioned, they helped to prepare the way for the conceptions underlying parliamentary taxation. After the reign of Henry III, indeed, we hear no more of feudal aids, though the essentially feudal levy of scutage continued for two centuries. 81 82

Close Rolls, 1251-1253, p. 492. Ibid., 1254-1256, p. 159.

5 T H E B E G I N N I N G S OF P A R L I A M E N T

HE first mention of parliament in Ireland comes from one of the obscurest periods of Anglo-Irish history, when the lordship of Ireland was held by Edward, Henry Ill's eldest son. Little of the correspondence that passed between him and the justiciar and other ministers has survived,1 and the few local records give scant information about central administration. Edward was invested with the lordship of Ireland in the course of the year 1254. The transaction was not a single, carefully devised act of statecraft, but developed, it would seem, almost accidentally, from the difficulty experienced in finding means to insure to the prince an income of 15,000 marks a year. The first grant was made in February and included Chester, Wales, Bristol, the Channel Islands and a whole list of minor places as well as Ireland. At this stage the king excepted Dublin and Limerick, with their shires, and the town of Athlone,2 but these reserved possessions were granted to Edward in August.3 The king continued, however, throughout his reign to reserve his rights over the Irish church, which included, as we have seen, the taxation of ecclesiastical benefices.4 Edward's lordship was, therefore, limited and it was always subject to the king's superior lordship. So qualified was his authority that the king's justiciar, John fitz Geoffrey, was maintained in office and Edward's own representative, Richard of la Rochelle, was known as his steward, the title given to the chief officer of other Irish lords. A conflict of jurisdiction was avoided by constituting Richard the justiciar's lieutenant.5 Edward's position remained ambiguous until 16 May 1256, when the

T

1 Only four rolls of Edward's correspondence for the period 1254-72 appear to have survived, patent rolls for 38, 39, and 44 Henry III, and a close roll for 39 Henry III. They are now classified as nos. 1-4 in the series of Gascon Rolls in the P.R.O. They are described by Charles Bemont in Bulletin Philologique et historique ( 1 9 1 5)> pp- 92-94: an earlier description under a different classification will be found in Cal. Docts. Ireland, 1252-1284, p. xviii. Apart from these rolls, transcripts of isolated instruments may be found scattered here and there. An example will be found in Appendix IV. 2 Foedera, I. i. 297. 3 Cal. Patent Rolls, 1247-1258, pp. 317, 319. 4 Above, p. 54. 5 For these facts, see the instruments for 1254-56 in Cal. Docts. Ireland, 12521284, pp. 61-81.

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king withdrew his own seals that were used for Irish administration and gave instructions that in future Edward's seal should run in Ireland.® At the same time Edward appointed his own justiciar, Alan la Zouche.7 We have, of course, to remember that, when the first grant was made to Edward, he was still a child and that he was not quite seventeen years of age when administrative authority was formally accorded him. On that score alone there could be no question of his ruling Ireland independently, as John had ruled when Richard was king. Inevitably, therefore, the course of events in Ireland followed those in England. The king's embroilment with his English barons reached a climax at the parliament of Oxford in the middle of 1258. Among the few lasting results of that meeting was, as has already been stated, the institution of regular parliaments in England, and it is reasonable to suppose that a similar system was introduced about the same time into Ireland. This supposition rests upon two considerations: the king's declared intention, proclaimed in Ireland as in England, to ratify the decisions of the council set up at Oxford, 8 and the indubitable fact that, within a few years, we get a record, fragmentary though it may be, of an Irish parliament, called by that name. The only information we have of this earliest known Irish parliament, held at Castledermot in mid-June 1264, is that an inquisition was taken on this occasion, before the justiciar and council,9 into the claim of the archbishop of Dublin to exercise certain regalian rights. Since the interests of the lord Edward were in question, the inquisition was a specially solemn affair and was made by twenty-six knights: whether these knights had been summoned to parliament for other purposes is uncertain, but there is no suggestion that they were elected representatives of the commons.10 This parliament was followed by a period of disturbance in Ireland to which we must make some reference, since its ending, if not its beginning, has a good deal of significance for us. On St. Nicholas' Day, 6 December 1264, Richard of la Rochelle, the justiciar, with other magnates, was taken prisoner, at 6

Foedera, I. i. 3 4 1 ; Cal. Patent Rolls, 1247-1258, p. 475. He was expected to sail for Ireland about 4 June (ibid., p. 5 1 2 ) . He is addressed as justiciar on 27 June (Close Rolls, 1254-1256, p. 424). 8 Foedera, I. i. 377-78: many times reprinted in Stubbs' Selected Charters. 9 For the council on this occasion, see above, p. 26. 10 Hist, and Mun. Docts., pp. 141-43. The inquisition was taken on Wednesday after Trinity Sunday, that is, on 18 June, but this is not necessarily the date when the parliament assembled. For the inquisition, see also Cal. Archbishop Alen's Register, pp. 1 1 4 - 1 5 ; for the related documents, which explain why the inquisition was held, see ibid., pp. 101-14. 7

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or near Castledermot, by Maurice fitz Maurice and Maurice fitz Gerald. 1 1 For what purpose the magnates had assembled does not appear, probably for a council or parliament, since it is unlikely that they would have been captured had they been in arms. The outrage gave the signal for civil war. Geoffrey of Joinville assumed the functions of government, led a force against the Geraldines 12 and finally convoked an assembly of magnates at Dublin on 19 April 1 2 6 5 to settle terms of peace. 1 3 T h e conditions were embodied in a series of provisions or ordinances, though w e can be certain of only one of them, namely, that all persons should have, without resorting to legal process, the same estate as before the war, there having been in the course of it many violent disseisins. 14 T h e problem was to give these ordinances the force of law, and no better alternative suggested itself than to require the magnates present to swear to respect them. 15 Though one account would have it that the ordinances were the work of the council and commonalty of Ireland, 1 6 it is clear that Joinville himself was sensible of their informality since, when the ordinances were chal11 Although in a writ addressed to David de Barry, justiciar 1266-68, the date is given as 'die sancti Nicholai anno regni regis patris nostri quadragesimo octavo' (P.R.O., K.B. 27/18 [Michaelmas 1275], m - 48). there can be no doubt that the year was 1264. This follows from the fact that it was in 49 Henry III that the treasurer issued the money necessary for putting Dublin casde in a state of defense at the time of the capture of Richard of la Rochelle and other magnates (Deputy Keeper's Report, Ireland, xxxv. 47). The place of capture is stated in the Annates de Monte Fernandi (p. 1 4 ) to have been 'apud Desertum' (Irish Archaeological Soc., Tracts relating to Ireland, ii), in the Annals of Loch C6 (i. 448-49) 'in a consecrated church.' The annalists agree that the year was 1264. 12 This fact is only known from Pipe Roll, 5 Edward I, which, however, cites Pipe Roll, 49 Henry III (Deputy Keeper's Report, Ireland, xxxvi. 37). 13 So in the writ cited above: 'post pacem formatam apud Dubliniam a die Pasche in xv. dies anno eodem.' 14 P.R.O., Ancient Correspondence, xviii. 8. Geoffrey of Joinville writes to Edward I on 19 August 1274: 'Et ad illam perturbacionem prostandam et mulcendam ceteri magnates Hibernie et nos, tam propter vestri commoditatem tam propter terre vestre tranquilitatem in melius reformandam, plures fecimus prouidencias, inter quas prouisum fuit ut omnes et singuli, in tempore predicte perturbacionis disseysiti et expulsi de terris et tenementis, sine breui et placito, suas terras et tenementa recuperarent et eciam sua iura et acciones integre recuperarent in eodem statu quem habebant in principio dicte perturbacionis.' 15 This had been stated in an earlier letter of Joinville's, on 10 June 1274, referring to the ordinance in question: 'E ceste purveaunce les hauz homes de la terre e nous jurames a tenir' (ibid., xviii. 7). 16 In Edward's writ of 1266-68 it is stated that 'de communi consilio tocius communitatis Hibemie fuerit prouisum et statutum. . . . " A little earlier it had been averred in pleadings and accepted by an assize jury that the ordinance had been made 'per consilium domini Edwardi et communitatem tocius Hibemie' (P.R.O., K.B. 27/18 [Michaelmas 1275], m. 48).

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lenged, he asked Edward to uphold the oath that he and the other magnates had sworn. 17 It follows that this assembly, held in the absence of the justiciar, cannot properly be called an afforced meeting of the council, much less of the council in parliament: but the accounts we have of it are nonetheless important, both because of the identification, however inexactly, of the magnates with the council and commonalty of Ireland and because of the assumption by the assembly of the function of legislation, legislation which was finally upheld by the king's bench in England when it was sought to set one of the ordinances aside. 18 We shall appreciate how important our knowledge of this assembly is when we turn to an assembly held in the Michaelmas term 1269, where a provision was enacted, regulating weights and measures: this was done by the counsel of the justiciar and other lieges of the lord Edward who were also of his council, and with the consent of all the magnates and the whole commonalty of Ireland. 19 In the body of the enactment this assembly is not termed a parliament and there is no direct evidence to show that it was so styled and, at best, we can only infer that it was. Accepting it as such, what needs to be remarked is that a distinction is drawn between members of the council and the magnates and, further, that, in view of the terms applied to the informal Dublin assembly of 1265, we are not entitled to infer that a reference to the whole commonalty necessarily means that elected representatives were summoned. We shall do well to remember that in a feudal age an assembly of tenants in chief is representative of all the land and all the inhabitants of the land. For all are bound in some fashion by the nexus of tenure or, being landless, are of no account. The ideas that lie behind this conception are still dominant in the middle of the thirteenth century. Leaving aside the anomalous Dublin assembly of May 1265, we can take the meeting of 1264 at Castledermot and that of 1269 as typical, in some, though not in all, aspects of the Irish parliaments of the thirteenth century and the earlier years of the fourteenth. First as to the composition of a parliament. The nucleus is the privy council, but the magnates may be summoned to afforce the limited, primarily ministerial, membership which normally assists the justiciar. There are many references to the presence of the 'riches hommes,' the Tiauts 17 18 19

In his letters of 10 June and 19 August 1274, cited above. Cal. Docts. Ireland, 1 2 5 2 - 1 2 8 4 , p. 210. Hist, and Mun. Docts., p. 502; Early Statutes Ireland, p. 36.

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hommes' or magnates at parliament,20 and, in the record of the decisions on projected legislation put forward at a parliament in 1278, there is a reference to the presence also of the stewards and bailiffs of the land. These appear undoubtedly to be representing the greater lords of Ireland, who are said to be either absent or minors, and they join with the 'riches hommes' in pressing for the adjournment of a decision on the question whether the native Irish should be admitted to the use of English law. 21 There is no certain evidence of the presence of elected representatives in parliament before 1297, when two knights were summoned from each of ten counties and five liberties: on this occasion there were present also, besides the magnates, the sheriffs of counties and the stewards of liberties.22 No towns appear to have been required to send representatives in 1297, but cities and boroughs to which foreign merchants came were represented in parliament in 1299,23 while all cities and boroughs were required to send representatives in 1300.24 Therefore, it can be correctly stated that by the end of the century parliaments are being held to which representatives of all the principal local communities are summoned, towns as well as counties and liberties, but, as will shortly appear, they are summoned for special and limited purposes. There was no thought of securing 'a perfect representation of the three estates' or 'an assembly of the nation,' to use Stubbs's phrases. When elected representatives are summoned, it is because the justiciar, advised by the council, considers that some particular object can best be served in this way. Before we go farther it will be well to remark that it is not only to Irish parliaments that the king's Irish subjects may resort. They may resort also to the king's parliament in England. They do so because the king will not deny justice to any one of his subjects, be he English, Irish, Gascon, or whatever else. We have already had occasion to notice an excellent example in 1255, when the archbishop of Tuam placed before Henry III the grievances of the Irish church.25 As parliaments evolve in the two countries, a steady stream of Irish business makes 2 0 Appendices II and III; PTOC. R. Irish Acad., xxxviii. C . 144: E t tunc cito post fecit dictus custos proclamare quoddam parleamentum apud Dubliniam et ibi ordinauit per omDes magnates Hibernie de statu terre illius. . . . 2 1 Appendix II. 22 Early Statutes Ireland, pp. 194-96. 23 Ibid., p. 212: two citizens or burgesses from each. 24 Ibid., pp. 228-30: two or three from every city and borough. The counties were required to send two, three, or four representatives. 2 5 Above, p. 17.

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its way to the English parliament, a stream that rises to a flood in the middle of Edward I's reign, when sometimes there may be as much Irish business transacted at Westminster as is likely to come before any parliament in Ireland. 26 The flood soon spends itself, and as, in the course of the fourteenth century, the volume of private petitions falls to small dimensions, little business comes from Ireland to the English parliament, 27 though the council in its normal, its extraparliamentary, aspect still has much Irish business to transact. 28 For Irish business and, in particular, Irish petitions, came before the English parliament, not because it was 'an assembly of the nation,' but because it was a meeting of the king's council in parliament. The presence or absence of the 'estates' was irrelevant, for this purpose at least, and the English commons had nothing to do with Irish or Gascon affairs or any business but their own. 29 The king was still the ruler of a feudal state. As such he did not act in weighty affairs without the counsel of those who were bound to him by oaths of homage and fealty. And though, as lord of Ireland, he might delegate much of his authority to his justiciar, this delegation did not subtract from his own authority and he would act directly, if he thought fit, in matters apparently within the competence of his delegate. Coordinate jurisdiction of this kind is by way of being a commonplace in the medieval world: the court we are apt to imagine as a court of appeal is also a court of first instance. In the Roman Church there is what appears to be a hierarchy of courts, but the pope is the universal ordinary as well as the final resort of litigants. W e are not called upon to judge the devisers of these duplicated systems of law and administration—medieval men were very much alive to the abuses and advantages that sprang from them: but it is necessary to understand them, just as it is necessary to understand how men in a feudal age 26 See, for example, the rolls of Irish petitions of Hilary and Easter 1290, Michaelmas 1293, and Lent 1305 (Cole, Documents, pp. 55-82; Rot. Pari. Inediti, pp. 30-45; Maitland, Memoranda de Parliamento, pp. 232-54). 27 Bulletin Inst. Hist. Research, ix. 3-4. 28 Many later references will illustrate this. 29 For the procedure for dealing with petitions under Edward I, see Eng. Hist. Rev., xlvi. 542-46. A good illustration of the manner in which Irish litigation might find its way to the English parliament occurs as early as 1258. In an action between John of Verdun and the abbot of Mellifont in the common bench at Dublin the defendant had pleaded that he could not answer sine domino rege. At the instance of the plaintiff a writ was thereupon sent in the lord Edward's name to the defendant, summoning him to the king's court in England, and the action was heard during the parliament of Oxford in June (Proc. R. Irish Acad., xxxviii. C. 134, n. 45).

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approached the problems of government and how far distant their conceptions were from parliamentary democracy. And now let us look more closely at the functions of Irish parliaments under Edward I. We may take first their judicial aspect. For anything approaching a full account of business of any kind at any parliament we have to rely upon the record of proceedings contained in the justiciary rolls—rolls, that is, of the court held before the justiciar. We have good reason to believe that separate and distinct parliament rolls were already being written under Edward I, but these have all disappeared, as have all their successors, before the reign of Henry VI. 30 What these rolls contained and whether they duplicated, in part, entries on the justiciary rolls (which is by no means unlikely) are matters of conjecture. The only entry that we can be sure was on a parliament roll of Edward I recorded the delivery on mainprise to the earl of Ulster of two men who had been held as sureties by John fitz Thomas.31 This was, of course, a step in judicial procedure, and there are similar entries relating to mainprise in parliament entered on justiciary rolls.32 The subsequent proceedings, as in this particular case, need not be in parliament, though they would be recorded on a justiciary roll. The earliest known plea roll of the reign of Edward I contains many adjournments to the parliament of September 1279 in order that the actions may be heard before the justiciar. It is especially to be noted that the cases all affect important people, most of whom would certainly be summoned to parliament in the ordinary course. The subject matter of the action is, indeed, rarely stated: it seems evident that the status of the parties chiefly determines whether a case should come before parliament.33 Doubtless it suited the convenience of everybody that the issue should be tried there, though it may be that the court considered that, on other grounds, the justiciar should try the action, and a meeting of parliament had the further advantage that the justiciar would then be assisted by an afforced council. It will happen that, at an ordinary sitting of the justiciar's bench, a defendant will be mainprised until the next parliament, the implication being that he will then be tried.34 30

Below, p. 198, n. 24. Parliaments and Councils of Mediaeval Ireland, i. 200-201. Cal. Justiciary Rolls, 1293-1303, p. 306; ibid., 1305-1307, p. 354. 33 Appendix III. 34 Three entries of 2 December 1295: Cal. Justiciary Rolls, 1293-1303, p. 74; note also the entry on the previous page, of 24 November, where the date of appearance is that of the meeting of parliament. 31

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There may be a number of reasons why judicial business is brought before parliament. When the justiciar's lieutenant was prevented from hearing pleas at Newcastle Mackynnegan, by reason of the state of war existing there, he adjoined them until the next parliament and recorded the fact when parliament met.35 Among other items of judicial business in parliament we may note proceedings following upon returns by the escheator,36 the reopening, on the motion of the king's serjeant-at-law, of proceedings before justices itinerant,37 and proceedings against the dean and chapter of Ossory for electing a bishop before the king's congé délire had been received.38 In all these instances the fact that proceedings came before parliament, or rather the council in parliament, at some stage is due to the decision of some minister of the Crown. The subject might proceed by way of petition or plaint. Though no originals have survived, there is good reason to suppose that these took the form of a written bill in French. The difference between a petition and a plaint lay not in its form but in its substance: a petition asked for an act of grace, and a plaint asked for justice, though, naturally enough, the dividing line is not very definite and the distinction, drawn under Edward I, was not long maintained.39 Petitions, for the most part, came from prelates and magnates and ministers, who would be expected to attend parliament for other reasons; but the petitioners include the mayor and citizens of Dublin,40 the mayor and commonalty of Cork41 and of Drogheda,42 the lady of Wexford,43 the steward of Kilkenny,44 the Franciscans of Ross,45 a burgess of Drogheda,46 and other undistinguished people. Some petitions that have been presented to the king in England are referred to the Irish parliament.47 Among the plaints we shall do well to bear in mind the 'querimonia communitatum diversorum comitatuum,' which led to Ibid., pp. 382-83. 3« Ibid., pp. 383, 385-86. " Ibid., pp. 383-85. 38 Ibid., pp. 450-51. 3» Rot. Pad. Inediti, p. viii. 4 0 Appendix IV. 41 Cal. Justiciary Rolls, 1295-1303, pp. 225, 244; Early Statutes Ireland, 216-18. 42 Cal. Justiciary Rolls, 1295-1303, pp. 382-86. 43 Ibid., 1305-1307, p. 352. 44 Ibid., 1295-1303, p. 305. 45 Ibid., 1305-1307, p. 351. 46 Ibid., p. 352. 47 Ibid., 1295-1303, pp. 123, 224. 35

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legislation for regulating wages in the Easter parliament of 1299.48 The petition is so characteristic a feature of later parliamentary procedure that we are led naturally to inquire whether organized parliaments and an organized system of petitioning arose at the same time. There is no doubt that in England it was contemplated at the Oxford parliament of 1258 that plaints against injustice should be reduced to writing in the counties and presented for trial by specially appointed tribunals,49 but there is no evidence that plaints or petitions in any considerable numbers were presented in English parliaments before the reign of Edward I.50 In Ireland there is nothing to suggest any organized scheme for redressing individual grievances embodied in written plaints61 until July 1268, when Henry of Almain, the king's nephew, was sent to Ireland to hear and determine pleas, plaints, and demands from all men. Henry had authority to act as though he were, for this purpose, the king himself.52 No rolls recording his judgments survive, but it seems clear that the procedure followed must have resembled closely that of the justiciar of England in the eyres after the parliament of Oxford, at which very large numbers of plaints were heard and determined.53 Now, while there is an obvious relation between the hearing of plaints by special tribunals of this kind under Henry III and the organized system of presenting and trying petitions in parliament which we find under Edward I, the manner and reason of this development are obscure. That the development was deliberately contrived we cannot doubt, but no evidence touching this large, and largely new, province of parliamentary activities is to be found until the growth in the number of petitions presented in the English 48

Early Statutes Ireland, p. 214. Richardson and Sayles, Select cases of procedure without writ, pp. xxxiiixxxvi. 50 Rot. Pari. Inediti, pp. vii-x. 51 We stress the words 'organized scheme.' Plaints had doubtless sometimes been made in writing to the king, the justiciar, or the courts. It so happens that one of the earliest certain examples of written plaints is Irish: the loquelae et querelae brought against William de Burgh in 1204 by Meiler fitz Henry (the justiciar) and others. These were, however, in the form of letters patent sealed by the complainants and not in the form of unsealed bills. They were apparently addressed to the king, but a transcript was sent to the special tribunal, headed by Walter de Lacy, appointed to try them (Rot. Litt. Pat., p. 3 9 b ) . 52 P.R.O., Patent Roll, no. 86 (52 Hen. Ill), m. 10, schedule 1: ad omnes loquelas, querelas et demandas quorumcumque terre predicte audiendas et terminandas et ad omnia alia facienda que nos ipsi feceremus si ibidem presentes fuissemus. . . (corresponding to Cal. Patent Rolls, 1266-1272, p. 246). 53 Select cases of procedure without writ, loc. cit. 49

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parliament necessitated a more elaborate system for their expedition.54 But, however the system came into being, once it had become established in England there was not likely to be a very great interval before it was reproduced in Ireland, especially since, as has already been said, many Irish petitions were presented in the English parliament, the earliest known being found in 1283. 55 As in England, so in Ireland, much administrative business came up for discussion on the occasion of parliament. Such questions as the renewal of local warfare against the king's enemies,56 or the garrisoning and provisioning of castles,57 the grant of oaks from the king's forest,58 the payment of fees and expenses of various kinds, 59 questions of wardship,60 partition among co-heiresses, 6 1 marriage, 62 the grant of lands,63 enrollment of private charters,64 and the rendering of fealty, 65 alienations of abbey lands,66 pardons,67 the admission of a judge, 68 supplies of wine for the king: 69 all these matters came before the council in parliament in the later years of Edward I. They were dealt with then, either because there was available better and more plentiful counsel of ministers and magnates, or because there was greater publicity, or because, since on the occasion of parliament the attendance of some minister or magnate was necessary, there was a convenient opportunity for the transaction of some particular piece of business. On the other hand, taxation is not specifically a matter to be considered in parliament. The new customs granted to Edward I were, in the first instance, considered in the Westminster parliament of Easter 1275. Twelve magnates in attendance there agreed to a similar grant in respect of their ports in Ireland as they had already 54 The first ordinance was in 1280, the second in 1293: both are printed from the Close Roll in Ryley, Placita Parliamentary, pp. 442, 459: see also Cal. Close Rolls, 1279-1288, pp. 56-57; ibid., 1288-1296, p. 289. 55 Rot. Pari. Inediti, pp. 15, 22-24. 36 Cal. Justiciary Rolls, 1295-1303, p. 73. 37 Ibid., 1305-1307, pp- 353, 35558 Early Statutes Ireland, p. 218. 39 Ibid.; Cal. Justiciary Rolls, 1305-1.307, pp. 353-54. 35760 Ibid., 1295-1303, p. 452. 01 Ibid., p. 306. «2 Ibid., p. 428. 63 Ibid., 1305-1307, pp- 354-5564 Ibid., p. 351. 63 Ibid., pp. 3 5 1 , 353. 66 Ibid., p. 350. S7 Ibid., 1295-1303, p. 305; 1305-1307, p. 352. 68 Ibid., 1295-1303, p. 306. 69 Ibid., 1305-1307, p. 353.

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agreed to in England and Wales. The justiciar was thereupon notified and instructed to induce, by such means as he thought fit, the higher clergy and magnates, the commonalties (communitates) and merchants of Ireland, to make a grant in the same form.70 In 1291 the procedure was on the same lines. The king had been granted a lay subsidy of a fifteenth and a clerical subsidy of a tenth from England, and he obtained the assent of the archbishop of Dublin and of a number of English magnates, holding lands in Ireland, to a corresponding grant. On this occasion, however, we know that an assembly of the barons, magnates, and the fidelis communitas of Ireland was convened at Dublin for 28 January 1292, where a grant of a fifteenth was made. This meeting is not termed a parliament in the only surviving document that describes it. The negotiations for a clerical tenth were conducted at convocations of each ecclesiastical province. Here the king's demands were resisted, in particular by the lower clergy,71 and in the end the alternative was adopted of obtaining from the pope the grant of a sexennial tenth.72 In 1300 the king made another demand for a subsidy and for the first time, so far as our knowledge goes, the request was considered in a parliament, specially convened for the purpose, to which representatives of the counties and boroughs were summoned. Prior to the meeting of parliament the justiciar entered upon individual negotiations with the towns and, when parliament met, he was advised to negotiate similarly with the counties and franchises, with which the lay magnates agreed to contribute. In the event, a large number of individual bargains were struck with urban and rural communities, the tenants of ecclesiastical lords negotiating and contributing separately from the rest of the county or franchise.73 It would appear, too, that the clergy agreed to contribute, but that the actual amount was the subject of negotiations with each diocese.74 70

Pari. Writs, i. 1-2. Doubtless the clergy resisted because they had recently been required to pay a sexennial tenth to the pope, which he had shared with the king. This tax had been imposed in 1274. ^ w a s collected slowly, but the bulk was realized by 1287. Little is known of the tax in Ireland beyond the bare fact that it was collected (Cal. Docts. Ireland, 1285-1292, p. 526). For the general facts and the collection in England and Wales, see Lunt, Financial Relations of the Papacy with England, pp. 311-46: he estimates the Irish contribution at £10,100 (p. 341). 72 Parliaments and Councils of Mediaeval Ireland, i. 193-99. The pope had already granted the king a sexennial tenth in England and Wales, which, after an elaborate process of assessment, began to be collected in 1292 (Lunt, op. cit., pp. 346-65). 73 Early Statutes Ireland, pp. 228-36. 74 Analecta Hibemica, ii. 229. This writ of 15 August 1300, appointing super71

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There was an earlier parallel in 1282, when the king was seeking to raise, not taxes, but loans to meet the expense of the Welsh war. On this occasion Thomas of Clare and the escheator, John of Sandford, were commissioned to treat with the heads of religious houses and with towns and townfolk and obtain either individual or collective loans, the amounts to be related to the capacity of the individual or the community, as the case might be. While the justiciar was kept informed, he seems to have taken no part in the negotiations, although he was responsible for the bonds issued to lenders for the repayment of their loans. How the commissioners of 1282 conducted the business does not appear, but the use of the words colloquium and tractatus in their instructions would be compatible with a round of visits to religious houses and towns.75 Under Edward I, legislation is a function of parliament, although the field left to the Irish parliament is limited to specifically Irish questions. The king is legislating in his English parliaments for Ireland as well as England, and his statutes cover large areas of the common law. Nor is it in parliament alone that the king legislates: there is no suggestion that certain ordinances relating exclusively to Ireland, which Edward transmits from Canterbury on 12 July 1293, have been considered by his council in parliament.76 Normally, however, a meeting of parliament is regarded as a suitable occasion for legislation, and such records of legislation in Ireland under Edward I as we possess are parliamentary. The earliest is of a parliament of 1278. The subjects dealt with include the resettlement of derelict lands, the observance of English statutes, the recurrent problem of uniform weights and measures, the procedure to be followed in actions of replevin, proceedings against harborers of felons and—the subject demanding most attention—the position of the native Irish in regard visors of the collection of the subsidy lately granted at Dublin, must refer to the grants in the post-Paschal parliament. It is difficult to reconcile the statement that the laity granted twelvepence a ploughland and, in other parts, two shillings with the statements in Early Statutes Ireland, p. 234, unless the round sums there given represent an agreed composition for the authorized rates. The clergy granted a tenth 'siue alia summa loco decime.' 75 Foedera, I. ii. 6 1 7 : the documents will also be found in Pari. Writs, i. 386; Lynch, Legal Institutions, pp. 306-7; Cat. Chancery Rolls, Various, 1277-1326, pp. 239-40. 76 Early Statutes Ireland, pp. 190-94. It is possible, however, that the consideration of these ordinances had been adjourned, with other business, from the Easter parliament to a special meeting of the council at Canterbury in July (Rot. Pari., i. 96-99, 125-26; Bulletin Inst. Hist. Research, vi. 1 4 8 ) .

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to the common law.77 In 1297 another parliament devoted much attention to the problem of the native Irish, especially those who were in a state of war with the Anglo-Irish, but it dealt also with the reform of local administration and the repression of crime.78 Legislation in 1299 dealt with currency, the regulation of wages (fifty years before similar legislation in England), and the prohibition of the feeding of swine in the Curragh.79 It is quite possible that at other parliaments under Edward I there was legislation of which no record has survived, but there is no reason to doubt that what still exists represents very fairly the scope of Irish legislation at this period. It is convenient at this point to pause and draw some general conclusions on the Irish parliament under Edward I. If we have frequent reminders that a parliament is a session of a court held before the justiciar and council,80 we see also that, despite the triviality of much of the business transacted, the session is one of special solemnity, marked off from other sessions of the council. This aspect of parliament is well brought out in a petition that the mayor and citizens of Dublin addressed to the king. They relate how they were in peaceful possession of certain land until, during the Dublin parliament in the Easter term 1281, they were ejected by Sir Theobald Butler. They could, they say, have resisted him, but they suffered the wrong because they were reluctant to disturb the parliament, out of respect for the magnates who had come there as well as reverence for the king. They go on to express their view that a deed done while parliament is in session should be remedied in the same parliament.81 This principle is exemplified by the case of Richard le Blake, who was assaulted by Adam le Blunt during the parliament at Kilkenny in December 1302: the assault was on Monday and the trial on the Wednesday following.82 It is the magnates, the great men, who are of the king's common council in Ireland83 and whose presence certainly contributes to the solemnity of the occasion. The presence of representatives of counties and boroughs is adventitious: they are brought there for some special 77

Appendix II. Early Statutes Ireland, pp. 194-212. 79 Ibid., pp. 212, 216 80 Cal. Justiciary Rolls, 1295-1303, pp. 123, 305, 382-83; Early Statutes Ireland, pp. 212, 218, 236. 81 Appendix IV. 82 Cal. Justiciary Rolls, 1295-1303, pp. 453-54. 83 Early Statutes Ireland, p. 196: 'in presencia predictorum episcoporum Mydensis, Leglinensis et comitum et baronum et aliorum optimatum hie comparencium de communi consilio domini regis in hac terra.' 78

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discussion, some limited purpose. This is no new departure. Leading burgesses were to be consulted in 1244 before uniform weights and measures were proclaimed in cities and market towns, and it may well be that representatives from the towns were called to a meeting.84 We have already seen that there is some evidence that representatives of towns and counties and franchises were summoned to discuss taxation in 1254, 85 and the fidelis communitas at the meeting of 1292 may have consisted of similar representatives, also summoned to discuss taxation.86 Whether there was any general consultation at a specially summoned meeting to discuss the new customs in 1275 does not appear, but some consultation with representatives both of counties and of towns is implied in the writ sent to the justiciar.87 The presence of representatives of counties and franchises in the Dublin parliament of 1297, as well as the presence of sheriffs and stewards, seems evidently to be for the purpose of discussing the administrative changes decided upon at the parliament.88 There is no question but that the town representatives present at the Easter parliament of 1299 were there to discuss the question of foreign currency.89 The summoning of knights and other worthy men from certain counties to this parliament has all the appearance of an afterthought when legislation for regulating wages was contemplated in response to the complaints put forward in parliament.90 It was plainly the king's demand for a subsidy that occasioned the summoning of representatives from counties and towns to the Easter parliament of 1300. We must dismiss any idea that popular representatives have yet an essential part to play in parliament: much more often than not parliament functions without them. 84 80 88

88 89 1)0

Close Rotts, 1242.-1247, pp. 252-53. Above, p. 53. Above, p. 67. Pari. Writs, I. i. Early Statutes Ireland, pp. 194-96. Ibid,., p. 212. ibid., pp. 214-16.

6 PARLIAMENT IN THE FOURTEENTH CENTURY

HE reign of Edward II and the early years of Edward III witnessed profound changes in the English parliament. What happened may be briefly stated in this way. 1 While under Edward I the business of parliament was conducted chiefly by the professional servants of the king, under his successors the baronage became dominant in the enlarged council (magnum concilium) which held its sessions in parliament. The conception of peerage took definite shape, with the consequence that the issue of individual writs of summons became restricted and ministers, unless they happened to be spiritual or temporal peers, sank to the position of assistants. Over the same period the commons came to be invariably summoned to parliament and came also to be regarded, in place of the baronage, as the peculiar representatives of the commune or nation at large. In this way a house of lords and a house of commons evolved as the constituents, under the king, of parliament. This evolution was aided by the contemporaneous, but apparently unconnected, loosening of ties between the convocations of the clergy and parliament. The conditions and circumstances which determined the changes in the English parliament did not obtain in Ireland, but gradually the Irish parliament was assimilated to that of England, though the assimilation was never complete during the Middle Ages. The changes in the constitution of the English parliament were accomplished by changes in the character of the business transacted. The great volume of private petitions, which had entailed the preparation of substantial enrollments under Edward I, contracts, and after 1332 separate rolls seem no longer to be made up because the necessity for them had ceased. Much of this source of parliamentary business is ultimately diverted to the courts of equity, though parliament is never without private petitions which, in their more modern form, become private bills. Gradually, too, the miscellaneous administrative business of parliament dwindles until, by the fifteenth century, it has disappeared. On the other hand, the common

T

1 Eng. Hist. Rev., xlvi. 529-50, xlvii. 194-203, 377-97; Bulletin Inst. Hist. Research, ix. 1-18; Trans. R. Hist. Soc. (4th series), xxviii. 21-45.

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petition—a series of requests and complaints put forward, or vouched for, by the commons as a body—becomes an invariable feature of every parliament and, though at first dealing largely with matters of administration, becomes the normal, though not the sole, method of legislation. Taxation becomes more frequent under the strain of constant foreign war, and requests for supply are addressed by the king's ministers to the commons in parliament, whose primary responsibility for voting taxes becomes established, though the clergy vote their taxes separately in the two provincial convocations of Canterbury and York. These changes, like the changes in the constitution of parliament, are reflected in Ireland, but differences are marked. Let us approach a description of Irish parliaments in the reign of Edward II and the earlier years of Edward III by attempting an account of one parliament about which we possess an unusual amount of information, the parliament that met at Dublin a month after Easter, that is, 13 May 1324. First let us see it through the eyes of Richard Leatherhead, bishop of Ossory. His feud with Arnold le Poer was at its height and he was, or believed he was, in danger of his life: so he went to parliament by a devious and difficult route and arrived late. On his arrival he found the prelates and nobles assembled: at once he asked leave to speak and request assistance in a cause touching the Christian faith, but he was bidden to be silent until parliament ended. On the following day the justiciar and the king's council were meeting in private, and in the hall there were assembled earls, barons, and other magnates—a description which is evidently intended to include the bishops. Arnold le Poer came in, accompanied by a band of followers clad in his livery, bearing in his hand a message from the council. This set out three articles for discussion in parliament, the first being that it was the king's will that the Church should enjoy the liberties contained in the Great Charter. 2 ^Vhat the other two articles were the story does not relate. It goes on to tell how Arnold delivered a pointed and offensive exposition of the first article, to which Bishop Richard, at the instigation of his fellow bishops, made a long and eloquent rejoinder, and how, after a further altercation, Arnold and his company left the hall. But we may be sure that the council's messenger read and expounded the other articles before he left. However, Bishop Richard cared little for these things, and we are next told that the rest of the bishops and prelates and, in particular, the dean of St. Patrick's (who seems to have been acting as 2

Cf. Early Statutes Ireland, p. 280, cap. 1.

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proctor for Archbishop Alexander Bicknor, whose vicar general he was) urged him to make peace with Arnold le Poer. Finally it was agreed to refer their quarrel to the arbitration of four bishops and the dean, who decided that Arnold should abase himself and beg Bishop Richard's pardon. This he did and the two exchanged kisses of peace before the prelates and the whole council.3 There can be no doubt, however, that the main business of this parliament is what is found recorded on the close roll, that is, the maintenance of the common law and the safeguarding of the king's peace. We may be sure, too, that this was the subject of at least one of the articles expounded to the magnates by Arnold le Poer. It is clear that past efforts to establish law and order were reviewed, in particular the solemn sentence of excommunication, pronounced at the close of the Kilkenny parliament of Candlemas 1310, against those who broke the peace or violated the ordinances that had just been promulgated in that parliament, and also the ordinances of the Dublin parliament of Easter 1320. There was general agreement that the common law, the Dublin ordinances and the good usages of the land should be observed and maintained in every point and, for their part, the earls, barons, and other nobles agreed that, before the next parliament, they would do their utmost to arrest the felons, thieves, and robbers among their own people and followers. But, conscious of their past failings, the earls and magnates asked that they might be absolved from the sentence of excommunication passed at Kilkenny in 1310 and that the sentence should not be renewed until the next parliament: and this the prelates, the justiciar, and others of the council accorded.4 Of the miscellaneous business that, we may be sure, fell to be done in this parliament, as in others of the period, no record seems to have survived, but we may notice one piece of business which, though in no sense parliamentary, was transacted tempore parliaments There still exists a decree of the dean of St. Patrick's, acting in his capacity as a delegate of the pope, breaking up communities of Franciscans which were wholly Irish, so that they might be intermixed with English friars. This decree is dated 7 April 1324, but there follows an addendum, dated at Dublin, in the time of the general (commune) parliament, 21 May 1324, permitting Irish lectors and guardians in Clare and Galway and four other places: this addendum is confirmed 3 4

Proceedings against Alice Kyteler (Camden Soc.), pp. 16-20. Early Statutes Ireland, pp. 306-8.

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by the bishops of Ossory, Waterford, and Connor, all of whom were evidently attending parliament.5 For England there is a good deal of evidence to show that the presence of so many people of importance at parliament afforded a good opportunity for transacting other business of a private character, and, while we should guess that this would be the case in Ireland also, an actual example is very welcome. We may, as has been indicated, accept this parliament as generally representative of parliaments at this period, that is to say, until the middle years of the reign of Edward III. One feature we should especially notice—the absence of all reference to any activity on the part of the 'commons.' We might doubt whether, indeed, any representatives had been summoned from counties or from towns, did not the record in the close roll speak of the assent of all the common people— tot le commun people—in such a way as to distinguish them from the prelates, earls, and barons, who otherwise might have been held to represent the commonalty. We are forced, therefore, to conclude that the common people were in some fashion specially represented on this occasion. However, apart from assenting to what was agreed between the magnates and the council—a purely passive role—they have seemingly nothing to do. If they are in the hall when the bishop of Ossory is contending with Arnold le Poer, the narrative does not mention them: perhaps they are standing—wondering spectators, but too insignificant for mention—beyond the bar, where later we see them when they have won a permanent place, and a place of some consequence, in parliament. The distinction that is evident is not between commons and lords: there is no hint of any separation of lords and commons into two "houses,' and, if the lords have, in a sense, a house, the commons have none. The manifest distinction is between the council, who deliberate in a chamber apart, and the magnates, who conduct their discussions in the hall. Magnates and council have not yet coalesced in parliament. It is true that some magnates, like Arnold le Poer, may be of the council and may, therefore, be in parliament in a double capacity. 6 But the council is essentially ministerial—to quote the close roll, the justiciar, the chancellor,7 the treasurer and Cal. Omiond Deeds, i., pp. 241-42. We have already notice«! his acting as messenger on behalf of the council. He acts with the magnates and, like the others, sets his seal to the indenture which binds them to suppress crime among their own people (Early Statutes Ireland, p. 308). 7 Cf. Proceedings against Alice Kyteler, p. 34: 'Domine,' inquit, 'cancellarie . . . qui de concilio regis post justiciarium estis principalis. . . .' 5

8

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all the others of the king's council in Ireland—and one principal reason for their presence in parliament is to transact business, as a body, with the magnates, as a body. There is no great reason why representatives of the commons should be frequently summoned to parliament. They had no useful part to play in expediting the relatively trivial business that seems to have consumed much parliamentary time, such as the examination of deficiencies in the accounts of sheriffs or collectors of taxes or others indebted to the Crown, 8 requests for the remission of a town's taxation,9 the extension to native Irish of the benefits of English law, 10 or the proclamation of royal service which occasionally, but not necessarily, received parliamentary authority.11 General taxation was infrequent, as was also legislation; and although much public distress was caused by the dissensions and lawlessness of the great, and meetings of parliament seem to have been seized upon as occasions to appease or control the contestants,12 it is difficult to conceive that the intervention of the commons would have been welcomed. Their presence when an earl was admitted to mainprise or a bishop to compurgation might give public notoriety to the act, but in the act itself, in the proceedings of the highest tribunal in the land, the commons, to all seeming, had no part or lot.13 We must, of course, remember that we possess very few records that throw light on the Irish parliament at this period and that this deficiency may be due to mischance as well as to the infrequency or inactivity of parliament. But it cannot be entirely due to mischance that, from the i33o's until the last decade of Edward Ill's reign, Irish parliaments have left so little trace. And it is significant that as late as 1345 a parliament might be summoned 8 Parliaments and Councils of Mediaeval Ireland, i. 3-5. See also the case of the sheriff of Waterford, who is adjourned to the parliament of Kilkenny, there to find security for payment of arrears on his account (P.R.O., Dublin, Cal. of Memoranda Rolls, x. fo. 175-76: from Memoranda Roll, 9 Edward II). 9 Parliaments and Councils of Medieval Ireland, i. 5-6. 10 Ibid., p. 17: this relates to an individual case in 1333. The general question had come before parliament in 1328 when it had been regarded as a matter for the magnates: see below, p. 98. 11 Ibid., pp. 9-10. 1 2 These incidents attracted the attention of the writer whose notes underlie the annals, as in 1309, 1310, 1317» 1329 (Annals of Ireland, pp. 294, 302, 339, 354-55. 369; Annals of Kilkenny, pp. 58, 86, 110-12). 1 3 W e have a detailed account of the mainprise of the earl of Desmond in 1333 (Parliaments and Councils of Mediaeval Ireland, i. 12-17), and what purports to be one of the compurgation of the bishop of Ossory, apparently in 1328 (ibid., pp. 202-4). There is no mention of the presence of the commons on either occasion.

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that consisted exclusively of ministers, prelates, and magnates,14 and that it may not have been until shortly before 1370 that the rule became invariable for representatives of the commons to be summoned to attend.16 With these words we may pass to a description of parliament as we see it, by fitful glimpses, in the middle years of Edward Ill's reign and, again, as we find it in Edward's closing years and the early years of the reign of Richard II, a period for which we have a relative abundance of records. It will, however, be well to defer for a little a discussion of the evolution of an Irish peerage and, for the moment, content ourselves with the statement that the prelates, magnates, and council have, by about the year 1370, coalesced into what is recognizable, in all but name, as a House of Lords: these are the peers who, in the words of the Modus tenendi parliamentum, are judges and justices in parliament, as contrasted with the commons who are petitioners.16 It will be best also to defer for the present an examination of the composition and numbers of the lords' house, but it may be helpful to remark that, excluding ministers, the maximum number that might be summoned did not greatly exceed eighty, divided fairly evenly between spiritual and temporal peers, that this number of peers was never summoned at any one time, that it is unlikely that all those summoned attended or were represented, and that the tendency during the last thirty years of the fourteenth century was to reduce the number of writs of summons. If we suppose the number of lords usually in attendance or represented by proctors to have been about forty or even considerably less, we shall not be greatly in error.17 Then, turning to the commons, we must recognize that until 1370, when, to all seeming, they had an established place in parliament, our knowledge is very defective and we can make few conjectures to supply the want of detailed information. Certain of the facts that are known prevent us from postulating the presence of the commons at any parliament before 1370: for example, that a parliament could be summoned in 1345 without popular representation and that in 1359 the dispatch of the chancellor to acquaint the king's council in Eng14

Deputy

Keeper's

Report, Ireland, liv. 24: p a y m e n t s to messengers taking writs

directed to prelates, magnates, and ministers for the Trinity parliament of 1345. There is no mention of sheriffs, stewards (of franchises), or chief officers of towns, as in the case of the Hilary parliament of 1329 (ibid., xliii. 34). 15

Below, pp. 77-78.

18

Irish Modus, cap. 15.

17

Below, pp. 120-33.

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land with the state of Irish affairs required the assent of the prelates, magnates, and nobles in parliament but that the commons were not so much as mentioned.18 Even as late as 1382 a distinction appears to be drawn between a magnum parliamentum, to which prelates, nobles, and commons are summoned, and parliaments that cannot be so described because they are not numerously attended.19 This distinction may, however, be no more than a reminiscence, for there is evidence that justifies us in believing that under Edward III the practice is becoming more and more frequent of summoning representatives of the counties and the towns to parliament. The petitions from the prelates, earls, barons, and commons that were presented to the king early in 1342, 20 we need hardly hesitate to ascribe to the parliament that met at Dublin in October 1341 and was continued at Kilkenny in November,21 and we have the direct statement that the commons took part in the two great councils of 1351, 2 2 in the 'general' council at Kilkenny in 1360,28 in the parliament at Kilkenny in 1366,24 and again in the parliament at Dublin in 1368. 25 We know that they were summoned to the councils at Dublin and Waterford that met a week apart in 1359, 26 and we can go so far as to infer their presence at the few other great councils and parliaments within this period at which we know that subsidies were granted.27 For the two functions, which we can be reasonably certain the commons were expected to perform in these years, are the presentation of grievances, as in 1351 and 1366, and 18

Parliaments and Councils of Mediaeval Ireland, i. 18-19. Foedera, iv. 144. 20 Early Statutes Ireland, pp. 332-62. Another text, with additional articles which presumably were deleted before entry on the close roll, is to be found in B.M., Lansdowne MS. 482, fos. 121-416. The king's reply is dated 14 April 1342 (Foedera, II. ii. 1193). 21 Annals of Ireland, p. 383; Annals of Kilkenny, pp. 132-34. The account here given of the parliament is, however, difficult to accept, since it seems at variance with the official documents. It appears evident that the 'petitions' were prepared in response to a request for advice, but they are highly critical of the administration and the justiciar and ministers may well have declined to be associated with them. The chancellor, Robert Askeby, may have refused to seal them, and it is significant that he was replaced by the prior of Kilmainham, one of the messengers deputed to bring the petitions to the king. 22 Early Statutes Ireland, pp. 374-96. 23 Parliaments and Councils of Mediaeval Ireland, i. 19-22. 24 Early Statutes Ireland, pp. 430-68. 25 Foedera, III. ii. 854. Moreover, we have here, as also in earlier letters close of 28 July 1368 (ibid., p. 848), a reference to representations, at unspecified times, by the commons as well as the magnates on the subject of absentee landlords. 26 Lynch, Legal Institutions, pp. 3 1 5 - 1 7 . 27 In 1335, 1346, 1350, 1353, 1360, 1363, and 1369: see below, pp. 1 1 1 - 1 3 . 19

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assent to taxation, which comes prominently to the fore in the 1370's. The numbers of the commons can be estimated from the lists of counties, franchises, and towns to which writs of summons were addressed in the years 1375, 1378, 1380, 1382, and 1394.28 These were all that had survived in modem times, but there is no reason to suppose that they are not fully representative of the later fourteenth century. The maximum number of counties and franchises was fourteen, 29 and although the crosslands within the franchises were, in principle, separately represented, they appear merely to have divided the representation by electing one knight. 30 The maximum number of towns was twelve. 31 W e have thus twenty-six constituencies, to use the modern term, returning a possible total of twenty-eight knights and twentyfour burgesses. It is unlikely that fifty-two commons ever assembled at any one time, but (if it is safe to draw an inference from the detailed information we have for the years 1420 and 1421) the usual number may not have fallen very greatly below this figure. W e may add that in 1375, besides the elected representatives of counties, franchises, and towns, the sheriffs, stewards, mayors and other chief magistrates were required to attend the Hilarytide parliament, 32 but if their attendance was required at other parliaments, we have no record, and it did not become a feature of later parliaments. By the 1370's the lower clergy, too, have their representatives in parliament. They appear to be newcomers. The fact that a subsidy was granted by the clergy in a parliament at Dublin in 1361 and at a council or parliament in 136333 points to the possibility that the lower clergy were represented in some fashion on these occasions. But since 2 8 All printed by Lynch, Legal Institutions, pp. 321-34, except that of 1382, for which see Cal. Rot. Pat. Hib., pp. 118-19, n o s - 121-31. The writs of summons of 1375 are reproduced in Appendix V. 2 0 Carlow, Clare (in 1376 only), Cork, Dublin, Kerry, Kildare, Kilkenny, Limerick, Louth, Meath, Tipperary, Ulster, Waterford, Wexford. 3 0 Although the steward of the franchise and the sheriff of the crosslands seem normally to have been the same person, separate writs were sent. The clearest indication that the franchise and crosslands returned only two knights is afforded by the returns from Meath, Kilkenny, Tipperary, and Kerry to the writ of 25 October 1375, summoning representatives to England (Ayloffe, Ancient Charters, pp. 457-59). Separate elections by the commons of the franchise and the commons of the crosslands are recorded for Meath in 1420 and 1421 (Parliaments and Councils of Mediaeval Ireland, i. 138, 163, 171, 172). 3 1 Athenry, Cork, Drogheda, Dublin, Galway, Kilkenny, Kinsale (in 1382 only), Limerick, New Ross, Waterford, Wexford, Youghal. 3 2 See Appendix V. 3 3 Below, p. 113.

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it appears to have been intended that both the bishop and the lower clergy of a diocese should be represented by a single proctor at a council in 137034 and again at a parliament in 1375,33 it is evident that the independent representation of the lower clergy was not yet established. Moreover, although the writs of summons to the Epiphany parliament of 1371 provided for the separate representation of the lower clergy, in the case of the diocese of Armagh it was found convenient for the clergy and the archbishop to be jointly represented by the same proctors.36 Then again, arrangements had been made in 1370 for the lower clergy to be consulted in convocation in order to give effect to a decision taken in a great council.37 Quite clearly, while the principle was accepted that the consent of the lower clergy was necessary to a tax that affected them, the method of giving effect to the principle was fluid. It is only when we look back from the fifteenth century that we can be sure that, out of these various devices, there will issue the invariable practice of summoning proctors to represent the clergy of each diocese of which the bishop is himself summoned to parliament.38 This follows, of course, from the form of the writs of summons,39 and obviously, if the bishop was not summoned,40 it was not to be expected that the lower clergy would be represented. The minimum, perhaps we should say the standard, number of dioceses to which writs of summons were addressed appears to have been eighteen,41 but it is unlikely that there was ever a full attendance of proctors, while Armagh inter Anglicos was represented by one proctor only,42 and a similar privilege might on occasion be extended to other dioceses.43 From the way in which representation of the lower clergy Parliaments and Councils of Mediaeval Ireland, i. 29. Ibid., p p . 52-5336 Ibid., p. 37. 37 Ibid., pp. 32-34. 3 8 B e l o w , p p . 183-86. 3 9 See A p p e n d i x V . 4 0 W h e n sees w e r e vacant, the keepers of the spiritualities w e r e required to send proctors. 4 1 Particulars are given later ( p p . 1 2 1 - 2 4 ) . It m a y b e a d d e d that the writs requiring proctors to b e sent to E n g l a n d in 1376 appear to h a v e b e e n addressed to only fifteen dioceses. In the province of T u a m , only t h e archbishop r e c e i v e d a writ, to w h i c h he m a d e n o return, and in the province of A r m a g h only the archbishop and the bishop of M e a t h ( A y l o f f e , Ancient Charters, p p . 4 4 6 - 5 3 ) . 4 2 W h e n this practice w a s originated is uncertain, b u t it w a s apparently well established in 1409, see b e l o w , p. 183. For later years, see Parliaments and Councils of Mediaeval Ireland, i. 143, 153; Register of John Swayne, pp. 53, 144 et passim. 4 3 So Kildare in 1461-64 (Statutes, 1-12 Edward TV, p. 1 9 6 ) . 34

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arose there was little likelihood that their proctors would coalesce with the knights of the shire and the burgesses in parliament, and they did, in fact, remain a small and separate "house' until they were swept away as an obstructive redundancy in the sixteenth century.44 At the period of which we are treating, their position, besides being uncertain, is obscure, but, without any question, they were insignificant. With this outline of the constitution of parliament before us, let us turn to its functions. No parliament rolls have survived for any period in the fourteenth century and we have to content ourselves with such morsels of information as chance has left to us. We learn most from the voluminous documents occasioned by the accusations levelled against William of Windsor in the 1370's. To enter in any detail into a long and complicated story would take us far from our purpose, but, if we are to understand the background of parliamentary history at this period, something must be said of Windsor's career in Ireland. His first acquaintance with the country seems to have been in 1362 when he held a command under Lionel, Earl of Ulster (later duke of Clarence), and provided a force of men-at-arms and archers.46 His appointment in 1369 to be lieutenant of Ireland was doubtless because the king's council in England had resolved upon a renewal of military operations, and one of the obligations he undertook was the provision of a force of eighty men-at-arms and a hundred and fifty archers.46 The intention was that, as with Clarence's expedition, the cost, or at least the greater part of it, should be borne by the king or, in other words, should be a charge on the revenues, ordinary and extraordinary, of England. From this source Windsor was to be furnished with £20,000, payable in installments.47 The number of men he actually engaged greatly exceeded, however, the number specified in his indenture,48 and by the end of 1370 all the money supplied from England had been expended, as well as the proceeds of certain new customs duties granted in 136949 and a subsidy of a mark on every ploughBelow, pp. 184-86. His first indenture was dated 10 June 1362 (P.R.O., E. 101/28/47), and he remained in Ireland until 22 June 1363 (E. 101/28/13, 21, 22). He entered into a second indenture for providing a larger force on 8 November 1363 (E. 368/137 [39 Edward III], Trinity Recorda, m. 10). 4 6 E. 101/30/1. 4 7 From the account rendered by Windsor, it appears that £. 10,000 was issued in the twelve months from 20 June 1369, f . 6,000 in the next twelve months, and £4,000 after June 1371 (E. 101/30/1). 4 8 E. 101/30/2; 31/25. 49 Parliaments and Councils of Mediaeval Ireland, i. 27-28. These duties were 44

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land that had brought in a little short of £i5oo. s 0 The continuance of the war on the same scale plainly meant either fresh finance from England or taxation far heavier than had been customary for many years in Ireland. Windsor endeavored to obtain money from both sources and persuaded a parliament at Kilkenny to grant £3,000.51 The king's council, however, was in no position to find further large sums of money for Ireland and instead they sent Windsor a message, to be read in parliament, making it clear that military operations must be limited by the amount of money provided locally. With difficulty Windsor obtained agreement to a further subsidy of £2,000 at a parliament that met in unusual and inhospitable surroundings near the seat of war. 52 But the opposition that had been quelled in parliament was transferred to the king's council. As a result, the collection of both these last subsidies, as well as of all other extraordinary charges, was stayed, on orders from England issued on 20 October 1371,83 and Windsor was replaced, though the difficulty of finding a successor delayed his departure until 20 March 1372. The action of the king's council, while it doubtless quieted the opposition, provided no solution to the problems with which they and Ireland were confronted. When Windsor left, the earl of Kildare was made keeper of the land for three months until the arrival of the newly appointed justiciar, Robert Ashton, a former chancellor.54 Ashton's appointment did not proceed from any change of policy. He was, indeed, expected to continue Windsor's work and Windsor's methods, for his indenture not only provided for a force of sixty men-at-arms and a not very productive: in the period from 8 August 1369, when collection commenced, until 20 May 1370, the yield was a little over £.113 (Betham, Early Parliaments of Ireland, p. 311). 50 Parliaments and Councils of Mediaeval

Ireland, i. 42-43. T h e suggestion here

is that the whole of the £.20,000 had been received from England by 7 January 1371, when the Kilkenny parliament met, but this is misleading. Nothing is said of receipts from customs, probably because this grant was not in dispute: we must, however, suppose that this revenue had been expended. 51 Ibid., pp. 43-44. It is to be remarked that the revenue actually realized was not much more than half the estimate. This grant and the grant of £.2,000 next to be mentioned together realized not more than £2,855, and this is the total for w h i c h W i n d s o r accounted (ibid., p. 45: E. 101/30/2; 31/25). 52 Parliaments and Councils of Mediaeval Ireland, i. 43-45; Foedera, III. ii. 9 7 7 - 7 9 ; M. V . Clarke in Proc. R. Irish Acad., xli. C. 87 ( r e p r i n t e d Fourteenth Century Studies, p. 190). 53 Foedera, III. ii. 924-25: r e p e a t e d 12 November, ibid., p. 928. 54

Windsor took ship on 20 March, and the earl was sworn in on the 22nd (Cal.

Rot. Pat. Hib., p. 82, no. 53).

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hundred archers from England, the cost of which fell principally upon the king,55 but stipulated for the engagement locally of eighty hobblers (mounted archers) and two hundred infantry, to be paid from Irish revenues.56 Whatever Ashton's merits, his appointment did not satisfy local opinion, which was in favor neither of an Irish earl nor of an Irish minister as chief governor, and, at a parliament held by Ashton in January 1373, messengers were dispatched to the king's council with two requests; that the earl of March should be required to cross over to safeguard and defend his lands in Meath, Ulster, and Connacht and that there should be sent out as justiciar one of the king's sons or, failing that, Lord Latimer or another English lord.57 The first of these requests it is important to remark, for it affords the clue to the clash of principles that was bedeviling Irish politics. Local opinion, as expressed in the Irish parliament, was that the lords, and especially the earls, of Ireland should safeguard and defend their own lands: if this were effectively done, the country would be at peace and there would be no need to levy extraordinary taxes for Irish wars. This principle lies behind the statutes against absentees58 and it lies behind the quarrel with William of Windsor. English nobles and the English court, on the other hand, had grown used to another principle, enforced by the recurrent wars with France and Scotland, namely, that warfare should be financed by taxation, direct and indirect: and it must be recognized that the financial burden of the Irish wars, certainly since Clarence's expedition, had been borne by the English taxpayer. And while the earl of March was formally commanded to proceed to Ireland as soon as possible,59 he did not appear until May 1380, when he came, not primarily to enforce order in his own lands but as the king's lieutenant.60 It was merely naive to expect that he 55

As justiciar, Ashton was expected to maintain a retinue of twenty men-atarms out of his fee of £ . 5 0 0 and he was, therefore, debited with the cost of this number. 56 P . R . O . , E . 1 0 1 / 3 2 / 2 5 . This account, which contains a copy of Ashton's indenture, dated 8 March 1 3 7 2 , shows that he was in office from 20 June 1 3 7 2 to 2 December 1 3 7 3 . 57 Clarke in Proc. R. Irish Acad.., xli. C . 99, 1 0 7 - 8 (reprinted in Fourteenth Century Studies, pp. 203, 2 1 3 - 1 5 ) : cf. Foedera, III. ii. 990. 58 The problem of absentee lords was troubling the Irish parliament in 1 2 9 7 (Early Statutes Ireland, p. 200) and was unsolved in 1 3 4 2 (ibid., pp. 3 5 2 - 5 4 ) . The principle adopted from the start was that the lands should be defended from the accruing revenues. 59 Foedera, III. ii. 990. 60 He was appointed on 2 2 October 1 3 7 9 (Foedera, iv. 7 2 ) . He landed at Howth on 1 5 May (Annals of St. Mary's Abbey, Dublin, p. 2 8 4 ) .

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would put aside his vast interests in England and Wales and reside on his Irish lands, which could have been to him, at best, but of secondary importance. There was, indeed, great difficulty in persuading any Englishman of note to take up the burden of Irish government. Before the end of 1371 an endeavor had been made to secure a suitable successor to William of Windsor, and Richard of Pembridge had, on the advice of the king's council, been appointed lieutenant. But Pembridge flatly refused to take up office and, as a punishment, was stripped of all the offices and revenues the king had bestowed upon him for his past distinguished services.61 In 1373 there was the same reluctance. The demands of the wars with France and Castile were sufficient obstacle or excuse to prevent acceptance of the lieutenancy by any outstanding noble, and it was only under pressure from the council that Windsor agreed to return to Ireland,82 where he arrived in April 1374.63 Again the king's council undertook to finance, in large part, the force under his command, but great difficulty was experienced in finding the sums promised. The money available from all sources, including the unpaid balances of the subsidies of 1371, now put in collection,84 fell short of what was needed to meet the wages of the troops,85 and Windsor was anxious to be relieved of his ungrateful task. He was ordered to remain in office, the king, for his part, promising to send the money in arrear and any further sums required and also to dispatch special messengers to persuade the Irish parliament to grant a further subsidy.66 Before 61 Cal. Close Rolls, 1369-1374, p. 420. Apparently the grants were restored before Pembridge's death in 1375: see the notice in Dictionary of National Biography. 6 2 Clarke in Proc. R. Irish Acad., xli. C. 108: k graunt peyn et exitacioun du dit conseil (reprinted in Fourteenth Century Studies, p. 214). 6 8 He was appointed by 20 September 1373 (Foedera, III. ii. 990) but the conditions on which he was to go were a matter of argument with the king's council (P.R.O., Ancient Petition 12849). On 13 October he is said to be about to set out (Parliaments and Councils of Mediaeval Ireland, i. 48), and orders for the requisitioning of ships were issued on 26 October (Foedera, III. ii. 992). His troops, or many of them, appear to have arrived about the end of the year (Proc. R. Irish Acad., xli. C. 88-89; reprinted in Fourteenth Century Studies, p. 191). Windsor himself did not arrive until 18 April and was not sworn in until 4 May (Cal. Rot. Pat. Hib., p. 86, no. 19). 64 This was one of the stipulations put forward by Windsor (Ancient Petition, no. 12849): the consequent writ was issued on 20 December (Foedera, HI. ii. 995) and the instructions repeated on 6 March 1374 (ibid., pp. 999-1000). The money seems to have been collected late in 1374 (Clarke in Proc. R. Irish Acad., xli. C. 89-90: reprinted in Fourteenth Century Studies, p. 191). 65 Parliaments and Councils of Mediaeval Ireland, i. 82-86. 66 Ibid., pp. 55-56, 83.

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any messenger arrived, Windsor himself obtained a trifling grant of 400 marks from the counties chiefly threatened by the native Irish, 87 but no further subsidy could be obtained at a later parliament, even with the persuasions of the king's special representative, Nicholas Dagworth, w h o had finally been sent out. 88 A refusal had apparently been anticipated and the king's council had devised the desperate expedient of summoning magnates, commons, and inferior clergy to meet them in London, 8 9 but to no avail. T h e opportunity was seized b y the malcontents in Ireland, perhaps not without encouragement from Windsor's enemies, to embarrass the administration by formulating extravagant charges against Windsor and other members of the Irish council, and it is upon the basis of these charges that a distorted picture has been drawn both of Windsor as a man and of his administration. 70 T h a t the substratum of truth was slender is apparent, though medieval administration was never impeccable and medieval administrators in difficulty were not over-nice in their methods. Windsor obtained the release he sought and other members of the Irish council were discreetly removed. 7 1 B y contemporary standards, however, their Ibid., pp. 55-56. Cal. Patent Rolls, 1374-1377, pp. 117, 120; Foedera, III. ii. 1035; Ayloffe, Ancient Charters, pp. 444-45. 69 Ibid., p. 445. 7 0 There had been previous charges and local investigations before Robert Ashton in May and June 1373 (Foedera, III. ii. 977-80; Clarke in Proc. R. Irish Acad., xli. C. 113-23 [reprinted in Fourteenth Century Studies, pp. 220-32]. These and a petition against Windsor appear to have formed the basis of an inquiry into the financial side of his administration (P.R.O., E. 368/145 [47 Edward III], Trinity Recorda, m. 4), which was still proceeding when he was being pressed to undertake a second term of office (Parliaments and Councils of Mediaeval Ireland, i. 39-48). This inquiry was not pursued at the time, but Windsor and certain ministers were summoned to England in February 1376 in order that they might be with the council on 27 April: the earl of Kildare was to be appointed keeper (Cal. Close Rolls, 1374-1377, p. 295; Lords Reports on the Dignity of a Peer, iv. 667-68). Windsor did not leave Ireland before 21 June (Wood, 'The Office of Chief Governor of Ireland,' Proc. R. Irish Acad., xxxvi. C. 229), but in the meantime he and the principal ministers had been 'indicted' before Robert Ashton, and the rolls containing the charges had already reached England (Cal. Close Rolls, 1374-1377, p. 368). It is these that have been printed by Miss Clarke in Proc. R. Irish Acad., xli. C. 83-102 (reprinted in Fourteenth Century Studies, pp. 184-206): her commentary is to be read with caution. 67 68

7 1 The attempt to bring Windsor to trial failed and he was reemployed early in *377 (Foedera, III. ii. 1075). The implicated ministers were replaced in August 1376. There were some further inquisitions in Dublin in April and May 1378 before Nicholas Dagworth and others, though for what purpose is obscure. The charges, however, reached a further point of absurdity with the allegation that Windsor conspired with Stephen Vale, bishop of Meath, and Robert Holywood,

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conduct was hardly blameworthy and the fault lay, if anywhere, with the administration in England, which could not perform the double task of financing at the same time a Continental war and an Irish war. The latter it was impossible to sustain unless there was peace with France, the condition under which Richard II was to undertake his expeditions to Ireland. And it is an ironic commentary upon the wisdom of the opposition that taxes and customs duties that had been deemed oppressive when granted by parliaments called by William of Windsor were reimposed by a parliament called by the earl of March in 1380.72 So much it is necessary to remark if a clear view is to be obtained of the contemporary Irish parliament. During the period from 1369 to 1376, the sessions were burdened with the problems of waging war and financing it. These problems were brought before parliament by the privy council which, as we have seen, consisted of the principal ministers, with perhaps one or two bishops or magnates who had been sworn of the council.73 The council in parliament had, however, a wider meaning than the privy council, in particular for the consideration of petitions. A petition might be addressed to the justiciar and peers of parliament or, as was more usual, to the justiciar and council or, exceptionally, to the justiciar and council and peers in the present parliament assembled,74 and it is quite clear that these different phrases cover the same body of people. The phrases vary because the coalesence of the chief ministers and magnates to form a single body of peers was a gradual process and the conditions had not yet been completely outlived, under which the ministerial council consulted with the magnates in parliament and the commons were disregarded or summoned only for special and limited purposes.75 And although in matters of taxation lords and commons seem, in formal documents, to act as one body, yet in 1369 there are indications that an older tradition, though challenged, was still strong. For it was alleged that, although the prelates, magnates, and other lieges in parliament were, by a majority, opposed to the grant of new customs duties, certain of the prelates and other chief baron of the exchequer, to obtain a grant of Ireland for life and to quarter himself and his troops on the country without payment. The archbishop of Dublin, the chancellor, and the treasurer were sent to England to bring the allegations before the king's council (E. 3 6 8 / 1 5 7 [8 Richard II], Hilary Recorda, ms. 23, 2 4 ) . 72 Below, pp. 1 1 4 - 1 5 . 73 Above, pp. 3 1 - 3 5 . 74 See Appendix VI. 75 Above, pp. 69-70, 74-76.

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76

persons, assembled in a chamber, agreed to the grant. We must not take this objection too seriously, for it is evident that the real issue was not whether the grant was valid but whether it was to be for three years or in perpetuity and, naturally enough, the opponents of the new duties minimized the importance of those who deliberated apart in a separate chamber. The significance of the facts lies at once in the claim of the whole body of parliament to control taxation and in the existence of a superior body of prelates and magnates consulting privily with the council. These magnates presumably did not include all those who were summoned by separate writ, a numerous body, from whom, as we shall see, a relative few were shortly afterwards separated out to constitute the temporal peers. 77 But though this latter development proceeded unchecked and apparently without opposition, the principle was maintained that the assent of parliament meant the assent of prelates, magnates, and commons. It is they jointly who grant taxes and refuse demands made upon them.78 Moreover, it is they, all together, who set out their grievances and proposals for reform and choose their representatives to discuss them with the king's council in England, though it is to be noted that these representatives might include certain of the principal ministers.79 It is they jointly who put forward a written remonstrance when the lieutenant is absent from parliament. 80 But that the prelates and magnates enjoy a special degree of consideration and that their advice has a higher value would not seem to admit of doubt. The elaborate but, it is to be feared, abortive ordinance for the reform of the state of Ireland, promulgated at Westminster in 1 357> contemplated that the justiciar, in his periodical inquiries into administrative abuses and local dissensions, should associate with himself not only official members of his council but also neighboring prellates and earls or other magnates.81 The same principle is seen when William of Windsor in April 1371 called together the prelates, mag74

Foedera, III. ii. 942. Below, pp. 125-27, 1 3 0 - 3 1 . 78 Parliaments and Councils of Mediaeval Ireland, i. 56-66, 83-84. 79 The chancellor, John Burley, prior of Kilmainham, was selected for such a mission in 1360 (Parliaments and Councils of Mediaeval Ireland, i. 1 9 ) . In 1 3 7 3 another prior of Kilmainham, William Tany, who was also chancellor, was selected, as well as Robert Holywood, the chief baron of the exchequer (Clarke in Proc. R. Irish Acad., xli. 94-95, 99, 107-8: reprinted in Fourteenth Century Studies, pp. 198-99. 203, 2 1 3 - 1 4 ) . 80 Parliaments and Councils of Mediaeval Ireland, i. 120-22. 81 Statutes of the Realm, i. 357, cap. 2. 77

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nates, and some others within reach of Cashel to inform them that the wages of his troops were in arrear and his resources exhausted and to ask them to take counsel together to provide a remedy. From Windsor's own account it is plain that the magnates dominated the meeting and, while they would not take responsibility and recommended that a parliament be summoned, the principle is still evident that the king's lieutenant looked primarily to the magnates for advice.82 Again, when it is said that, at the Trinity parliament of 1375, decisions were taken by the governor and others of the council who made their appearance there—tunc ibidem comparentes—it would seem, from the language employed, that the members of the council must include more than ministers, those magnates, namely, who obeyed the writ of summons.83 But when there is a reference to decisions taken by the council, in consequence of the views expressed by the prelates, magnates, and commons, in the Michaelmas parliament of the same year, it is doubtful whether prelates and magnates are meant to be included among the council.84 Evidently it is not always easy to be certain whom the council in parliament, at any one time or for any particular purpose, includes or excludes. Still it is the council in parliament, to whatever extent it may be afforced, that is the operative body except for those broad political purposes—taxation, the presentation of grievances, legislation—in which gradually the commons came to share. The day-to-day work of parliament is not performed by a large deliberative assembly, but by a smaller, select, dignified gathering, sitting, as in 1369, in a chamber apart.85 This council in parliament is approached, as we have indicated, by petition. In 1355 it had been affirmed (or reaffirmed) by the king that erroneous judgments in Irish courts should be corrected in the Irish parliament,86 and in 1357 he ordered that charters of pardon should not be granted except in parliaments or (great) councils, by the assent and advice of such parliaments and councils87—with no thought, of course, that the commons would participate either in apParliaments and Councils of Mediaeval Ireland, i. 43-44. Ibid., pp. 66-67. 84 Ibid., p. 85. 8 5 Above, pp. 85-86. 86 Foedera, III. i. 312. This was not the position in 1342, when there was no appeal from the justiciar's bench except to the king in England and it was proposed that the Irish council should have jurisdiction ( B . M., Lansdowne MS. 482, fo. 1 3 9 ) . There had apparently been some change of procedure following the reconstitution of the justiciar's bench (above, p. 36, n. 95). 87 Statutes of the Realm, i. 359, cap. 6. 82 83

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pellate jurisdiction or in the exercise of the prerogative of mercy. But it is from surviving petitions and the instruments based upon them that we obtain the greater part of our knowledge of the business transacted in parliament. The most instructive examples are some fifty petitions presented in the Hilary parliament of 1393, which we may notice at this point since no like collection has survived of earlier date. This collection has its limitations, for its purpose is not to record the petitions presented on that occasion but to preserve a note of warrants addressed to the chancery for the preparation of instruments under the great seal.88 Any petition, therefore, which did not give rise to such an instrument would not find a place. There are thus no petitions from the commons as a body, although some may well have been put forward; for we have good reason to suppose that at this parliament a statute was ratified and confirmed which authorized the grant of lands, overrun by the native Irish, to others than their previous owners,89 and we should expect such legislation to be preceded by a formal request of the commons. But with some minor reservations, we may regard the collection as representative and we may believe that it includes the great bulk of the petitions presented at a single parliament. First let us note that ten of them come from nine petitioners who may be described as members of the upper house, those to whom, on the evidence of the lists of 1380 and 1382, we may assume a personal writ of summons to have been addressed. The nine are the archbishops of Armagh 90 and Dublin, 91 the bishops of Leighlin, 92 Ossory,93 and Waterford and Lismore,94 the abbot of St. Thomas, Dublin, 95 the earl of Desmond,96 Patrick de la Freigne, 97 and Robert de la Freigne. 98 We may be certain that the archbishop of Armagh was, as usual, represented by a proctor, while the archbishop of Dublin had left for Eng88

Graves, Roll of King's Council. It follows that it is only by a process of inference that we can separate out the parliamentary petitions (nos. 81-85, 88-136) from those presented to the council on other occasions. 89 Ibid., p. 2 2 1 : Testatut . . . fait pur les terres et seignouries degastés etc. fut ratifié et confermé au parlement darreinement tenu à Kilkenny.' w> No. 82. 9 1 No. 1 1 5 . 92 No. 116. 93 No. 124. 94 Nos. 97, 105. 95 No. 106. 98 No. 1 1 3 . No. 127. 98 No. 123.

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land" and his petition was prosecuted by his attorney. But whether these nine peers were present in person or by proxy, it is significant that so large a proportion of the petitions should have come from those whose duty it was to attend parliament. Another petitioner, we may remark, is Henry Stanyhirst, a chancery clerk, who asks for special remuneration for writing writs of summons and who was doubtless present at parliament in the course of his official duty.100 Perhaps duty also brought some of the other petitioners to parliament, for it seems probable that one petition was presented by the knights of the shire for Waterford on behalf of the county101 and another by the burgesses of Galway.102 W e may perhaps recognize a proctor of the lower clergy in the archdeacon of Glendalough,103 but on this and some other names we can only speculate. More important is the subject-matter of the petitions. A substantial proportion are, as we might expect, petitions for charters of pardon, for which, of course, suitable payment had to be made.104 A number are in other ways connected with the administration of justice. Alan McKinnery, a chaplain, who is accused of divers trespasses, seditions, and felonies, asks to be received into the king's peace. 105 Another petitioner asks that judgment in the common bench may be expedited.106 Two others complain that their lands have been wrongfully seized into the king's hands.107 The bishop of Leighlin urges that his dispute with the bishop of Killaloe over the possession of a township in the latter diocese may be settled in his favor.108 Thomas, a son of the late earl of Ormond, and Nicholas White, who describes himself as a king's serjeant, ask to be appointed commissioners of oyer and terminer in the counties of Cork and Limerick and the cross of Tipperary, which are in a state of lawlessness,109 and on which we have a further sidelight in a petition of John, son of the earl of Desmond, for licence to provide escorts—on payment—to convey those taking provisions to the cities of Cork and Limerick and the town of He is on the point of returning on 23 July (ibid., p. 256). 100 No. 84. 1 0 1 No. 133. 102 No. 1 3 1 . 1 0 3 No. 107. 1 0 4 Nos. 93, 106, 118, 121-23, 125, 128, 129, 135. 10s No. 88. 10« No. 95Nos. 98, 112. 1(J8 No. 116. 1 0 9 No. 100. 99

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Youghal. 110 The archbishop of Dublin complains that the earl of Kildare has unlawfully quartered a hundred kems on his land at Ballymore. 111 The commons of Castledermot have bought off McMurgh with an offer of 84 marks, which they have assessed among themselves, and they seek a commission to enable them to levy the assessed charges. 112 There are many petitions for grace—protections, 113 respite in rendering accounts, 114 rewards for services, 115 payments for supplies, 118 grants of lands in the king's hands, 117 presentation to benefices,118 licences under various statutes such as those against absentees, 119 and the export of wheat, 120 the Statute of Mortmain, 121 and the Statute of Kilkenny. 122 Denis O'Keywan seeks relief from the statute that forbids a native Irishman to hold a benefice, 123 and another native Irishman, Thomas Lynch, petitions for the grant of English status. 124 Roger Francis asks to be discharged from the office of sheriff of Wexford, 128 while the steward of Ulster asks for a renewal of his appointment. 126 The poor tenants of Colmanstown, who are apparently native Irish, pray that their rent may be reduced because much of their land is waste. 127 W e know sufficient of the petitions presented at parliaments in the previous twenty years to be sure that those of 1393 are typical. W e have a good many earlier petitions asking for rewards for services 128 and for various payments, 129 and others for the restoration of land » 0 No. 1 0 9 . " 1 No. 1 1 5 . 112 No. 1 1 4 . 1 1 3 Nos. 8 9 , 9 7 . 1 1 4 No. 1 2 7 . u s Nos. 8 5 , 1 0 4 . 1 1 6 No. 9 2 . 1 « Nos. 8 1 , 8 2 , 9 9 . » 8 Nos. 8 3 , 9 6 . 1 1 9 Nos. 1 2 0 , 1 2 4 . 120 No. 1 x 0 . 1 2 1 Nos. 1 0 8 , 1 3 0 . 1 2 2 Nos. 1 0 5 , 1 0 7 . 1 2 3 No. 1 0 3 . i 2 < No. 1 3 2 . !25 No. 9 4 . 1 2 6 No. 1 1 1 . 1 2 ? No. 1 1 9 . 128 Parliaments and Councils of Mediaeval Ireland, i. 8 1 , 8 8 - 8 9 , 96, 1 1 1 - 1 2 , 1 1 2 - 1 3 . For the letters close, consequent on many such petitions in the parliament at Castledermot in March 1 3 7 8 , see P.R.O., E. 1 0 1 / 2 6 4 / 5 , nos. 4 5 , 8 4 , 9 3 , 9 9 , 1 0 8 , 117, 130, 141, 142. 129 Parliaments and Councils of Mediaeval Ireland, i. 9 1 - 9 3 , 9 4 - 9 5 , 102.

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seized into the king's hands,130 for leave to dig for minerals,131 for assistance in paying compensation for the slaying of an Irish chief, 132 and complaining of tolls unlawfully levied.133 What we miss in 1393 are petitions asking for relief from the obligation to attend parliament134 or for the remission or reduction of fines inflicted for failure to attend.135 The absence of the former is doubtless to be explained by the reduction in the number of writs of personal summons that had taken place in the 1380s:138 the absence of the latter is presumably due to a suspension of the practice of inflicting fines.137 On these two points we shall have more to say. The details we have assembled will give a good idea of the range of business coming before the council in parliament and we need add but a few explanatory remarks. It will have been noticed that a few petitions were presented by native Irishmen in 1393, and this is evidently true also of earlier parliaments.138 Nor was it only the Irish of the land of peace that might make an occasional appearance in parliament. In 1376 Murgh O'Brien appeared before the council to swear to the terms upon which he agreed to leave Leinster in peace. 139 Finally, we may ask why many of these petitions were presented in parliament rather than at other times, for while requests for pardon and for remedy for the delays and errors of the courts of law might, in principle, be reserved for parliament,140 over a wide field the justiciar was competent to act with the advice of the privy council. 141 Now, when a petitioner in 1393 states that he has previously sued before the justiciar and council and has had no reply, and when he addresses his petition to 'the peers in the present parliament assembled,' as well as to the justiciar and council,142 we have a clue. In many cases the justiciar himself was loath to come to a decision in an 1 3 0 Ibid., pp. 77-78; Cartae, Privilegia et Immunitates, p. 75 (petition of archbishop of Dublin). 131 Cal. Ormond Deeds, ii. 140-41. 1 32 Parliaments and Councils of Mediaeval Ireland, i. 99. 133 Hist. MSS. Commission, Tenth Report, App. V, pp. 262-63. 134 Parliaments and Councils of Mediaeval Ireland, i. 78-80, 87-88. 1 3 5 Ibid.,

p p . 70, 72, 86-87, 89-90, 97-98, 1 1 0 - 1 1 , 113-14.

Below, pp. 126-27, 130-31. 1 3 7 Below, p. 141. 138 Deputy Keeper's Report, Ireland, xxxix. 49: grant of reward in parliament to Irish chief for guarding the marches of Wexford; Parliaments and Councils of Mediaeval Ireland, i. 96: petition of Irish chief for reward for services. 139 Ibid., pp. 99-101. 140 As provided in the ordinance of 1357 (above, p. 87). 141 Above, pp. 36-38. 142 Graves, Roll of King's Council, no. 112. 188

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unafforced meeting of the council, while it appears to have been understood that in parliament every petition would be answered. 143 For a petition might well need to be considered by expert advisers before an answer could be framed, and there is good reason to suppose that, as in England, petitions were, in the first instance, 'tried,' or, as the phrase in Ireland seems to have been, 'admitted,' by a small, wellqualified committee before coming, if they came at all, before the full council in parliament. 144 In parliament the members of such a committee could be found, while there was no certainty that they would be in attendance on the justiciar at other times. That is one reason why petitions are reserved for the occasion of a parliament. Another reason appears to be that not only has a petition to be submitted in writing but the case has to be argued either by the petitioner or an attorney acting on his behalf or by some powerful friend or protector. 145 Consequently, those whose duty takes them to parliament may find it more convenient to petition then than to make a special journey to present a petition to the justiciar who is for ever on the move and may have to be sought afar off. If, up to this point, we have spared no more than a few passing references to legislation in parliament in the fourteenth century, it is because legislation took up little parliamentary time. No doubt the few ordinances and statutes that have survived fail to represent fully the legislative activity of parliament, but, whatever has been lost, little of it can have been memorable or can have possessed more than transitory importance. If this aspect of the Irish parliament is in marked contrast to the volume of legislation that proceeded from the English parliament at the same period, the difference is easily explainable. English legislation was, in principle, applicable to Ireland, though the growing practice of founding statutes upon petitions put forward by the commons not only resulted in many ill-drafted and ill-considered measures but related them largely to current grievances in England and so made them inappropriate to Irish needs. 146 There were, how1 4 3 This is implied by the Modus tenendi parliamentum, Irish version, c. i8, and contemporary practice seems to bear it out. 1 4 4 The evidence for this procedure is provided by the documents relating to the afforced council of Kildare in 1385: see below, pp. 107-8. 1 4 5 The archbishop of Dublin appears by attorney in 1393 (Graves, Roll of King's Council, no. 115). The son of the earl of Desmond asks for a pardon for his servant (ibid., no. 122), and the bishop of Ossory intervenes on behalf of another petitioner (ibid., no. 128). 1 4 6 The need for selection was recognized in Ireland as early as 1320 (Early Statutes Ireland, pp. 280-82). A writ of 1332, transmitting four statutes passed in

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ever, exceptional statutes also, framed by the king's council, though approved by the English parliament, that were not suffered to remain dead letters, such as the Statute of Labourers that necessitated the appointment of special justices for the regulation of wages,147 or the ordinance (or Statute) of the Staple of 1353 that regulated trade.148 Again, the king could, of his own motion, after taking such counsel as he deemed expedient, legislate specifically for Ireland, as witness the ordinance de statu terre Hibemie of 1323,149 the Ordinance of the Staple of 1326,150 the ordinance made in the Westminster parliament of 1331,151 another elaborate ordinance, de statu terre Hibernie, made in 1357,152 followed in 1361 by an ordinance regulating Irish finances.168 We should notice that an ordinance of 1368, which endeavored to deal with the problem of absentee lords of Irish lands who did not provide for their defense, was promulgated after the matter had been debated in the Irish parliament,154 while the first effective legislation on the subject, the so-called Statute of Absentees, was the result of a 'message' from Ireland presented in the Westminster parliament of 1380.156 Messages to the king from Ireland did not frequently result in legislation: as a rule the action demanded was administrative or executive.166 Nevertheless, they did correspond quite closely to the common petitions that were presented to the king in the English parliaEdward Ill's parliaments, suggests that this need was recognized also in England (Statutes of the Realm, i. 269). 147 The ordinance of 1349 was first applied to Ireland (Early Statutes Ireland, pp. 366-70), but this was followed by the statute of 1351 {ibid,., p. 388). F e w details of the administration of the statute in Ireland are known, but for the appointment of special justices, see ibid., pp. 464-66, 490; Parliaments and Councils of Mediaeval Ireland, i. 53-54148 This applied specifically to Ireland as well as to England and Wales (Statutes of the Realm, i. 332), though there appears to be no evidence of the manner in which it was enforced until the ordinance of 1357 refers to the excesses of mayors, constables, and other ministers of the staple in Ireland (ibid., p. 360). 149 Statutes of the Realm, i. 193-94; Foedera, II. i. 538-39. 150 Early Statutes Ireland, pp. 314-20; Cal. Patent Rolls, 1324-1327, p. 269. 151 Early Statutes Ireland, pp. 322-28; Foedera, II. ii. 812. 152 Statutes of the Realm, i. 357-64. 153 Early Statutes Ireland, pp. 422-28; Foedera, III. ii. 606. 154 Ibid., pp. 854-55. 155 Rot. Pari. iii. 85-86: see also Parliaments and Councils of Mediaeval Ireland, i. 205-6. 156 For examples, see above, pp. 76-77, 86. A pertinent example, from 1380, is P.R.O., C. 49/9/12, which is headed: 'Ces sount les articles des peticions des seignurs et comuns d'Irlande dount l'execucioun est ordené d'estre fait par briefs et patentes du graunt seal en manere q'ensuit. . .

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ment, which likewise did not necessarily call for legislation. 157 The contrast, therefore, between the legislative activity of the English parliament and the legislative inactivity of the Irish parliament is, at least under E d w a r d III, to some extent illusory. T h e presentation of grievances or of abuses calling for remedy was common to both parliaments, though in England this function had fallen upon the commons, while in Ireland, if the king was addressed, lords and commons were associated with the message. T h e immediate and direct duty of the king to insure his peace or, as w e should say, firm and just administration, the obligation he was under to b e personally accessible to every one of his subjects, a burden he could not, even if he would, cast upon any representative or delegate, inevitably tended to centralize responsibility in the king's council in England. T h e liability of every Irish justiciar or lieutenant, of every prominent minister, to answer in England for any alleged misdeeds may have been salutary, but it was not conducive to strong and resolute government. Not only the Irish council but those w h o attended Irish parliaments tended to look to England for guidance and relief. It is not surprising, therefore, that there is only one notable piece of Irish legislation in the fourteenth century, the Statute of Kilkenny. T h e statute itself belongs to 1366, 158 but it was largely anticipated by ordinances promulgated at a great council in 1351. 1 5 9 T h e statute contains a number of miscellaneous provisions and is not well ordered, but its main purpose is, as the preamble states, the good government of the land, the quiet of the people and the better observance of the laws. The most striking provisions of the statute are those that sought to regulate the relations of the Anglo-Irish to the native Irish and to uphold the purity of English culture by preventing its permeation by Irish customs. 160 These were the provisions that commended the statute to later generations and insured for it repeated confirmations and a permanence unusual to Irish legislation. But if the statute sought to circumvent the aggression of the 'wild' Irish, as Englishmen regarded them, it sought also to restrain English lawbreakers, 1 6 1 to curb the rapacity and negligence of inferior ministers, and to mitigate administrative oppression. 162 There was nothing that was new in the policy 1ST 168 159

160 161 162

Richardson and Sayles, The Early Statutes, pp. 16-34. Early Statutes Ireland, pp. 430-68. Ibid., pp. 374-96.

Caps. 2-4, 12-15, *9> 2 l Caps. 27-30. Caps. 16, 22, 25, 31-33.

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underlying the statute and little in its specific requirements, but—if we may apply such a description to so disorderly a compilationit codified in thirty-five chapters163 rules that had either been previously enacted or that were generally accepted as necessary for the peace and prosperity of the land. Compared with the Statute of Kilkenny and the anticipatory ordinances of 1351, the other examples of legislation surviving from the fourteenth century are minor and unambitious, though they may enunciate important principles. Typical of such legislation is that passed at the parliament at Kilkenny in 1310 for the preservation of the peace and the punishment of offenders who evaded justice.164 Specific provisions relate to the abuse by great men of what later will be known as coign and livery, the maintenance of armed retainers or 'idlemen,' the harboring and aiding of felons and rebels, the exclusion of native Irish from religious houses in English districts, the appointment of justices of assize and gaol delivery. In 1316 a more drastic ordinance sanctioned the slaying of idlemen who refused to surrender to justice,165 and in the same year we have the beginning of the legislation for confiscating the revenues of the lands of absentees, though at first aliens alone are made subject to this penalty.166 In 1320 a parliament at Dublin covers much the same ground as the parliament at Kilkenny in 1310, but some new provisions are introduced dealing with the misdeeds of ministers, pleas in the exchequer, and the pursuit of offenders who flee over the borders of counties and franchises. Various English statutes are confirmed, and there is a repetition of the attempt to enforce by legislation uniformity of weights and measures throughout Ireland.167 These ordinances are confirmed in 1324, 188 and this confirmation is itself confirmed in 1325 as well as the legislation of 1310 and 1320. 169 Only two additional provisions were introduced in 1325, one directing that magnates who failed to punish their own followers should be fined, 1 6 3 The concluding chapter (cap. 36) recites that sentence of excommunication had been pronounced against any contravening the statute. 184 Early Statutes Ireland, pp. 264-76. i« 5 P.R.O., Dublin, Cal. Justiciary Rolls, Edward II: roll no. 114, m. 3. The date is indicated by the heading of the membrane, 'Castledermot, Thursday after St. Peter ad Vincula, 10 Edward II,' and the reference to the recent parliament at Dublin. 166 Early Statutes Ireland, p. 278. It is not certain that this legislation was passed on the same occasion. 167 Ibid., pp. 280-90. 168 Ibid., p. 306. 169 Ibid., pp. 310-12.

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and the other prohibiting the bearing of arms at parliaments and requiring that armed followers should be kept outside the town where a parliament was held. It will be seen that the legislation of the reign of Edward II covers much the same field as the Statute of Kilkenny, and there is no evidence that any legislation under Edward III went materially beyond its scope. We shall see, too, that legislation under Richard II added little to the content of the legislation of previous reigns.170 The king is the sole legislator and in principle he so remains until the end of the Middle Ages, but before he legislates he takes counsel, which, if at one time a voluntary act, at the period with which we are treating has become obligatory, and, moreover, since the king cannot legislate in a sense contrary to the counsel he receives, this counsel merges into assent. Consequently, it is important to know who are called upon to counsel the king in the person of the justiciar, who is, for this purpose, his alter ego. We can illustrate the process of legislation in all its aspects from the documents concerning the ordinances or statutes—the terms are convertible—passed at the parliament that met at Kilkenny on the octave of Candlemas in 1310. This parliament was the occasion for an unusually large attendance, doubtless because the business to be transacted was itself unusual. Individual writs were addressed to more than a hundred prelates, earls, barons, and others, and there were summoned as well two knights from every county and two citizens or burgesses from every city or borough.171 To this assembly the justiciar and council submitted a program of legislation,172 and a small committee was appointed to prepare the necessary draft, which, it can hardly be doubted, was largely the work of the council itself. The assembly gave assent to the ordinances in their final form, 173 but it so happened that one article, regulating the appointment of sheriffs, had been overlooked, and this the justiciar and council proceeded to promulgate.174 In itself this incident would suggest that the final approval given in parliament was a formality, and the fate of another article more than confirms this impression. The ordinances, as we have already said, included one that excluded native Irish from religious houses in English districts.175 When this ordinance came to 171

172

Below, pp. 146-48. Below, pp. 129-30.

Early Statutes Ireland, p. 262. Ibid., p. 264. »4 ibid., p. 276. i" Ibid., p. 272.

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the notice of the archbishop of Armagh (who would not, of course, have attended in person a parliament in the province of Dublin), he and his official protested, saying that it would do more harm than good. Thereupon, at the request of certain magnates who were consulted, the justiciar revoked the 'statute,' leaving the law as it previously stood. It is noteworthy that, in the letters patent which announce this decision, it is stated that the statute was enacted by the advice of the council and divers magnates in parliament; nothing is said which implies that the assent of the popular representatives was necessary or, indeed, that of the crowd of lesser men who had been summoned personally.170 As under Edward I, it is the hauts hommes whose counsel is necessary when laws are made or unmade, nor is it yet essential that new law should be unmade in parliament. A later petition from 'the religious of Ireland,' referring to this incident, asserts that the statute was unmade ( d e f a i t ) by all the magnates of the land with the assent of the justiciar.177 If this assertion is not literally true, it shows, nevertheless, how far men's minds were from the conception of parliamentary sovereignty and how dominant was the conception that the business of government was a matter for the great and for the king's representative. 176 w e gi v e the text of the letters patent from Trans. Kilkenny Archaeological Soc., I, 509, but with the gaps supplied: Rex omnibus [ad quos presentes littere] peruenerint, salutem. Licet de consilio nostro Hibernie et diuersorum magna turn eiusdem terre in parliamento nostro apud [Kilkenniam certis] ex causis statuimus quod nullus merus Hibemicus admittatur in religione inter Anglicos in terra pacis in a[liquibus] partibus Hibernie propter discordias sepius motas inter huiusmodi Anglicos et Hibernicos, credentes ex hoc maiorem tranquillitatem et pacem in sancta Dei ecclesia et populo Christi fidelium posse futuris temporibus euenire, et iam accepimus ex testimonio venerabilis patris fratris Walteri, Dei gracia archiepiscopi Ardmacani, et discreti viri, magistri Philippi de Erdesleye, predicti patris officialis, quod predictum statutum sancte Dei ecclesie et populo pacis nullum crescet emolumentum set maius dampnum, odium et discordiam, nos, ad sectam et testimonium predictorum archiepiscopi et officialis et rogatum aliquorum magnatum terre predicte, statutum reuocamus supradictum et concedimus quod tam Anglici quam Hibernici et alii de quacumque nacione, qui diuina gracia inspirati sub regulari habitu cupiunt Deo famulari, in quacumque domo religiosorum infra terram predictam ad religiosum habitum admittantur [sicut ante] predictum statutum fieri consueuit. In cuius etc. Teste Iohanne Wogan, iusticiaro nostro Hibernie, apud Dubliniam xxii. die Maii anno regni nostro tercio. It may be remarked that the implication is that the statute was contrary to the king's coronation oath, by which he promised 'ut ecclesia Dei et omnis populus Christianus veram pacem nostro arbitrio in omni tempore seruet,' these words, which are plainly echoed, being the traditional formula before the oath was remodeled in 1308. 177 Trans. Kilkenny Archaeological Soc., i. 510.

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W e have already seen the representatives of the commons playing the same role of passive assent in 1324, 1 7 8 nor is there reason to suppose that they were more than passive when ordinances were enacted in 1 3 2 0 before the justiciar and council and the other magnates of Ireland, although these ordinances received the assent of tote la communalte,179 Again, when in 1328 the newly-appointed justiciar, John Darcy, recommended to the king's council in England a proposal that the native Irish should be granted freedom to live under English law without the necessity of purchasing charters, he was told to test the feeling of the grauntz at the next parliament. 1 8 0 But gradually, and doubtless as representatives of the commons were more frequently summoned, they came to play a rather more active part in legislation. Thus the ordinances of 1 3 5 1 purported to be based upon the grievous plaints of the commons summoned to two great councils in that year, 1 8 1 and the Statute of Kilkenny of 1366, which is based upon the legislation of 1 3 5 1 and employs similar formulas, also purports to be based upon the plaints of the commons, 182 while a chapter newly introduced on this occasion appears, from its opening words, to be based upon a separate petition put forward by the commons. 1 8 3 It may be that the Irish commons had not yet adopted the practice of the English commons of putting forward in each parliament to which they were summoned a series of petitions asking for the redress of specific grievances, but there would seem to be no question that, by about the middle of the fourteenth century, legislation in Ireland was normally introduced, on the English model, by means of a petition presented by the commons. This petition was not necessarily a spontaneous act upon their part, and the procedure may have been a convenient means of obtaining their assent to legislation desired by the council or by the magnates, but it determined the pattern upon which the Irish parliament would be permanently molded, even if it did not mark, and never marked, the passing of the initiative, of political power, to the commons. W e have already mentioned, in passing, those afforced meetings of the council, sometimes called general or great councils, at which busi178

Above, p. 74. Early Statutes Ireland, p. 280. Baldwin, King's Council, p. 474; Cal. Close Rolls, 1327-1330, p. 312. 181 Early Statutes Ireland, pp. 374-76. 182 Ibid., p. 430. 183 'Item, pur ceo qe les communes de la terre se pleinent. . . .' (Ibid., p. 464: cap. 34). 179

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ness was transacted that might have found a place on the agenda of a parliament, and it is desirable that more should be said in detail of these councils. But before we do so, it may be well to have before us a clear picture of parliament as it had developed in the last three decades of the fourteenth century. We have seen that the core of parliament is the privy council, mainly composed of the principal ministers, and that this council is afforced by the prelates and lords, whose numbers are being reduced in the 1370's by the application of stricter rules governing the issue of writs of personal summons. In this way a peerage is being constituted, which forms a deliberative and judicial assembly and is, in all but name, a house of lords. By this process the commons, that is, the representatives of counties and towns, who are now being regularly summoned to parliament, are excluded from the council. They are, however, consulted on proposals for extraordinary taxation and on messages addressed to the king. They may also make representations or petitions on matters requiring administrative remedies or legislation. Parallel to the commons are the proctors representing the lower clergy who, in the 1370's, are beginning to be summoned with some regularity to parliament, apparently solely in order to obtain their assent to taxation. Taxation, messages to the king, legislation are matters for parliament as a whole, and this unity of action occasionally extends to some minor matters.184 Upon these occasions we must picture the justiciar presiding, surrounded by the principal ministers, the spiritual and temporal peers, perhaps also the proctors of those who are unable to attend in person. All those comprising the council in parliament—the house of lords of the futureare seated. In the midst there will be some chancery clerks to order the business and do such writing as may be necessary. A bar separates the council from the commons and at this bar the commons stand. The proctors of the lower clergy may be there also, but of this we have no knowledge and no real ground for inference. For this sketch of the outward appearance of parliament on those occasions when all its elements were assembled for formal business, we can cite little or no contemporary authority. We have drawn, as will appear,185 upon what 1 8 4 For example, when the exchequer was removed from Dublin to Carlow, this was 'de comuni consensu et volúntate prelatorum, magnatum et procerum ac tocius communitatis terre Hibernie' (Parliaments and Councils of Mediaeval Ireland, i. 9 1 ) . Again, the commons were associated with the prelates and magnates in reducing the fine inflicted on a knight of the shire who absented himself from parliament (ibid., p. 114). 1 8 0 Below, pp. igo-92.

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we learn of parliament in the fifteenth century and upon what seems worthy of credence in the untrustworthy Modus tenendi jmrliamentum. The inference that in all externals the parliaments of the late fourteenth century resembled the parliaments of the following century is justified because manifestly the later and the earlier approximate in composition and function. The rate of change in all that concerns parliament between the reign of Edward I and the reign of Richard II was relatively rapid, but thereafter changes came slowly, and probably in forms and procedure they were so slow as to be hardly perceptible in any man's lifetime.

7 AFFORCED COUNCILS

E MAY approach the problem of the afforced council by taking as our starting point the ordinance made by the king in 1357.1 This laid down that Irish public affairs of difficulty and special importance2 were to be discussed and settled, according to justice, law, custom, and reason, in councils and parliaments. Evidently, in such a context, consilia does not mean merely meetings of the privy council, for while both at these councils and at parliaments the king's learned counsellors (periti consiliarii) were to be present, in the councils these counsellors were to be assisted by the prelates, great men (magnates) and certain of the more discreet and worthy men of the district, but in the parliaments they were to be assisted by the prelates, nobles (proceres) and others of the land, as custom required. It seems clear that the distinction the draftsman of this ordinance had in mind was that parliaments were constituted upon a national basis and that afforced councils were something less than this, assemblies which would be afforced by men of much the same status as those liable to summons to parliament, who lived sufficiently near the place of the meeting to make attendance no great hardship. We must not conceive of any very precise qualification limiting summons to men of a particular rank or estate. The use of the word magnates, as opposed to proceres, suggests that there might be summoned to councils less dignified people than it was customary to summon to parliament: but no hard and fast line was yet drawn, and on occasion the number of landowners summoned to parliament might be large and the standing of many of them, therefore, not very exalted. Here we seem to have a practical working distinction between afforced councils and parliaments, and it is a distinction that will often hold good. But afforced councils had already been, and were in future to be, summoned which in composition seem to be barely distinguishable from parliaments and were, in fact, sometimes confused with parliaments by contemporaries. Thus an assembly at Kilkenny in 1346 is termed a

W

1 2

Statutes of the Realm, i. 357-64: above, pp. 86-87. Thus: 'nostra et ipsius terre negocia presertim maiora et ardua.'

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tractatus in the records and a parliament in an account roll of Holy Trinity Priory, Dublin,4 and we even find the treasurer and the lieutenant, after two years' interval, speaking of the great council at Dublin of 1370 as a parliament.5 Let us give some details of afforced councils before and after 1357. The tractatus of 1346 was attended by representatives of the commons as well as by magnates.6 To two similar assemblies that met at Dublin on 17 October 1351 and at Kilkenny on the 31st of the same month, the name of great council is given.7 These three meetings appear to have included representatives (though not necessarily elected representatives ) from all those parts of Ireland that were effectively administered in the king's name. On the other hand, a council was summoned to meet at Naas in 1355 at which, so far as our knowledge goes, there were present, besides ministers, only the bishop of Kildare and certain of the principal clergy of the diocese.s Evidently, therefore, before 1357 there was a tradition of afforced councils which might include either a small number of locally important people or such numbers of prelates, magnates and popular representatives as might equally be found at one of the more numerously attended parliaments of the period. During the rest of the fourteenth century the more usual type of afforced council was, it seems clear, one that was not constituted upon what we have called a national basis, a convocatio totius terre,9 but upon a local basis, although the area and personnel covered by the writs of summons seem to have been determined arbitrarily on each several occasion and certainly upon no principle that can now be discerned. Some examples will show how diversely constituted such councils might be. In 1359 two councils were called, one to meet at Dublin on 1 April and the other at Waterford on 8 April, the former 3 Cal. Rot. Pat. Hib., p. 53, no. 81; Harris Collectanea, ii. fo. 208-9 (from a plea roll of 21 Edward III); P.R.O., Dublin, Cal. Memoranda Rolls, xxv. 15 (from Memoranda Roll, 25-26 Edward III, m. 7). 4 Account Roll of the Priory of Holy Trinity, Dublin (R. Soc. of Antiquaries of Ireland), pp. 1 1 1 , 118. 5 Parliaments and Councils of Mediaeval Ireland, i. 40, 42. 6 The memoranda roll, cited above, states that the subsidy on this occasion was granted 'per viros religiosos et magnates et totam communitatem Hibemie' and the plea roll states that the grant was by 'quidam magnates et communitates terre Hibernie.' 7 Early Statutes Ireland, pp. 374-76. 8 Parliaments and Councils of Mediaeval Ireland, i. 17-18. 9 For this phrase, see ibid., p. 119.

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for the northern portion of the country and the latter for the southern. Besides prelates and magnates, there were summoned two elected representatives from each of the counties and franchises concerned and from selected towns.10 In August of the same year another council met at Dublin for the affairs of Leinster: this council included prelates and magnates (the chancellor of the franchise of Trim among them), the chief officers and four representatives of Dublin and of Drogheda, and six knights from each of the counties of Dublin, Kildare, Louth, and Meath. 11 In 1372 there were summoned to a council at Dublin seven prelates and two earls by personal writs, a proctor to represent the lower clergy of each of the dioceses of Dublin, Armagh, Meath, and Kildare, and a large number of knights and others by writs addressed to the sheriffs of Dublin, Meath, Louth, and Kildare and, over and above this, two representatives from each of the counties, as well as six burgesses from Drogheda, and the twenty-four city councillors and two elected citizens from Dublin.12 Another council at Dublin in 1374 was constituted upon a variant plan: personal writs were sent to eleven prelates, the archdeacon of Meath, the earl of Kildare, and many other magnates, while four knights were to be elected for each of five counties, and two burgesses for each of three towns.13 Finally, let us notice two councils of 1394 and 1395, both held at Kilkenny. To the former council there were summoned the bishops of Meath, Kildare, and Leighlin, the earl of Kildare, the prior of the Hospitallers, the steward of the franchise of Meath, Thomas fitz Eustace, the mayor of Dublin, the sheriffs of Kildare and Carlow, and three named knights.14 To the latter council there were summoned four bishops, three earls, and two representatives of each of five towns.15 These half-dozen examples are sufficient to bring home the diversity of method—we might, indeed, say caprice— behind the issue of writs for afforced councils. The urgency of the occasion will explain the composition of some hastily summoned councils, such as that in January 1382 at Cork, when it was necessary to 10

Lynch, Legal Institutions, pp. 3 1 5 - 1 7 . Ibid., pp. 3 1 7 - 1 8 . W e use the word 'county' loosely. The Irish chancery did not, in fact, distinguish at all consistently between county and franchise. It will be noticed that the later Pale is already beginning to emerge as a recognizable administrative unit. 12 Ibid., pp. 3 1 8 - 2 1 . 13 Lynch, Prescriptive Baronies, pp. 53-55. 14 Lynch, Legal Institutions, pp. 3 3 1 - 3 2 : some omissions are supplied by Cal. Rot. Pat. Hib., p. 1 5 1 , no. 23. 15 Lynch, Legal Institutions, p. 333. 11

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find a justiciar to carry on the government and military operations in place of the earl of March, who had died suddenly,16 or as that in October 1392 at Castledermot, when the earl of Ormond, having received the patent of his appointment as justiciar, was anxious to complete the formalities of admission to office and to take counsel on the tasks confronting him.17 In the former case the meeting was attended by the neighboring bishops or their proctors, the earls of Ormond and Desmond, the mayor and two citizens from Cork, two knights from each of the counties of Cork and Limerick, and 'very many other nobles and commons'; in the latter case the chancellor summoned the leading men (meillours homes) of the neighboring counties and cities. In an emergency, one cannot consult precedent: there must needs be improvisation. But it is hard to understand why no rules were devised in the fourteenth century for the constitution of afforced councils, summoned so frequently under no compelling urgency. Some of the assemblies of which we have spoken were known as great or general councils, and we may inquire whether they were distinguished from other afforced councils either in composition or function. The point will be of interest when we consider the place occupied by great councils in fifteenth-century Ireland. In the second half of the fourteenth century we know of nine councils qualified as 'great' and one as 'general.' The two 'great' councils of 1351, which we have already mentioned, were attended by prelates, earls, barons, and commons, though we do not know by what method the commons were represented.18 Commons were also present, with prelates and peers,' at the 'general' council at Kilkenny in 1360, but again we are ignorant of the method of representation.19 Of the 'great' council at Dublin in 1370 we can only infer that the writs of summons, of which one example survives, resembled those used for summoning parliament at the period and, therefore, that the commons were summoned as well as the prelates and magnates.20 The 'great' council at Ballydoyle in 1371 was attended only by prelates, magnates, and 'others' of the locality, and we may assume that the 'others' were not elected representatives.21 The composition of the 'great' councils that met at Dublin 16

Parliaments and Councils of Mediaeval Ireland, i. 115-20. Graves, Roll of King's Council, pp. xvi-xvii, 42-43. 18 Early Statutes Ireland, pp. 374-76. 19 Parliaments and Councils of Mediaeval Ireland, i. 21-22. 20 Ibid., pp. 31-36. -1 Ibid., pp. 38-3917

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in 1372 and 1374 we have already described. The 'great' council at Clonmel in 1381 was attended by prelates and magnates and also, it would appear, by representatives of the commons and lower clergy from seven counties.22 At a 'great' council at Dublin in 1385 there were prelates, nobles, magnates (maiores) and commons.23 The 'great' council at Kilkenny in 1394 is again one of those described above. But although all these ten councils are described in contemporary documents as 'great' or 'general,' it is sufficiently clear that these adjectives are not words of art. Thus the Dublin council of 1385 is termed 'great' in two documents and not in another.24 Nor is it easy to understand why, so far as existing documents show, the Kilkenny council of 1395 was not qualified as 'great'—especially since it seems to have been summoned as an alternative to parliament—whereas the Kilkenny council of 1394 was so described. There are other councils, too, such as that at Kildare in July 1385, of which we have more to say, that might well have been termed great but apparently were not. We must conclude that there was no rule and that, while a broadly representative afforced council was likely to be called a 'great' council by some clerks, it might not be in any way qualified by others, and consequently that a 'great' council had no constitution or special functions peculiar to itself. At the same time, if there are a number of prelates and magnates present at an afforced council, we may expect important business to be transacted and, if there is a substantial representation of commons, we shall expect some of the functions characteristic of parliament to be discharged. Let us then consider the functions of afforced councils. Afforced councils may be summoned to obtain a more weighty and public backing than a purely ministerial council could give. Some act has to be performed that must not be done in a hole in the corner, or in a manner that may seem secretive. The light of day is required. In this way we can explain the council of 1392, at which the earl of Ormond was admitted to office. When decisions of substance had to be taken, a council summoned on a local basis might well shrink from accepting responsibility. This is well seen at the 'great' council at Ballydoyle in 1371. William of Windsor was at the end of his resources 22

Cai. Rot. Pat. Hib., pp. 113-14, nos. 166-83. Early Statutes Ireland, pp. 482-86. All three are from the Irish close roll of 9 Richard II and are printed in Early Statutes Ireland, pp. 482-86. There is some difficulty in reconciling the dates given to the council, but evidently the same assembly is meant. 23

24

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and could not pay his troops, who were in actual want. Deeming it to be his duty to remain with them, he summoned the prelates and magnates and some others who were near at hand to meet him at a small village some distance from Cashel. There he exposed the situation and was told by the prelates and magnates that they were unwilling to offer any advice unless a parliament was called to which the prelates, magnates, and commons of Ireland were summoned.25 A very similar situation arose in 1382. Two problems called for solution, the election of a governor and the provision of troops, for the sudden death of the earl of March on 26 December 1381 had not only left the office of lieutenant void but had left the government without an army. Within a week the earl's household and his whole 'retinue' of men-at-arms and archers had taken their departure. There was, however, a possibility that Thomas Mortimer, upon whom the earl had himself chiefly relied,28 would agree to take the earl's place as commander and reenlist the dispersed retinue if he could be assured that the cost would be met; but this cost the ordinary revenues of the country could not sustain. The prelates and the magnates present were therefore asked whether they would assume responsibility for meeting the charges for a year or part of a year. After consulting together they and the commons in attendance declined any such responsibility and instead advised the summoning of a 'convocation' of the whole land, that is, either a parliament or a great council. Until the meeting of this parliament or great council, the chancellor, John Colton, was chosen to act as justiciar, and meanwhile the treasurer was to continue negotiations with Thomas Mortimer. 27 The conclusions here enunciated are important. Not only is a contrast drawn between the authority of a local and unrepresentative assembly and that of a national and representative assembly, but parliaments and great councils are, at least for certain purposes, regarded as equivalent. This is no new idea. In May 1368 a parliament had met at Dublin where the prelates, magnates, and other lieges de25

Parliaments and Councils of Mediaeval Ireland, i. 38, 43-44. He was apparently the earl's half-brother (Adam of Usk, Chronicon, p. 19) and had been knighted and provided for by the earl (Cal. Close Rolls, 13811385, p. 2 7 6 ) . 27 Parliaments and Councils of Mediaeval Ireland, i. 1 1 7 - 2 0 . The outcome of the negotiations was an arrangement whereby Mortimer acted on behalf of the infant lieutenant, Roger, the late earl's heir, who had been appointed to succeed his father on 24 January (Cal. Patent Rolls, 1381-1385, p. 8 8 ) , followed by his appointment on 3 March as chief justice of the justiciar's bench and deputy lieutenant, with a salary of 200 marks (Cal. Rot. Pat. Hib., p. 1 1 2 , nos. 90, 93; p. 1 1 7 , no. 64). 28

AFFORCED

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107

cided to make representations to the king that owners of Irish lands who were absent in England should be required to come to Ireland and take part in its defense. The king's council drafted ordinances to give effect to this proposal and sent the draft to the Irish privy council with instructions that a parliament or great council should be convened at which the prelates, magnates, and other lieges should be asked whether the draft fully and sufficiently carried out their intention, to point out defects, and also to furnish details of lands in absentee ownership.28 The functions that, it was contemplated, a great council might discharge included, therefore, legislation or something akin thereto, and we may recall that the 'statute' of Kilkenny—in the document itself termed ordinances et articles—which was enacted in a parliament in 1366, in large measure repeated the ordinances enacted at a great council at Kilkenny in 1351. 29 Then again, representations on the state of the country and the remedies to be applied, addressed to the king—the 'messages' of which we have already spoken30—might as well be prepared in a great council as in parliament. Instances are provided by the 'general' council at Kilkenny in 1360s1 and in the councils (which seem to have been qualified as 'great') held at Dublin and Kilkenny in 1385.32 Not only legislation and messages to the king but, as we shall see, taxation, lay within the competence of great councils,33 and a great council might be the occasion for judicial proceedings before the justiciar.34 Another function, which might seem to be peculiar to parliament, was discharged at a council at Kildare in July 1385: the systematic hearing of petitions. Indeed, the details set down in this connection provide welcome light on the procedure which we may assume to have been adopted equally at parliaments of the period. The reason for so much detail is presumably because Philip Courtenay, the king's lieutenant, was unable to preside and appointed the chancellor, the bishop of Lismore, and the earls of Desmond and Ormond to take his place. Another commission, consisting of the chancellor, the chief justice of the king's bench, and one of the king's serjeants-at-law, was appointed to admit' the petitions presented and to treat with petitioners who sought charters of pardon. 28 29 30 31 32 33 34

Foedera, III, ii. 853-55: above, p. 93. Early Statutes Ireland, pp. 374-96, 430-68: above, pp. 94-95. Above, pp. 76-77, 86, 93. Parliaments and Councils of Mediaeval Ireland, i. 19-22. Early Statutes Ireland, pp. 484-86. Below, pp. 112-14. Parliaments and Councils of Mediaeval Ireland, i. 125-27.

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To 'admit' a petition is undoubtedly the equivalent of the terms to try' or to "hear' petitions, which are those used in England, and these commissioners would there have been called triers or auditors. They would have before them the petitions that had been 'exhibited' (that is, we take it, presented to a clerk designated for the purpose); they would hear the petitioner's case; and their decision would be endorsed upon the petition.35 Doubtless, on this occasion, they would agree with petitioners who sought charters of pardon the appropriate fine to be paid; but in this respect their powers may have been exceptional. It is to be supposed that in difficult cases a final answer to a petition might be deferred for a full meeting of ministers and magnates or for the lieutenant. How far this council resembled a parliament of the period in other ways we are unable to say; and although prelates, magnates, and ministers were evidently present, there is nothing to show that representatives of the commons were also summoned. It is to be presumed that, when representatives of the commons were summoned to a great council, the procedure resembled that followed at a parliament, as we have already described it, with the commons meeting apart, or, at formal meetings of the whole assembly, standing without the bar. But at smaller afforced councils, summoned upon a local basis, a different arrangement was likely to be followed. Let us refer again to the graphic description of the council that met at Cork in January 1382 to deal with the emergency created by the death of the earl of March. On Thursday, 9 January, all those summoned, together with the members of the privy council and a number of local notables, met in St. Peter's Church. The chancellor, as spokesman for the privy council, explained the situation and how the withdrawal of the earl's household and hired troops had left Munster open to attack. He asked, therefore, that the prelates, magnates, and commons would make provision to meet the threat so that it might be possible for a governor or justiciar to be elected who would willingly take office. The members of the privy council then withdrew. "Hie others deliberated and, on the return of the privy counsellors, stated their conclusion that a governor should first be elected and that the rule and governance of the land should afterward be discussed. A general argument ensued that lasted till nightfall. When the privy counsellors met the prelates, magnates, and commons on the following day, these had evidently deliberated further together, for they gave their opinion that a parliament or great council should be called to 35

Cal. Rot. Pat. Hib., p. 1 2 3 , nos. 1 - 2 .

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make provision for paying the necessary troops and that, since the land could not be left without a governor or justiciar in the interval, there should be an immediate election.36 Here, it will be seen, the procedure resembled that of parliaments earlier in the century, before the privy council had coalesced with the magnates to form the council in parliament. While it is easy to understand why an afforced council, such as that just described, should be hastily summoned in an emergency, it is not so readily apparent why, after the parliaments that included popular representation had become an established institution, it should be thought desirable to summon great councils of similar composition and function and sometimes to summon a great council as an alternative to a parliament, as, for example, Richard II did in 1395. 37 Since relatively few writs of summons have survived, we cannot speak with certainty, but it seems likely that there was less formality in the choice of representatives of the commons at great councils and perhaps that distant counties and towns were spared the formalities of election. Certainly all our evidence suggests that, while the traditional period of forty days was always allowed for summoning a parliament, very much less notice was given of an afforced council. Thus, in the case of eleven parliaments between 1366 and 1382, which there is no reason to suppose were other than typical, the period of summons was invariably more than forty days, ranging from forty-two days in 1369 to sixty-one days in 1375. 38 On the other hand, the period of summons to an afforced council in the second half of the fourteenth century was, so far as our information goes, never more than three weeks and might be as little as one week or even less. Thus, in 1359, the writs for the councils meeting on 1 and 8 April were dated 18 March and those for the council meeting on 5 August were dated 28 July; 39 a council meeting on 2 January 1370 was summoned by writ dated 29 December;40 in 1372 a council meeting on 25 February was summoned on the 15th of the month;41 in 1374 the respective dates are 36

Parliaments and Councils of Mediaeval Ireland, i. 1 1 5 - 1 9 . Proc. Privy Council, i. 55-57. 38 The parliaments are those meeting on 19 February 1366, 14 June 1367, 1 May 1368, 30 July 1369, 7 January and 8 June 1 3 7 1 , 20 January and 6 October 1 3 7 5 (Parliaments and Councils of Mediaeval Ireland, i. 22, 24-26, 36-39, 52-53, 73-74), 8 March 1378, 3 November 1380 (Lynch, Legal Institutions, pp. 3 2 5 , 3 2 8 ) , and 16 June 1 3 8 2 (Cal. Rot. Pat. Hib., p. 1 1 8 , no. 1 2 1 ) . See Appendix V. 38 Lynch, Legal Institutions, pp. 3 1 5 - 1 8 . 40 Parliaments and Councils of Mediaeval Ireland, i. 29. 41 Lynch, op. cit., pp. 3 1 8 - 2 1 . 37

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20 and 27 May; 42 in 1382, 2 and 9 January; 43 in 1394, 1 2 and 30 March; 44 and in 1395, 7 and 19 April. 46 In the circumstances it would be unreasonable to expect a full response to the summons and, although there are some rare exceptions,48 it was certainly not customary in the fourteenth century for fines to be inflicted for absence from councils as they were for absence from parliaments. 42 43 44 45 48

Lynch, Prescriptive Baronies, pp. 53-55. Parliaments and Councils of Mediaeval Ireland, i. 116. Lynch, Legal Institutions, pp. 331-32. Ibid., p. 333. Below, pp. 140-41.

8 TAXATION IN THE F O U R T E E N T H CENTURY

E HAVE already sketched the early history of taxation in Ireland and we have noticed that general taxation, as distinct from feudal incidents, was of infrequent occurrence in the thirteenth century. Edward I had obtained assent to the extension of new customs duties to Ireland, and he had overcome the reluctance of the Irish clergy to grant him a subsidy by enlisting the aid of the papacy in enforcing a contribution. Edward II also secured the grant, first of one papal tenth in 1317, 1 and then of a biennial tenth in 1322, 2 but he obtained as well a grant of a twentieth from the Irish clergy3 at the same time as he obtained a lay subsidy of a fifteenth in aid of the Scottish war.4 We have here the beginning of the later medieval system of taxation: the clergy, having learned that their privileges availed them nothing when the king could count upon the complaisance and cooperation of the pope, accepted, however reluctantly, equal liability with the laity for meeting the demands of the crown for extraordinary taxes. In 1335 a subsidy was granted by the commonalty of the land of Ireland for the Scottish war. This was a composite tax, levied on land at the rate of two shillings a ploughland of lay fees and one shilling a ploughland of the temporalities of the clergy, at the rate of a twentieth on the spiritualities of the clergy and at an unknown rate on chattels.5 A few years afterwards a tenth was granted by the clergy in a parliament that appears to have met in March 1338,Ba and,

W

1

Foedera, II. i. 319-20; Theiner, Vetera Monumenta, pp. 190-91; Cal. Papal Registers, Letters, 1305-1342, pp. 138, 442. 2 Wilkins, Concilia, ii. 514-15; Cal. Papal Registers, Letters, 1305-1342, p. 223; Deputy Keeper s Report, Ireland, xliii. 42-43. 3 Deputy Keeper's Report, Ireland, xlii. 71, 76. 4 Ibid., pp. 67, 70. 5 Ibid., xlv. 40, 42, 50-54; Foedera, III. ii. 939. 5a The evidence is supplied by an extract from the lost close roll of 12 Edward III, preserved in Armagh MS. G.11.13, fo.iofc (we owe this reference to Miss OtwayRuthven). Writs for the collection of this tenth were addressed to the four archbishops, twenty bishops, the elect of Clonmacnoise, and the keepers of the spiritualities of Waterford. Since the temporalities of the last-named see were granted to the new bishop, Richard Francis, on 6 April 1338 (Ware, De Praesulibus Hibemiae, 111

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although evidence is lacking, it may be presumed that this grant was accompanied by a corresponding grant from the laity. While it is uncertain in what manner consent was given to these grants to Edward II and Edward III, we may infer, on the analogy of later grants, that, where both laity and clergy were concerned, the negotiations took place at a meeting which may have been a parliament or what is called in Latin a tractatus, a word that is conveniently translated as 'great council.' The first certain instance of this procedure occurs in 1346 when, on Monday after the quinzaine of Michaelmas, at a tractatus at Kilkenny, a subsidy was granted 'per viros religiosos et magnates et totam communitatem terre Hibernie.' On this occasion the subsidy was at the rate of two shillings a ploughland or on the equivalent of chattels (reckoned at £.6) and a tenth on the spiritualities of the clergy:" but though the subsidy was necessarily collected county by county and diocese by diocese, it was regarded as a single tax—not as two separate taxes—and was the subject of a single account.7 It is noteworthy that in the province of Cashel the collection of the subsidy was opposed on the ground that no prelate of the province had assented to the grant. The archbishop, with his suffragans of Limerick, Emly, and Lismore, went so far as to threaten with deprivation any beneficed clergy who contributed, and with excommunication any tenants of ecclesiastical lands who did so.8 The reluctance of the clergy to accept the principle that the decision of the majority of prelates in a national assembly should bind the minority, was presumably no new thing, and we may in this way account for the fact that in 1339 a tenth had been obtained from the clergy as the result of separate negotiations with each diocese.9 Nor is it surprising to find, in view of the trouble in 1346, that at an assembly at Kilkenny in 1350—whether parliament or great council is uncertain—each county and each diocese appears to have made separate individual grants,10 p. 1 9 4 ) , parliament must have met before this date. On the other hand, a parliament had already met on 1 4 January in this year, and rather more than forty days must be allowed for the summoning of a subsequent parliament. 6 P.R.O., Dublin, Cal. of Memoranda Rolls, xxv. 1 5 : from Memoranda Roll, 2 5 - 2 6 E d w a r d III, m. 7. 7 P.R.O., E . 1 0 1 / 2 4 1 / 1 0 , 1 1 . 8 Harris Collectanea, ii. 208-9: from Placita Corone, 2 1 E d w a r d III. The account of the proceedings in Betham, Early Parliaments of Ireland, pp. 2 9 2 - 9 3 , is incomplete and inexact. 9 Deputy Keeper's Report, Ireland, xlvii. 2 7 , 3 5 , 55. 10 P.R.O., Dublin, Cal. Memoranda Rolls, xxv. 2 1 : from Memoranda Roll, 2 5 - 2 6 Edward III, m. 4. This subsidy is brought to account among general receipts: P.R.O., E . 1 0 1 / 2 4 1 / 2 0 , 2 4 2 / 1 , 2 4 2 / 7 .

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while at Dublin in 1353 a tenth was granted by the clergy in convocation and a shilling on the ploughland by the laity in parliament.11 In 1359 the precedent of 1350 appears to have been followed, but on this occasion two great councils were summoned, one at Dublin and one at Waterford, meeting a week apart. Lump sums were granted by the clergy in respect of several dioceses: a number of counties and franchises contributed a carucage—forty pence a ploughland in some cases and two shillings elsewhere—together with sixpence in the pound on chattels, while one county at least (Louth) and certain cities followed the example of the clergy and granted lump sums.12 In 1360 another carucage was granted by the laity, but this time at a uniform rate of two shillings, with a corresponding subsidy on chattels of a shilling in the pound; but it was not until 1361, at a parliament at Dublin, that a tenth for two years was granted by the clergy. 13 Thereafter, apart from a reference to a subsidy granted in 1363 by the clergy and commonalty of the land for the expenses of the prior of Kilmainham (then chancellor) and of others who had crossed to England to discuss Irish affairs with the king's council,14 our information fails for several years, but in 1369 and 1370 there are again separate grants: a carucage of half a mark from five counties at a parliament at Dublin on 30 July 1369, 15 and a subsidy of one shilling and sixpence in the pound by the clergy at a council at Dublin on 2 January following.18 Here we may pause and look back for a moment. We seem to be still far from a unified system of taxation for the whole of Ireland. The tradition of separate bargains with local communities is difficult to outlive, and even in parliament taxation may be limited to those parts of the country more directly affected by some local war, while the clergy, although contributing pari passu with the laity, tend to act 1 1 P.R.O., Dublin, Cal. Memoranda Rolls, xxvi. 4, 14: from Memoranda Roll, 28 Edward III, mm. 1, 3d. It is brought to account among general receipts; P.R.O., E. 101/243/4. 12 Cal. Rot Pat. Hib., p. 77, nos. 32-33, 36, 41; p. 79, nos. 111-12. 1 3 P.R.O., E. 101/244/9. The precise dates on which these grants were made are not given. 1 4 All we know of this subsidy is contained in the king's writ, of 15 February 1364, to enforce collection (Foedera, III. ii. 722). This refers to the grant and the recent visit of the messengers. The inference is that a parliament or council (we cannot tell which) had been held late in 1363, at which a message to the king had been drawn up. 1 5 M. V. Clarke in Proc. R. Irish Acad., xli. C. 84 (reprinted in Fourteenth Century Studies, pp. 185-86); Foedera, III. ii. 977. The dates in these two documents are not easy to reconcile. 18 Parliaments and Councils of Mediaeval Ireland, i. 30-31.

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independently. But at the point we have reached we are, as we have already seen, at the beginning of a period of heavy taxation associated with the administration of William of Windsor, and it is now that the taxation of the clergy is more closely related to the taxation of the laity. At a great council at Dublin on 22 April 1370 a subsidy was granted, consisting of a carucage at the rate of a mark a ploughland and two-tenths on the spiritualities of the clergy. 17 In the subsequent January, at a parliament at Kilkenny, a subsidy of £.3000 was granted: so far as the laity were concerned, this seems to have been assessed as a carucage of half a mark and a tax of sixpence in the pound on chattels. 18 In June of the same year, 1 3 7 1 , at a parliament at Cashel, a further subsidy of £2000 was granted, but on this occasion the amount was divided proportionately between dioceses, counties, and towns upon an assumed valuation. 19 The opposition provoked by the heavy taxes of 1369-71 led to the suspension of general taxation for several years, 20 although local taxation was levied in 1375, of which we shall have more to say shortly. General taxation was resumed in 1380 when, at a parliament at Dublin in November, there were granted an ecclesiastical tenth, a carucage of half a mark, and a subsidy of sixpence in the pound on chattels. 21 The basis appears to have been the same as in January 1 3 7 1 , but, very exceptionally, it was sought to obtain contributions from twenty-nine dioceses, to all of which a writ of summons had been directed. 22 Upon some later occasions subsidies are stated to have been granted at higher rates, twenty shillings to the ploughland and even more, 23 but for many years precise information fails us, and when we are able to pick up the threads again in the fifteenth century, subsidies are at a much more modest rate. To complete the picture of taxation in the 1370's and i38o's we must recall that additional customs duties, on foodstuffs, hides, cloth, and general merchandise, had been imposed for three years in 1369 :- 4 17 Ibid.., pp. 32-36, 42; Proc. R. Irish Acad., xli. C. 86 (no. 1 4 ) , reprinted in Fourteenth Century Studies, pp. 188-89; Foedera, III. ii. 977 (see above, p. 102). 18 Parliaments and Councils of Mediaeval Ireland, i. 43, 48-49; Foedera, III. ii. 977, 980. 19 Parliaments and Councils of Mediaeval Ireland, i. 44-45. 20 Above, pp. 81-85. 21 Early Statutes Ireland, p. 480. 22 Lynch, Legal Institutions, pp. 3 2 8 - 3 1 ; Cal. Rot. Pat. Hib., p. 109, nos. 100-103 (where Killaloe [Laonensis] appears in error twice and Kildare is omitted). 23 Below, p. 155. 24 Parliaments and Councils of Mediaeval Ireland, i. 27-28: Foedera, III. ii. 977-79; above, pp. 80, 85-86.

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these were revived for a further three years in 1380.25 There were also local taxes, which are not only significant in any estimate we may make of the total weight of taxation at this period but, in their method of assessment, help to explain a characteristic of fifteenth-century taxation. It seems evident that taxes, levied upon a restricted area of the country as contrasted with taxes imposed upon the whole of Ireland, were becoming more frequent in the second half of the fourteenth century and were assuming a regular place in Irish finance, doubtless because of the growing frequency of warfare with local Irish chieftains. The year 1358 affords several examples: between June and November subsidies were levied in six counties. In every case the subsidy would appear to have resulted from local negotiations, conducted presumably in the county court. In Kildare the earl, as well as the commonalty of the county, was a party to the negotiations,28 but that may have been because it was he who was to command the local troops. There is nothing to suggest that in any county any part of the subsidy was assessed upon the spiritualities of the clergy, and although there is little uniformity in the arrangements as between one county and another, the ultimate basis of taxation was presumably the ploughland of cultivated land or the assumed equivalent in chattels, six pounds' worth, an equation we have already had occasion to notice. In Cork and Waterford the contribution was at the rate of two shillings a ploughland.27 In Limerick a subsidy of unstated amount was for the wages of hobblers (mounted archers) and foot soldiers engaged by the justiciar in excess of the number of his household.28 In Kildare the agreement was to provide for twenty-four men-at-arms, two hundred hobblers, and two hundred foot for a fortnight or as long as was necessary. The cost of maintaining this relatively large force 25 Early Statutes Ireland, p. 478. Whether these customs duties were again renewed is uncertain. They had certainly lapsed by 1395, for the Irish council, writing in 1396, say 'et là où lieutenauntz et justices devaunt ces heures eiont levéz à lour oeps graundz subsidies des diverses marchandises issantz dehors la terre et venauntz en la terre, corne de drap, de frument, de feer, de seel, de peaux lanuz et conyz, samoun, saltfish, congre et plusours autres choses appelléz avoirdepois, depuis que le départir nostre seignur le roy hors d'Irlande rienz de deux subsidies riiist à luy grantéz pur rienz qe le lieutenaunt del tresorer illeoqes puissoit moer, ne en parlement ne en conseil, à graunde damage du roy et anyntissement de ses revenuez susditz' (Lambeth MS. 619, fo. 207). 26

27

28

Cal. Rot. Pat. Hib., p. 75, nos. 92-93. Ibid., pp. 71-72, nos. 1-3, 15.

Ibid., p. 72, nos. 4, 10.

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was to be met by a levy of forty pence a week from every ploughland, or six pounds' worth of chattels: but service might be in person, with a corresponding reduction in financial liability. 29 A further subsidy was granted in Kildare later in the year, to be levied in kind from every ploughland; namely, a crannock of wheat, a crannock of oats, and a fat cow. 30 In Dublin it was agreed to find one hundred foot-soldiers 31 and in Kilkenny twelve men-at-arms, sixty hobblers, and two hundred foot: 32 but in neither case is the method of assessment stated. Now, while it is patent that these very different arrangements in 1358 were a matter of local negotiation, a very similar financial result proceeded, as we have seen, from the negotiations in the two great councils in April of the following year, the outstanding difference being that now the clergy made a contribution from their spiritualities. It follows that, though administrative convenience was obviously served by negotiations with several counties at one time and place rather than in the county court, the nature of the negotiations must have been similar. There was, however, the further advantage that, in an afforced council or parliament to which the clergy were summoned, it was possible to negotiate for a contribution from their spiritualities, whereas negotiations in the county courts could affect, at best, their temporalities. In examining some further examples of local taxation, we shall notice the importance of this consideration. It is instructive to bring together for examination the subsidies granted in the Trinity parliament of 1375, and in the great council at Clonmel of 1381. Not only do they afford a further example of the continuity and uniformity of Irish administration under William of Windsor and the earl of March that it is well to note, but they mark a development in the method of assessing taxes that we must bear in mind. On both occasions the subsidy was limited to Munster, Kilkenny, and Wexford, that is, the seven southernmost counties and the eleven corresponding dioceses, Ferns and Ossory in the province of Dublin, and the nine effective dioceses in the province of Cashel. 33 In 1375 the prelates, magnates, and commons of these parts, acting separately from 29 30 31 32 33

Ibid., p. 75, nos. 92-93. Ibid., p. 74, nos. 58-59. Ibid., p. 73, no. 55. Ibid., p. 74, nos. 64-65. For the details of the subsidy of 1375, see Parliaments and Councils of Me-

diaeval Ireland, i. 56-66. The details of the 1 3 8 1 subsidy are in Cal. Rot. Pat. Hib., pp. 1 1 3 - 1 4 , nos. 166-83. The particulars as here set out appear to be slightly defective: the number of archers assigned to Kerry should be fifteen, while Ross is missing from the dioceses.

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the rest of parliament, made a grant of 400 marks, to be assessed by the bishops of Meath and Lismore, while in 1381 the laity of each county and the clergy of each diocese made separate grants, but on a prearranged basis so as to provide a force of fifteen men-at-arms and one hundred and fifty archers for half a year. It is evident that the bishops who made the assessment of 1375 dealt in round numbers, and the aggregate falls slightly short of the total required. In 1381 there was plainly some bargaining: the laity made themselves responsible for the archers, the clergy for the men-at-arms, and the burden was then divided between the counties on the one hand and the dioceses on the other. Though regard was had to the relative wealth or poverty of the several communities, there was no common basis of assessment on the two occasions. The conclusion must be that, whatever may have been the manner of assessment between individual counties and dioceses, the uniformity of burden that had been secured by the traditional assessment by ploughlands in the case of the laity and by the valuation for papal taxation in the case of the clergy had been set aside, although these bases were regularly employed between 1335 and 1380 for national taxation. There remain some other incidents to note, trivial in themselves but significant if we are to appreciate the place that local taxation occupied in Irish finance and its relation to central and local administration. In 1378 at a parliament at Castledermot the clergy, magnates, and commons of Dublin, Kildare, Kilkenny, and Wexford agreed to contribute ninety-one of the hundred marks required to buy off Murgh O'Brien. 34 The buying-off of Irish chieftains seems not infrequently to have led to local taxation. When Alexander Balscot, bishop of Meath, was justiciar (between October 1391 and October 1392), he and John Colton, archbishop of Armagh, 35 had agreed to pay O'Railly eightyfour marks to purchase peace for Meath. At a subsequent council at Castledermot a subsidy was granted at the rate of forty pence on every ploughland in the county, together with a contribution of £ 2 0 from the clergy of the diocese. This subsidy was intended to cover more than the payment to O'Railly, half being allotted to the justiciar to expend at his discretion and half to the general expenses of government.36 This arrangement suggests that a local subsidy was combined 34

Early Statutes Ireland, pp. 472-74. 35 Doubtless in his capacity as a prominent member of the privy council (above, p. 334)6 Graves, Roll of King's Council, pp. 192-96.

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with a general subsidy, but we have no particulars of the sums levied in other counties. At much the same time as peace was negotiated with O'Railly, the commons of Castledermot had bought off McMurgh, also, significantly enough, for eighty-four marks, to ensure the safety of the town, and they petitioned the justiciar and council in parliament early in 1393 for authority to levy this sum, which they had assessed by common assent upon the townsfolk. 37 In all these three instances, whether the initiative came from the council or the locality, we might be tempted to discern ideas which would develop into parliamentary control over local taxation, as we might also in the imposition of local subsidies in 1375 and 1381. But in 1388 we find the commons of Meath, doubtless in the county court, granting three shillings a carucate in aid of the wars in the county, 38 and evidently the principle is as active as it was thirty years earlier that local communities should manage their own business, even though that business is war. The authority of the king's government may be necessary to enforce collection, and it is for this reason that the commons of Castledermot come to parliament in 1393. The notion of parliamentary control is, however, still very restricted and is not yet applied to local affairs. If a group of counties is taxed in parliament or great council, that is a matter of convenience rather than of principle. But one fact emerges that it is most important to note, even though it be merely the result of administrative convenience. There has been in Ireland a development contrary to one that has occurred in the same period in England. In England the lower clergy ceased during the fourteenth century to attend parliament, and ecclesiastical subsidies were granted in the convocations of Canterbury and York. In Ireland from the 1370's onwards, the grants of the clergy are made, whether for national or local purposes, in parliaments or in great councils. 37 38

Ibid., pp. 128-29. Cal. Rot. Pat. Hib., p. 142, no. 220.

9 P E E R A G E A N D PEERS OF P A R L I A M E N T

HE notion of 'peerage' became established in England, as we have said, in the reign of Edward II and, by the end of the fourteenth century, had been developed substantially into the system which has lasted into modern times. The phrase 'peers of the land' passed to Ireland, and in 1342 there is enrolled a complaint from the Irish prelates, earls, barons, and commons that 'peers of the land,' ministers, and others had been taken and imprisoned without indictment and their goods and chattels seized into the king's hand.1 Who these peers were is far from clear, but it may be that the term was applied to anyone of the vaguely defined class of large landowners who might be summoned by an individual writ to a parliament or an afforced council. This is suggested by two documents of 1359 and 1360. Whereas in a general council at Kilkenny in July 1360 messengers to the king and his council in England were elected by the common consent of the Irish (privy) council, peers and prelates,2 in the Hilary parliament of 1359 the chancellor had been dispatched on a similar mission with the assent of the justiciar, prelates, magnates, and nobles (proceres).8 Not very long afterward, however, the peers had become integrated with the council in parliament, for in 1378 a petition is addressed, not, as is usual at this period, to the justiciar and council, but to the justiciar and peers of parliament.4 Again in 1393, the normal address is expanded, in one instance, by adding the words 'and to the peers in the present parliament assembled.'6 As we have already indicated, the conclusion is inevitable that under Richard II there has come into being an institution that we can recognize as a house of lords, although it does not yet bear that name, and, further, that whereas under Edward II the magnates deliberated apart from the council, now council and peers form one body and one tribunal in parliament. Another significant fact is that, in the closing years of the reign of Edward III, the doctrine is advanced and accepted that,

T

Cal. Close Rolls, 1341-1343, p. 515; Early Statutes Ireland, p. 360. Parliaments and Councils of Mediaeval Ireland, i. 22. 3 Ibid., p. 18. 4 See Appendix VI. 5 See Appendix VI. 1

2

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unless a man holds a barony or part of a barony, he need not obey a writ of summons to parliament. Although this doctrine is not specifically confined to peers, it is quite plain that it could not be applied to ministerial members of the council who were required to attend ex officio, though they, too, were sometimes summoned by writ; and quite obviously the qualifications of elected representatives are not in question. For reasons that will appear, it is not a little surprising to find the statement officially adopted that neither by the law nor custom observed in Ireland has anyone who did not hold by barony been summoned to parliament or amerced for absence,6 and we can only speculate on the reason for inventing this convenient fiction. The result is quite plain in the restriction of personal writs of summons. The restriction is apparent in the case of heads of religious houses and is marked in the case of lay magnates. But it will be convenient to treat separately the two classes of spiritual lords and the several classes of temporal lords, and also to look back to the thirteenth century and onwards to the fifteenth. No early list of spiritual lords summoned to parliament has survived, and we have to do our best with incidental notices of their presence or such casual records as have survived of fines inflicted for their absence. Despite the reforms of the twelfth century, the Irish episcopacy continued to present some contrasts to the episcopacy of Western Europe and, in particular, of England. The Irish bishoprics were numerous and many were poorly endowed: a few had but an uncertain or intermittent existence. Two bishops only owed knight service to the king in respect of their lands, the archbishops of Dublin and Armagh, but all were regarded as holding lay fees although they are not said to hold them in baronia. In the thirteenth century the king is asserting his right to the custody of all vacant bishoprics in Ireland, as he did in England, and when, under Edward I, this claim is challenged in the courts, judgment is given in favor of the Crown." The implication is that all bishops hold their temporalities of the king," with the corollary that they owe him fealty and the duties that arise 6

'Et quia . . . non est iuris seu consuetudinis in dicta terra nostra hactenus usitate quod aliqui, que per baroniam non tenuerunt, ad parliamenta nostra summoneri seu occasione absencie sue ab eisdem amerciari deberent. . . .' (Betham, Early Parliaments of Ireland, p. 318; also in Lynch, Prescriptive Baronies, p. 55; from Close Roll, 51 Edward III.) This is said in the case of Walter Lenfaunt, as to which, see below, p. 1 3 1 . 7 Above, p. 18, n. 26. 8 So the bishop of Ossory says in 1372-74 that 'ipse omnia teniporalia sua teneat de nobis in capite' (Hist. MSS. Commission, Tenth Report, App. V, p. 262).

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from the feudal bond.9 Though the king's claim was made good in respect even of such bishoprics as Deny, Dromore, Clogher, Raphoe, and Kilmore in the province of Armagh,10 the Crown did not for long enjoy any effective interest in distant Irish sees; and when the system of papal provisions reaches its fullest extension in the later Middle Ages, it becomes clear that these sees fall outside the working arrangements which fill other sees in the king's dominions with royal nominees.11 Nevertheless, all Irish bishops seem to have been regarded as, in some sense, barons and in due course, therefore, as spiritual peers.12 The principle that bishops hold their possessions of the king 'sicut baroniam' is to be found in the Constitutions of Clarendon,13 and under Edward I no less a jurist than Francesco Accursi, arguing before pope Nicholas III, explains that an archbishop of Canterbury is summoned to the king's parliaments like any other baron' and that he holds a 'secular fief.'14 A line was not easily drawn, perhaps no line was desired to be drawn, between English and Irish bishops. In consequence, although it is improbable that at any time all bishops of the four Irish provinces were summoned to parliament, as the twenty bishops of the two English provinces invariably were, yet the summons might be very wide. The only full lists that have come down to us are of the years 1375, 1378, 1380, and 1382. 18 These lists vary between themselves. The maximum number is in 1380, when twentyeight writs of summons are issued, the omissions being Ardagh and 9 See, for example, the circumstantial account of the rendering of fealty by Matthew Magrath, bishop of Killaloe, as a preliminary to the restitution of temporalities (Graves, Roß of King's Council, pp. 1 3 3 - 3 4 ) . The year must be 1 3 9 1 . 10 Cole, Documents, p. 57. 11 This is already plain under Edward II: see the particulars collected by M. V. Clarke, 'Irish Parliaments in the reign of Edward II,' App. Iii, in Trans. R. Hist. Soc., Fourth Series, x. 60-61 (reprinted in Fourteenth Century Studies, pp. 3 3 - 3 4 ) . 12 In an English statute of 1 4 1 6 it is recognized that native Irish clergy may occupy archbishoprics and bishoprics and are accepted by the king's lieutenant, and it is assumed that they will have the same status and discharge the same obligations as archbishops and bishops nominated by the king: 'et par lä ou ils sont ditez peeres de parlement en mesme la terre, il amesnent ovesqe eux as parlementz et conseils tenuz illoeqes irrois servantz,' who may spy upon the Anglo-Irish (4 Henry V, st. 2, c. 6; Statutes of the Realm, ii. 197-98). The interest of this curious and impracticable statute lies in the suggestion, for which there is presumably some basis, that native Irish bishops at this period were not only summoned to parliament but sometimes attended.

13 Cap. xi. 14 Eng. Hist. Rev., lxviii. 446. 15 For the list of 1 3 7 5 , s e e Appendix V; for those of 1 3 7 8 and 1380, see Lynch, Legal Institutions, pp. 3 2 1 - 3 1 ; for that of 1382, see Cal. Rot. Pat. Hib., pp. 1 1 8 - 1 9 , nos. 1 2 1 - 3 1 .

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Dromore in the province of Armagh, Achonry and the dubious diocese of Annaghdown in the province of Tuam, Inniscatery (also dubious), and Kilfenora in the province of Cashel. In 1378 the number is twentythree, in 1382 twenty, and in 1375 eighteen. The list of 1375 may be regarded as indicating the minimum attendance demanded. The list has regard to political realities: from the province of Tuam only the archbishop is summoned, and from the province of Armagh the archbishop and his suffragans of Meath, Connor, and Down, all centers of Anglo-Irish influence even in the fifteenth century.16 It is one thing to summon and another to secure attendance, and we have very imperfect knowledge of the number of bishops who came to parliament or were represented by proctors. If we turn first to the earlier years of organized parliaments in Ireland, we may summarize our knowledge in this fashion. We know that in 1297 the bishops of Meath and Leighlin were present in parliament, that the archbishop of Armagh sent proctors, and that the archbishop of Tuam was neither present nor did he send proctors.17 In the Candlemas parliament of 1310 there were present the archbishop of Cashel with his suffragans of Emly and Lismore, while from the province of Dublin came the bishops of Leighlin and Ossory.18 In the Easter parliament of 1324 the dean of St. Patrick's represented the archbishop of Dublin, and there were present in person the bishops of Connor, Ossory, and Waterford.19 While these names may be all that can be recovered, it does not necessarily follow that other bishops were not present or represented on these occasions, though the apparent absence of any bishop from the province of Tuam is significant. The few surviving notices of fines imposed for absence from parliament tell us no more directly than that in the late thirteenth and early fourteenth centuries writs had been issued to other bishops than those named above, namely, those of Derry and Down in the province of Armagh, Ferns and Kildare in the province of Dublin, and Clonfert in the province of Tuam,20 but we are entitled to deduce that, with perhaps the exception of some minor sees, all Irish bishops were regarded as liable to be summoned to parliament. 1 8 Cf. Gwynn, Mediaeval Province of Armagh, pp. 117, 131-35. Though AngloIrish influence in Connor diminished in the fifteenth century, its union with Down was the work of English prelates. 17 Early Statutes Ireland, p. 196. 18 Ibid., pp. 264, 274. 1 9 Above, pp. 72-74. 2 0 Below, pp. 138-39.

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For the middle years of the fourteenth century our information is sadly defective, but we should remark the presence, at a parliament at Kilkenny in 1366, of the archbishops not only of Dublin and Cashel, but of Tuam also. On this occasion two of the suffragans of Dublin were present, the bishops of Leighlin and Ossory, and three of the suffragans of Cashel, the bishops of Cloyne, Killaloe, and Lismore and Waterford. No other bishops seem to have been there.21 That the archbishop of Tuam should respond to the writ was perhaps a tribute to the king's son, Lionel, duke of Clarence, who was then his lieutenant in Ireland.22 Nothing, of course, would induce the archbishop of Armagh to attend a parliament in the province of Dublin,23 but we know that he was represented by proctors, who also represented the archbishop in another capacity, as keeper of the spiritualities of the see of Down, then vacant.24 We might perhaps expect that, when we have before us the lists of writs of summons in 1375, 1378, 1380, and 1382, and the corresponding records of fines inflicted for absence, we should be able to form some estimate of the number of bishops in attendance at this period; but unfortunately there is reason to suppose that our information is incomplete and that there were more absences than recorded fines. We cannot be certain that any fines were inflicted for absence from the parliament at Dublin on the Morrow of All Souls 1380,25 to which twenty-eight bishops were, very exceptionally, summoned, although it is reasonable to conjecture from this very fact that the number of absentees was unusually high. From the Lenten parliament of 1378 at Castledermot, to which twenty-three bishops were summoned, there were at least seven absentees:28 and it would seem remarkable if, when the archbishop of Tuam and his suffragans of Elphin, Emly, Killala, and Kilmacduagh were absent, the bishop of Clonfert should appear, though there is no record of any fine 21

Early Statutes Ireland, pp. 466-68. When Richard II was in Ireland in 1395, the then archbishop, although he did not attend parliament, sent a letter of excuse (Curtis, Richard II in Ireland, pp. 127-28). 23 In 1352 he had been authorized to send proctors to parliaments, tractatus, and councils (Foedera, III. i. 248). 24 Parliaments and Councils of Mediaeval Ireland, i. 22-24. Both proctors were apparently laymen. 25 See below, p. 141, n. 29, for the parliaments in respect of which information is available. 26 Six are given in Cal. Rot. Pat. Hib., p. 105, no. 102: they are the archbishop of Tuam, the bishops of Elphin, Emly, Killala, and Kilmacduagh, and the keepers of spiritualities of Ross. To these we can add the bishop of Ardfert from the Memoranda Roll 3-4 Richard II, noted in Ferguson Collection, i. 344. 22

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imposed upon him. How many bishops were summoned to the Epiphany parliament of 1377 is not known, but the six absentees recorded 27 are quite unlikely to be all. In the case of the Hilary parliament of 1375 at Dublin, to which eighteen bishops were summoned, our information relates solely to the province of Cashel. 28 We know that the archbishop and the bishops of Cork and Emly were represented by proctors and that the bishop of Ardfert was neither present nor represented, and we are perhaps entitled to deduce that the four other bishops summoned from the province attended. But it would seem rash to assume that, because there is no record of a fine inflicted on the archbishop of Tuam, he was present or represented. Again, of the twenty bishops summoned in 1382 to the Trinity parliament at Dublin, we can only be certain that the archbishop of Tuam and the bishop of Elphin were not present: 29 but it is unlikely that there was otherwise a full attendance. We can be certain that the octogenarian bishop of Cork was not present, although he may have been represented by proctors.30 The utmost we can extract from such data as we have are certain obvious limiting figures, almost certainly higher than the actual attendance, and the inference that a good proportion of the bishops who answered the writ of summons were represented by proctors. Passing to the fifteenth century, we find that in 1420 returns to the writ of summons were made for the dioceses of Armagh and Meath, Cashel, Cork (with Cloyne), Limerick, and Waterford (with Lismore), Dublin, Ferns, Kildare, Leighlin, and Ossory, 31 though we do not know how many bishops were present and how many were represented by proctors. The limited response from the province of Armagh and the absence of any response from the province of Tuam will be noted. In 1460 it was said that the archbishop of Tuam and the bishops of Limerick, Emly, Killaloe, Deny, Kerry, and Down and Connor answer no writs to parliaments or great councils.32 It is certainly by an error that the bishop of Limerick is included in this list, 33 but the other names 2 7 The bishops of Ardfert, Connor, Cork, Down, Emly, and Limerick (ibid., i. 324, 325). 2 8 Ferguson Collection, i. 326, 327, 350. 29 Ibid., i. 325, 332, 347. 3 0 On 20 January 1382 he had received letters patent excusing him from attendance at parliaments and councils except by sufficient proctors (B.M., Additional MS. 4798, fo. 13&—transcript from patent roll; CaZ. Rot. Pat. Hib., p. 1 1 4 , no. 197). 31 Parliaments and Councils of Mediaeval Ireland, i. xxvii. 32 Statutes, Henry VI, p. 678. 3 3 He was present or represented in parliament in 1448, 1463, and 1478, and perhaps on other occasions (ibid., Henry VI, p. 154; 1-12 Edward IV, p. 60; 12-22

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show that, as we should expect, the archbishop of Tuam continued to ignore writs of summons and also that the chancery still made at least occasional efforts to secure the attendance of the majority of Irish bishops. Indeed, the list does not include the bishop of Clogher, who had in 1427 been summoned to a great council which he failed to attend.34 The implication is that the bishops of the province of Dublin might be expected to be present or represented in parliament, that there would be a substantial representation from the province of Cashel, that in the northern province only the archbishop of Armagh and the bishop of Meath were likely to obey writs, and that in the province of Tuam writs would be entirely ignored. Personal appearance is a different matter from returning a writ, and it is noteworthy that at one parliament under Henry VII, of which we have particulars, only the archbishops of Dublin and Armagh, and the bishop of Meath seem to have been present.3"' It is unlikely that any consistent principle governed at first the summoning to parliament of the heads of religious houses as it did the summoning of bishops. We have little knowledge of the abbots and priors who had been summoned before 1375, but it is significant that they had included the abbot of Wotheney and the prior of Athassel,86 who were not summoned in that year. The list then includes nine Cistercian abbots37and six heads of houses of regular canons, of whom one is an abbot38 and five are priors.39 In addition the prior of Kilmainham (that is, of the Hospitallers) had been summoned, but on this occasion as chancellor. The parliament in question met on 20 January. At the Michaelmas parliament of the same year the prior of Kells protested against his summons on the ground that his predecessors had not been compelled to attend parliament, and it was agreed that, if Edward IV, p. 6 2 4 ) . The bishop of Down and Connor had likewise been present or represented in 1448 (ibid., Henry VI, p. 1 5 2 ) . 34 Betham, Early Parliaments of Ireland, p. 3 5 1 . 35 Letters and Papers of Richard III and Henry VII, i. 379. W e should perhaps note that the only bishop fined for absence from the parliament of March 1499 is the bishop of Ferns (B.M., Additional MS. 4797, fo. 109b-10). 38 Below, pp. 139-40. Athassel was an Augustinian house in Tipperary, and Wotheney a Cistercian house in Limerick. The master of the Temple had also been summoned before the suppression of his order (below, p. 1 3 8 ) . 37 Baltinglass, Dublin (St. Mary), Dunbrody, Duiske, Jerpoint, Mellifont, Monaster Nenagh, Tintern, Tracton. 38 St. Thomas, Dublin. 39 Connell; Holy Trinity and All Hallows, Dublin; Kells; and St. Peter, Trim.

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the prior did not hold by barony or part of a barony, he should in future be exonerated.40 The abbot of Jerpoint objected also to being summoned, but on the ground that Jerpoint was a daughter house of Baltinglass and the abbot of the mother house appeared not only on his own behalf but for the head of any daughter house. Though this argument was not expressly accepted, the abbot and his successors were excused from attendance at any future parliaments, convocations, or councils.41 Presumably as a result of these decisions the list shrinks. In 1378 seven Cistercian abbots are summoned,42 one abbot and two priors of regular canons,43 and the prior of Kilmainham. The abbot of Tintern, however, protested that his house had been founded by William Marshal, that its lands were held in frankalmoign and that it was impoverished: he was, therefore, relieved of attendance at future parliaments and great councils.44 In the list of writs of summons to the parliament meeting on 3 November 1380 his name is consequently omitted and another prior (of Holy Trinity, Dublin) is also dropped. But in the interval there must have been some thought of increasing the numbers, for it was in this parliament that the prior of Downpatrick (a Benedictine house) asked that writs should not be addressed to him and his successors and established his claim to exemption.45 Another indication of the tendency to increase the number of heads of religious houses summoned is the reappearance of the abbot of Jerpoint in the list of 1382. With what regularity he was thereafter summoned we cannot tell, but he was amerced for his failure to attend parliament in 1431, though the fine was remitted.46 There is, however, a large gap in our evidence after 1382, and our facts are few in the fifteenth century. The abbot of Tintern evidently 40

Parliaments and Councils of Mediaeval Ireland, i. 79-80. Ibid., pp. 78-79. Duiske, as well as Jerpoint, was omitted. 43 The priors of All Hallows (Dublin), Kells and Trim were omitted. 44 Statutes, Henry VI, pp. 96-98, where the letters patent are recited. The year of the parliament is given wrongly as 2 Richard II, doubtless the date of the letters patent. 45 CaZ. Rot. Pat. Hib., p. 108, no. 61. The bishop of Down, who was abbot of the house, was summoned, but the prior does not appear among the heads of religious houses in the list of writs of summons on the close roll. Curiously enough, although it is said that a scrutiny of the chancery rolls failed to show that the prior or his predecessors had been summoned, he had been fined for absence, apparently from the parliament of January 1377 (Betham, Early Parliaments of Ireland, p. 319). These discrepancies obviously raise a doubt as to the complete accuracy of the lists on the close rolls. 46 Rotuli Selecti, p. 102. 41

42

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had been summoned, despite his letters patent of 1378, for he was again excused attendance in 1447.47 The abbots of Dunbrody, Monaster Nenagh, and Tracton seem gradually to have desisted from attendance in the course of the fifteenth century, though the first-named sent a proctor as late as 1449.48 There is adequate evidence to show that the Cistercian abbots of Baltinglass, St. Mary's, Dublin, and Mellifont, the abbot of St. Thomas's, Dublin, and the prior of Connell, together with the prior of Kilmainham, continued to be summoned and to attend throughout the century.49 But these six are all and there has been a serious shrinking from the sixteen of 1375 and the greater number which, we may presume, were summoned to some earlier parliaments. It should be noted that there had been a parallel development in England, due, among other causes, to the assertion of the principle that the obligation to attend parliament depended upon tenure by barony. The seventy or eighty heads of English religious houses summoned to parliaments of Edward I had been reduced to the twenty-seven of the later fourteenth and the fifteenth centuries.50 Although in earlier times writs of summons may have been widely directed in Ireland, by 1375 they were restricted to houses in Cork,51 Dublin,62 Kildare,53 Kilkenny,64 Limerick,85 Louth,66 Meath,67 Wexford,68 and Wicklow.59 By the middle of the fifteenth century writs seem to have been sent to only three houses in Dublin, one in Kildare, one in Louth, and one in Wicklow: at least, only the heads of these houses obeyed the summons. The problem of the summoning of lay magnates to parliament and of the later temporal peerage is more complex than the problem of 47

Statutes, Henry VI, p. 96. Ibid., p. 128. Both the abbot of Dunbrody and of Tintern were summoned in 1499, but neither appeared nor returned the writ (B.M., Additional MS. 4797, fo. 109b). 49 Letters and Papers of Richard III and Henry VII, i. 379. For the prior of Kilmainham, see Statutes, Henry VI, pp. 532, 648-50; 1-12 Edward IV, pp. 68, 872; 1 2 - 2 2 Edward TV, pp. 106-8, 3 1 2 . 60 Stubbs, Constitutional History, iii. 459-60. 5 1 Tracton. 52 All Hallows, Holy Trinity, St. Mary, St. Thomas, and Kilmainham. 63 Connell. 84 Duiske, Jerpoint, Kells. 55 Monaster Nenagh. 88 Mellifont. 57 Trim. 58 Dunbrody, Tintern. 89 Baltinglass. 48

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the spiritual peers. We have seen how the conception of the feudal court, the right of the lord to demand counsel of his tenants in chief, dominated the early assemblies of which we have detailed evidence.60 In 1 2 1 3 the number of the greater tenants in chief, the major barons, to assemble seems to be twenty-seven.61 In July 1221 we have another list of magnates who are presumably those considered by the Crown to be the principal tenants in chief in Ireland: omitting six Irish Kings and chieftains, there are nineteen names.62 This list is not quite complete—it does not, for example, include the earl Marshal, who is in England—but it corresponds sufficiently well with the list of 1 2 1 3 to enable us to draw the conclusion that a meeting of about thirty magnates would be a full one. The extinction of the direct male lines of the de Lacys in 1241, the Marshals in 1245, and the de Burghs in 1333, and the fact that the predominant interests of some Irish lords lay in England, work together to complicate the position. In 1275 there are twelve English lords present in the parliament at Westminster who are also tenants in chief in Ireland and, as such, concede to the king the right to take customs duties in Ireland as they have agreed that he shall do in England and Wales. 63 In an Irish parliament of the period some, if not all, of these lords would presumably be represented by their stewards or bailiffs, as many of the greater Irish lords were in 1278. 64 There is an obvious parallel in the representation of prelates by proctors who may take an active part in parliamentary discussions, as does, in 1324, the dean of St. Patrick's, who is the archbishop of Dublin's vicar general.85 But whatever may have been the position in the late thirteenth century, in the case of the lay magnates no system of representation by proctors developed and no writs seem to have been addressed during the fourteenth century to magnates other than those resident in Ireland. In the parliament of 1324, besides the three earls of Ulster, Kildare, and Louth, the magnates—or, at least, the greater magnates—appear to number no more than fourteen.66 In 1333 there are present three earls, sixteen magnates who are qualified as knights, and eight others not so described, including the son of the earl of Ulster: this list may not so Above, pp. 10-19. See Appendix I. 82 Rot. Lit. Claus., i. 477. 63 Parliamentary Writs, i. 2. 64 See Appendix II. a: > Above, pp. 72-73. 66 Early Stattites Ireland, pp. 306-8.

61

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represent the full attendance but those named seem to constitute the greater part.67 It is evident that at this period there is no fixed list of magnates who may be summoned to parliament. One instance deserves special examination, for, unless we appreciate how exceptional it was, we may get quite erroneous notions of the numbers normally summoned to parliament. In 1310 writs of summons were addressed to the earl of Ulster, to divers prelates, and to other nobles ( p r o c e r e s ) and men in Ireland. There is enrolled a list of eighty-seven names which undoubtedly comprises the 'men' and also, apparently, some of the nobles,88 but by no means all; for it does not include Richard de Clare (lord of Thomond) and John fitz Thomas (the future earl of Kildare), both of whom we know from other evidence to have been present.89 Since we know also that there were present at least five bishops and, among other prelates, the prior of Kilmainham,70 it is evident that, in addition to the privy council, some hundred or more must have been summoned by personal writ, the majority of whom were certainly not tenants in chief. These sub-tenants were not summoned as an alternative to elected knights, for instructions were given to the sheriffs to summon two knights from every county as well as two citizens or burgesses from every city or borough.71 The intention was to secure a fully representative assembly, an assembly, however, that was recognized as too unwieldy to assist the council in drafting the legislation which was the principal task of the parliament, a task referred straightway to a representative committee of sixteen. Little, then, was left for the majority of those present to do, except to hear such admonitions as might be addressed to them and to accept the legislation prepared for their approval.72 This unusual gathering 67

Parliaments and Councils of Mediaeval Ireland, i. 13. Only some of the entries from the close (not patent) roll are printed in Early Statutes Ireland, pp. 258-68, as will be seen from a comparison with Cal. Rot. Pat. Hib., p. 1 1 3 , nos. 44, 45, 61-63. In the Early Statutes Ireland, nos. 61 (which repeated no. 4 4 ) and 62 are omitted without notice. It is evident from the repetition of an entry that the clerk responsible for the close roll was careless, and it seems probable that neither no. 44 nor no. 45 was intended to be enrolled: it is no. 4 5 that contains the eighty-seven names. The relevant entries were contained in another roll of 3 Edward II, which is ascribed in a transcript in B.M., Additional MS. 4790, fo. 93, to the common bench: only nos. 6i, 62, and 63 seem to have been enrolled there. This transcript indicates that no. 62 read 'Consimilia brevia diriguntur diversis prelatis et aliis proceribus et hominibus in terra Hibemie.' Few of the eighty-seven were apparently regarded as proceres: see p. 130, n. 77, below. 08

89 70 71 72

Early Ibid., Ibid., Ibid.,

Statutes Ireland, p. 274. pp. 264, 274. p. 262. p. 264.

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had, and has, no special significance, except in so far as it is evident that the justiciar and council did not, at this period, feel restrained from summoning, in the king's name, whomsoever they thought should be present in parliament—a principle that explains the relatively large numbers sometimes summoned later in the century. There are other lists which give a better indication of the numbers and names of those who were regarded as of such standing that they might be summoned to parliaments or councils on normal occasions under Edward II. When in 1 3 1 4 it was proposed that John Hotham should visit Ireland for the purpose of reorganizing the administration,73 twenty-nine magnates were individually notified.74 We must suppose that these twenty-nine were men who had a voice in the government of Ireland. Among them are four judges 75 and, these being omitted, we are left with twentyfive names. This list was apparently unduly restricted, for the long delay in Hotham's departure necessitated a second letter in the following year and fifteen magnates were now addressed, of whom six had apparently not been addressed in the previous year. 76 If we combine the two lists we shall include every magnate of importance and nearly every layman, other than ministers, who would be likely to receive an individual writ of summons.77 In other words, we should expect the number of lay magnates summoned to be about thirty, sometimes rather more but sometimes considerably less, for, as we have seen, the attendance might be substantially below this figure. Let us now go forward to 1375 when we have a complete list of those summoned to a parliament, meeting on the Octave of Hilary (20 January) at Dublin. 78 Excluding members of the council summoned by writ, forty-two of the temporality are personally summoned: they comprise three earls, twenty knights, and nineteen others who are not given any qualifying distinction. In 1378 the corresponding list 73

Above, pp. 35-36. Parliamentary Writs, II. ii. App. 80-81. 7r> Richard of Exeter, chief justice, and Robert Bagod and Hugh Canon, justices of the common bench, and William Alexander, justice of the justiciar's bench. 78 Parliamentary Writs, II. ii. 458-59. We must allow for the possibility that the enrolling clerk sometimes omitted names. 77 Of these, only fifteen appear among the eighty-seven of 1310. No list can be definitive, for there was an uncertain borderline. For example, a letter from Irish magnates of 6 February 1 3 1 6 , pledging their loyalty, has nine signatures, the last being that of Miles de la Roche, whose name does not appear in any of the lists of 1310, 1 3 1 4 , or 1 3 1 5 (ibid., App., pp. 98-99). 78 See Appendix V. 74

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includes twenty-eight names79—those of two earls, fourteen knights, and twelve, entered apart after the council, whose status is not specified. In 1380, there are three earls, thirteen knights, and five others.80 In 1382 the knights are reduced to twelve but the list is otherwise identical with that of 1380.81 These figures speak for themselves. The operation of the principle that summons depends upon tenure by barony—which, following the example of the prior of Kells in 1375, 82 had been put forward by a layman, Walter Lenfaunt, in 1377, and had been accepted by the Crown83—has reduced the number of temporal peers, if we may so describe them, by one half between 1375 and 1382. We may obtain light, too, from another angle. While the first complete list of parliamentary writs of summons comes from 1375, the lists of those summoned to great councils at Dublin in 1372 84 and 137485 afford convincing proof that there was then no very new departure. There are differences between the lists: the council evidently exercised wide discretion in deciding whom to summon, though the names common to the three lists are numerous. Together the lists should include, if not all, certainly most of the men to whom the council thought that a writ of personal summons might be addressed. From 1377 onward the council will evidently exercise a closer scrutiny than before in issuing such writs; but have they yet a clear idea of what constitutes a baron in Ireland, do they yet recognize a rule that will mark off a peer from a commoner? We may try to answer that question by inquiring whether a man who might have a place in parliament by virtue of personal summons was nevertheless eligible for election as a knight of the shire. Of county elections in Ireland at this period our information is regrettably scanty, but it so happens that our first substantial pieces of information regarding the personnel of knights elected to serve in parliament come from the 1370's, and we can make some instructive comparisons. To the parliament that met at Dublin on the morrow of Low Sunday (22 April) 1370, there were elected for Louth Roger Ger79

The list printed by Lynch, ibid., pp. 326-27, is incomplete: the missing names can be supplied from Cdl. Rot. Pat. Mb., p. 104, no. 77. 80 Lynch, op. cit., pp. 329-30. 81 Cat. Rot. Pat. Hib., p. 118, nos. 124-25. 82 Above, pp. 125-26. 83 Betham, Early Parliaments of Ireland, p. 318; Lynch, Prescriptive Baronies, p. 55. Lenfaunt had been summoned to a great council in 1374 (ibid., p. 54) and to parliament in 1375 (Appendix V). 84 Lynch, Legal Institutions, pp. 318-21. 88 Lynch, Prescriptive Baronies, p. 54.

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non and Richard Vernon,86 and one of the knights for Meath was James de la Hide. 87 To the parliament that met at Kilkenny on the morrow of the Epiphany (7 January) 1371, one of the knights for Meath was Simon Cusak. 88 All of these four knights received at other times personal writs of summons to great councils or parliaments: Cusak in 1372, !374> 1 375' 1380, and 1382; Hide in 1374; Gernon in 1374 and 1375; and Vemon in 1375. Moreover, when representatives were summoned to appear before the English council in February 1376 and elections were held in the county courts, apparently in the same manner as they were for returning knights of the shire to parliament, Gernon and Vernon were elected for Louth. 89 Further, on the same occasion, Nicholas Houth was one of the knights elected for Dublin, 90 and William of London and Richard Plunket were elected for Meath. 91 These three knights had also previously received personal writs of summons: Houth and London in 1372, 1374, and 1375, and Plunket in 1374 and 1375. London continued to be personally summoned and appears in the lists of 1378 and 1382, while Plunket was summoned as a member of the council, and it is uncertain whether he might yet have been summoned in his personal capacity.92 All the evidence is not of equal value: the summons to England required that the two persons elected by the commons in each county should represent both commons and magnates,93 and this unusual condition may have led to a somewhat unusual choice of representatives. Yet, taken as a whole, the evidence affords convincing proof that, up to 1376 at least, the conception of peerage and the line that distinguished a knight from a baron were vague and uncertain. If we ask how many of the temporal lords summoned actually attended parliament, we can but turn for an answer to such records of fines for absence as have survived, which, as we have already noticed, Foedera, III. ii. 977. hoc. cit. 88 hoc. cit. 89 Ayloffe, Ancient Charters, p. 455. 90Ibid., pp. 453-55; M. V. Clarke in Proc. R. Irish Acad., xli. C. 127-30 (reprinted in Fourteenth Century Studies, pp. 2 3 7 - 4 1 ) . 91 Ayloffe, op. cit., pp. 457-58. 92 He was summoned in 1 3 7 5 both in his personal capacity and as serjeant-atlaw: thereafter only in his official capacity, first as Serjeant and then as a judge. 93 The writs to the sheriffs run: 'convocatis coram te magnatibus et communibus comitatus tui, duas personas laicas, huiusmodi potestatem tam pro se quam dictis magnatibus et communibus optinentes, de eorum communi assensu eligi. . . .' The returns follow in similar form (Ayloffe, op. cit., pp. 453-59). 86

87

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cannot be relied upon to tell the full story. Moreover, it so happens— why, it is difficult to say—that the surviving records of fines relate, for the most part, to parliaments other than those for which we possess lists of writs of summons. We give but three examples, all that seem to convey any useful impression. Fines were imposed upon three of the knights and one of the other lords summoned to the Trinity parliament of 1375. 94 If on this occasion writs were addressed to all the fortytwo temporal lords who had been summoned to the Hilary parliament of that year and no more than these four were absent, the attendance was remarkably full. The same number of fines for absence is recorded in respect of the Trinity parliament of 1382,96 to which twenty temporal lords were summoned. But from the parliament of Epiphany 1377 at least twelve temporal lords were absent.96 Of these twelve, no less than eleven were summoned to the Lenten parliament of 1378, when the list had been reduced to twenty-eight names, while the twelfth absentee was Walter Lenfaunt who, later in 1377, successfully maintained that he was not liable to summons. It seems reasonable to infer that the number of temporal lords summoned in 1377, while obviously exceeding by one the number summoned in 1378, was in any case not much greater: consequently, the absences in 1377 were a considerable proportion of the whole number summoned, which may well have been no more than twenty-nine. From such data as we have presented no very definite conclusions can be drawn, but they may warn us that lists of writs of summons cannot be regarded as in any way indicative of attendances. The longer the list, we might suppose, the greater the number of absences, especially at a period when liability to summons was being challenged. But we cannot even be sure that this supposition must necessarily be true: many causes may operate to induce those summoned to attend parliament or to keep them away. It may well be that in the 1370 s the net had been cast widely, more widely than had for long been customary. The list of names in 1333 is evidently of much the same proportions as the lists of 1378 and later years. But the decline from 1378 to 1382, slight though it is, seems to 94

Walter Cusak, Thomas Vernoile, Thomas Brune, knights; and John Husee, baron of Galtrim (Ferguson Collection, i. 326, 327, 349, 350). 95 Richard de Burgh, Simon Cusak, Thomas fitz John, knights; and Maurice fitz Richard (ibid., i. 325, 332, 346, 347). 96 Earl of Desmond, David de Barry, Richard de Burgh, Hugh Byset, Thomas fitz John, Patrick de la Freigne, Walter Lenfaunt, Henry Savage, knights; and Philip son of William de Barry, Maurice fitz Richard, Nicholas Poer, John Roche of Fermoy (Ferguson Collection, i. 324, 325, 327, 328, for all except Byset and Savage, supplied by Betham, Early Parliaments of Ireland, p. 319).

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mark a real movement. The Crown is no longer insistent upon attendance by the temporal peers and the numbers drop. At the end of the Middle Ages they count, apart from the earls, no more than twelve, 97 and it is quite clear that, in contrast to the sentiment at the end of Edward Ill's reign, the dignity of a peer has become a rare and precious possession. The stages by which this result was attained are obscure, for no lists of writs of summons have been recovered subsequent to 1382; but there is no mistaking the background of Thomas Bathe's solicitation of Henry VI for recognition of his claim, as lord of Louth, to a seat in parliament, from which it had been sought to exclude him, 98 nor of the hot and prolonged dispute between the barons of Gormanston and Slane over their precedence. 99 The creation by patent of Robert Barnewell to be baron of Trimbleston and of Roland fitz Eustace to be baron of Portlester in March 1462100 is evidence that the peerage of Ireland had by then been assimilated to the peerage of England, though it is not until 1478 that the dignity of viscount appears in Ireland between the rank of earl and the rank of baron, 101 and then the dignity seems to have been conferred merely as a way of settling the GormanstonSlane quarrel. It is plain that, by the second half of the fifteenth century, the notion of peerage had moved a long way from the principle that tenure by barony involved liability to attend parliament, nor is it likely that, when the principle was enunciated, there was any very clear idea of what constituted a barony. To declare that a bishop held in baronia implied that he was liable to summons to the king's court, as if he were a layman: but though this might afford a juristic basis for summoning bishops to parliament, in reality they were summoned because they were bishops. The barony of which men were speaking in the 1370's was something different from a lay fee, of whatever kind, held in chief of the Crown, or rather it was that and something more. Many landowners had in the past been described as the baron of some particular land in Ireland—the baron of Naas, the baron of See the lists in the Complete Peerage, i. 462. Statutes, Henry VI, pp. 652-58. He had already taken his seat in parliament (ibid., pp. 532, 564). 99 Ibid., pp. 710-12; Statutes, 1-12 Edward IV, pp. 34-36. See also Betham, Early Parliaments of Ireland, pp. 368-75. 100 Cal. Patent Rolls, 1461-1467, pp. 178-88; Lords Reports on the Dignity of a Peer, v. 361. 101 Cal. Patent Rolls, 1476-1485, p. 120. 97 98

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Galtrim and so forth102—and the qualification is to be seen in some lists of summons to parliament. But such titles are merely means of identification: they are not, at least in origin, titles of dignity, and they signify no more than the lordship of some well-known estate. In the 1370's the concept behind "barony' must be very like the concept behind the 'major baron' of Magna Carta 103 or the "baron' of the assize of Richard I in which he distinguishes between earls, barons, and knights.104 A baron is one who holds a large fief of the Crown, a wealthy man—witness the phrase riche homme—who can properly be burdened with attendance at parliament, and such a man may be a bishop or the head of a religious house as well as a layman. Certainly poverty is a valid ground for relief.105 A distinction so vague as this may obviously enable some to excuse themselves and equally may enable the Crown to exercise discrimination as between one tenant and another. The outcome is that those few who do not seek to excuse themselves, or are not tacitly excluded, acquire a prescriptive right to peerage, while the king can replenish their diminished numbers by creating peers by patent, irrespective of the lands they hold. It is necessary to add but a few sentences on the members of the privy council who sit in parliament by reason of their quality as counsellors. The presence of the principal ministers was clearly essential, and we have seen how parliament itself is based upon the council, of which it is but an afforced assembly. The question is, how many ministers attended? Very exceptionally, as it would seem, personal writs of summons were sent in 1375 to the chancellor, the treasurer, the chief justice of the common bench, the chief baron, the second baron, and the chancellor of the exchequer, the chief justice of the justiciar's bench, two serjeants-at-law and the king's attorney—ten ministers in all.108 It was not 102 The suggestion that the title of baron was peculiar to the tenants in chief of the de Lacys, which has been advanced to explain the title of "baron of Castleknock' (Ball, History of County Dublin: Southern Fingal, p. 8), seems to be without foundation. Castleknock was held of the crown. Naas was in Leinster and was held of Strongbow and his successors. 103 Cap. 14: see the comment in McKechnie, Magna Carta, pp. 251-53, and the discussion of cap. 2, ibid., pp. 196-203. 104 Foedera, I. i. 65. The price of a license to tourney was 20 marks for an earl, 10 marks for a baron, 4 marks for a landed knight, and 2 marks for a landless knight. 105 This is a ground for excusing the abbot of Jerpoint from attendance (Parliaments and Councils of Mediaeval Ireland, i. 78-79) and was one of the pleas advanced by the abbot of Tintern (above, p. 126). 106 See Appendix V. Apart from the chancellor (William Tany, prior of Kilmain-

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customary to send writs of summons to the chancellor and treasurer, and it may be that other ministers also attended parliament without special summons. Nevertheless, the 1 3 7 5 list probably indicates an unusually large attendance of ministers, and when w e find, as in 1 3 7 8 , 1380, and 1382, writs addressed to five judges only, it is possible that, besides the chancellor and treasurer, no more than these five were expected to attend. 107 ham) and the treasurer (John Colton), the offices of the ministers are not indicated. They are Preston, chief justice of the common bench; Holywood, chief baron of the exchequer; William Karlell, second baron; John Karlell, chancellor of the exchequer; Keppok, chief justice of the justiciar's bench; Plunket and Tyrrell, serjeants-at-law; and Michell, attorney. 107 Lynch, Legal Institutions, pp. 327, 330; Cal. Rot. Pat. Hib., p. 119, no. 126. The five are Preston, chief justice of the common bench; Bray, chief baron of the exchequer; Keppok, chief justice of the justiciar's bench; Plunket, justice of the common bcnch; and Tyrrell, justice of the justiciar's bench.

10 ABSENCE AND AMERCEMENT

AVING reviewed in some detail the history of peerage in Ireland, it will be convenient now to turn to the question of the amercements, or fines, imposed as penalties for absence from parliament. Such records of these fines as have survived are of some assistance in relating summons to attendance at parliament and we have used them for this purpose. But in itself the practice of inflicting these pecuniary penalties is of no great constitutional significance, though it is one of the points of difference which distinguishes the Irish parliament from the English parliament. Incidentally, however, this point of difference throws light upon the obscure history of the Modus tenendi parliamentum. We may first spare, in passing, a few sentences for that political tract. It is evident that, when the writer insists that no one less than an earl or a baron or their peers is bound to attend parliament at his own costs, he has in mind the principle advanced and accepted in Ireland at the very close of Edward Ill's reign, and that when he refers to amercements for failure to attend parliament, he has the Irish practice in view. These things are said in chapters 3 and 11 of the Irish version of the Modus, and these and a number of other details—such as the part assigned to clerical proctors and the contrasting grammatical construction of the concluding chapters of the two versions1— indicate infallibly that the Irish version preceded the English version. Moreover, though in the latter some passages are elaborated, even this elaboration bears evident marks of an Irish origin, as where it is laid down that amercements are fixed upon a scale of £. 100 for an earl or archbishop, 100 marks for a baron or a bishop holding an entire barony, and so on.2 We shall see how this scale tallies with Irish practice. But it would be out of place to pursue here a discussion of the Modus, although some mention of it was necessary, and we have said enough to show that it could not have been written earlier than the reign of Richard II, when, in fact, the earliest manuscripts appear. For the

H

1 While chapters 1 7 and 18 of the Irish Modus are logical and straightforward, the corresponding chapters 24 and 25, in the English Modus, are dislocated and confused. The Irish version is now conveniently accessible in M. V. Clarke, Medieval Representation and Consent, pp. 384-91. 2 Chapter 9 of the English Modus.

137

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rest, the tract lies on the very fringe of parliamentary history and cannot be used as a source for that history, though it may occasionally serve to illustrate some point established upon other and surer foundations. The practice of amercing those who absented themselves from parliament is found in Ireland from the reign of Edward I to that of Henry VII, though there are periods when it seems to have been in abeyance. If it would be rash to say that willful absence from parliament was never punished by amercement in England, it is certain that there was in England no systematic practice of the kind found in Ireland; and, indeed, no evidence that fines were inflicted in England has ever been produced. The earliest surviving references to amercement for failure to attend the Irish parliament were contained in accounts on the Irish pipe rolls, namely, an account of the sheriff of Dublin for the period from Michaelmas 1282 to Midsummer 1284, and an account of the sheriffs of Tipperary from Michaelmas 1282 to Michaelmas 1284. The penalty in each of the three cases there mentioned was 100 shillings, and the absentees were the Master of the Temple, Peter Bermingham, and Geoffrey Prendergast.3 We learn elsewhere that the king remitted a fine of £.40 imposed upon John, bishop of Clonfert, because he did not appear in person at the first parliament at Dublin after the office of justiciar had been committed to William de Vescy, that is, the parliament of Easter 1291. 4 Again, in April 1293 Florence, bishop of Derry, paid 20 shillings in respect of his absence from parliament, but this looks like an installment of a larger sum.5 These examples are sufficient to show that the practice of amercing those absent from parliament was well established in Ireland before the end of the thirteenth century. There is then a gap in our evidence until 1312, when, for failure to attend the Midsummer parliament of that year, Walter, bishop of Kildare, and Maurice, bishop of Leighlin, were each fined £.40, and William of St. Leger, steward of the franchise of Kilkenny, was fined 40 shillings.6 Adam, bishop of Ferns, appears to have been 3

Betham, Early Parliaments of Ireland, p. 258, citing the pipe rolls of 1 1 and 12 Edward I. These details do not, however, appear in the calendar in Deputy Keeper's Report, Ireland, xxxvi. 69, 74-75. 4 Cal. Close Rolls, 1288-1296, p. 287. William de Vescy had taken up office in November 1290. 6 Cal. Docts. Ireland, 1293-1301, p. 1 1 . 6 P.R.O., Dublin, Cal. of Memoranda Rolls, vii. 7, 16, 41; from Memoranda Roll, 6 Edward II.

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fined for his absence from the same parliament, but the amount is not recorded.7 The evidence, so far as it goes, seems to point to a standard penalty of £ 4 0 in the case of bishops and 100 shillings in the case of barons, though we must not try to give any precise meaning to 'baron.' We next obtain evidence from a period lying roughly between the year 1320 and the year 1333: owing to the form in which the information is presented, the limits are a little uncertain.8 Though the fines vary widely in amount, the general level is a good deal higher than in the previous period. There are many fines of £ 4 0 and under, and also some of £.100 and 100 marks. The fines of £ 1 0 0 are imposed upon the earls of Kildare9 and of Ormond;10 the fines of 100 marks upon the bishops of Down 11 and Emly 12 and upon three barons, Maurice fitz Nicholas,13 George de la Roche,14 and Maurice of Rochefort.18 But we must not be misled by these examples into supposing that there is a standard fine of 100 marks for barons of high rank, since, although George de la Roche is twice fined this sum, on other occasions Maurice fitz Nicholas is fined £40 1 6 and Maurice of Rochefort £ 2 0 . " Indeed, fines inflicted upon barons range down to £ s 1 8 and there is one instance of a fine of £ 1 , though we do not know in what capacity this absentee was summoned to parliament.19 The abbot of Wotheney is 7 Lynch, Legal Institutions, p. 53, citing Memoranda Roll, 5 Edward II. We have not been able to recover the entry. The date of the parliament appears to be determined by the date of Adam of Northampton's election, which must have been subsequent to the congé ctétire, given in January 1 3 1 2 (Cal. Patent Rolls, 13071313, PP- 4 " . 415)8 The uncertainty arises because the appearance of a fine on a pipe roll (the series of which was, in any case, imperfect when calendared) is an unreliable guide to the date of the parliament in question, unless this is expressly mentioned. Thus the fine imposed upon the sovereign of New Ross, which, so far as our present information goes, appeared for the first time on the roll of 16 Edward III, was incurred at the parliament of Hilary 1329 ( Deputy Keeper's Report, Ireland, liii. 28). 9 Ibid., xlii. 30. 10 Ibid., xlv. 35. 11 Parliaments and Councils of Mediaeval Ireland, i. 10. 12 Ibid., pp. 8-9. 13 Foedera, II. ii. 930. 14 Cal. Patent Rolls, 1303-1334, p. 549; Deputy Keeper's Report, Ireland, xliii. 47-48. 15 Parliaments and Councils of Mediaeval Ireland, i. 7-8. 16 Foedera, II. ii. 930. 17 Parliaments and Councils of Mediaeval Ireland, i. n - 1 2 . 18 Deputy Keeper's Report, Ireland, xlv. 35. 19 Ibid., xlii. 61.

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fined £ 2 0 2 0 and the prior of Athassel £ 15. 2 1 These fines may be compared with those of £ 2 0 imposed upon the town of Youghal, 22 and £ 1 0 upon the sovereign of New Ross. 23 The inference seems justified that, as we should expect, the circumstances were weighed in each case. For the next forty years there is little evidence of the infliction of fines for absence from parliament. This can hardly be due to the loss of records, for one of the principal sources of information for a later period, the memoranda rolls of the Irish exchequer, had, until recently, been preserved in a fairly continuous series and apparently contained no trace of any fines during these forty years. 24 When we look elsewhere, we find in the receipt rolls of the Irish exchequer small payments recorded from the bishops of Ossory and Ross in 1357 and 1365-66 'quia non venit ad parliamentum,' but nothing else; 25 and the sole remaining piece of evidence is the penalty of £ 2 0 0 threatened against certain of those summoned to a great council in 1359 for failure to attend.26 But in the 1370's the picture is very different. Fines were frequently inflicted and absentees seem to have been treated with severity, little attention being paid to excuses. The first indication of a changed attitude is contained in the writs of summons to a great council at Dublin on 25 February 1372. A large number of knights and others, including the abbot of Baltinglass, were required to attend under a penalty of 100 marks. But this threat was apparently confined to those summoned through the sheriffs of counties and stewards of franchises, and no threat was held out to the archbishops of Dublin and Armagh or to other prelates directly summoned or to the earls of Kildare and Ormond.27 A small fine was actually inflicted for absence 20 Ibid., p. 73Ibid., p. 72. It is possible that the £ 15 is the balance left after an installment had been paid. 22 Ferguson Collection, i. 283, 319: from Attermination Roll, 1-30 Edward III. 23 Deputy Keeper's Report, Ireland, liii. 28. 2 4 If it had been otherwise, we should have expected to find evidence in the various collections of transcripts and extracts and in the calendars prepared by the Irish Record Commission. 2 5 The former paid 100 shillings (P.R.O., E. 101/243/12) and the latter 13s. 4d. (ibid., 244/9). 2 8 Lynch, Legal Institutions, pp. 315-16. As printed, the names of those summoned are in the wrong order: cf. Cat. Rot. Pat. Hib., p. 77, nos. 21-22. The penalty of £.200 may have been threatened in the case of only one of those summoned by personal writ. 2 7 Lynch, Legal Institutions, pp. 318-21. 21

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from a great council in 1374; 2 8 but it is for absence from parliaments between 1 3 7 5 and 1 3 8 2 that fines were most numerous. In respect of at least seven parliaments in these years fines were imposed,29 and it may well be that our lack of information in respect of other parliaments is merely accidental. After 1382 we have evidence that fines were inflicted for absence from a parliament in 1389, but then there is a long break in our information, which can hardly be the result of chance, and it looks as though the practice of amercing absentees fell into desuetude until it was revived under Henry VI. It may have been found that fines were not worth the trouble of collection: they were evidently resisted, often remitted or reduced, 30 and it is significant that we find the exchequer at the end of the reign of Henry IV still engaged in recovering a fine imposed in 1375. 8 1 Of the numerous fines recorded for the period from 1 3 7 5 to 1389 only two amount to £,100 and these were imposed upon the earl of Desmond 32 and the archbishop of Tuam. 38 The fine usually demanded of an absent bishop was 100 marks,84 but if a bishop sent a proctor when his personal presence was required, the fine was much smaller and might range apparently from 20 shillings to £ i o . 8 5 The only 28 Ferguson Collection, i. 348: from Memoranda Roll, 48-49 Edward III, m. 22— a fine of a mark imposed on the mayor and bailiffs of Drogheda, subsequently remitted. 29 The seven parliaments are those of January, June, and October 1375, January 1377, March 1378, April 1380, and June 1382. The main original source of information was the memoranda rolls, but for these rolls we depend upon the extracts in the Ferguson Collection, vols, i and ii, and the Calendar of Memoranda Rolls prepared by the Irish Record Commission. As a rule the Ferguson Collection is more reliable, and this we cite. 30 It would appear that fines were imposed without due inquiry and even regardless of legitimate excuses tendered by proctors in parliament (Parliaments and Councils of Mediaeval Ireland, i. 69-73, 89-90, 97-98, 1 1 0 - 1 1 ) . On one occasion the bishop of Connor was fined although he had received no writ of summons (Cal. Rot. Pat. Hib., p. 109, no. 80). 31 From the personal representative of Walter Plunket who had been fined a hundred shillings (Ferguson Collection, ii. 176: from Memoranda Roll, 13-14 Henry IV). 32 Ferguson Collection, i. 325. 33 Cal. Rot. Pat. Hib., p. 105, no. 102. 34 We have noticed fifteen instances: Ferguson Collection, i. 324-26, 332, 344, 347; ibid., ii. 88d, 96; Cal. Rot. Pat. Hib., p. 105, no. 102. A fine of the same amount was imposed on the keepers of the bishopric of Ross in 1378 (ibid.). 36 Ferguson Collection, i. 327, 350: fines of forty shillings on the bishop of Cork, twenty shillings on the bishop of Emly, and a hundred shillings on the archbishop of Cashel, all in respect of the parliament of January 1375. For a fine of £. 10 on the bishop of Ferns, see Parliaments and Councils of Mediaeval Ireland, i. 110-11.

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AGES

other instances recorded of fines of 100 marks are one imposed upon the archbishop of Tuam 36 and one upon John Freignes, a knight of the shire, and the franchise of Meath that elected him: this latter fine was afterwards reduced to 100 shillings.37 Too few fines upon heads of religious houses are recorded to enable us to draw any deductions, but we may note that the highest was £.10, imposed upon the abbot of Tracton in 1377. 38 There is certainly no consistency in the amounts of the fines inflicted upon barons or temporal peers, as we may now fairly call them. In 1377, for example, eight are fined 100 shillings, one 40 shillings, one 2 marks, one 20 shillings:39 nor does the amount depend upon whether the absentee is of knightly rank or not.40 Moreover, Richard de Burgh, who is on this occasion fined 100 shillings, is on other occasions fined 10 marks and £.20. 41 However, 100 shillings is a more frequent amount over the period than any other. These rather wearisome particulars are of little interest except as indicating that there was no scale of fines related to rank or precedence in parliament, but, at the same time, pointing to the source which suggested to the redactor of the English Modus tenendi parliamentum the scale of fines he incorporated in his text. It remains to be added that few fines are recorded that were imposed upon towns or sheriffs for failure to comply with writs and that in those few instances the sums vary between 20 shillings and £, 10. 42 Here the point of interest is that, if there were few fines, there can rarely have been any failure on the part of popular representatives to appear in parliament. We cannot put like stress on the rarety of fines for failure to return proctors to represent the lower clergy, for it is uncertain how frequently their presence was demanded at this period: we know of no other 36 Ferguson Collection, i. 325. 37 Parliaments and Councils of Mediaeval Ireland, i. 113-14; Cal. Rot. Pat. Hib., p. 105, no. 102; p. 107, nos. 24-25. 38 Parliaments and Councils of Mediaeval Ireland, i. 97-98; Ferguson Collection, i. 327. 39 Ibid., i. 324-28. Here only six fines of 100 shillings are noted: two more are noted by Betham, Early Parliaments of Ireland, p. 319, from Pipe Roll, 14 Henry VI. 4 0 As indicated by the classification on the close roll of writs of summons. 41 Cal. Rot. Pat. Hib., p. 105, no. 102; Ferguson Collection, i. 347. 4 2 Thus, in 1377 the sovereigns of the towns of Kilkenny and New Ross are fined 20 shillings and the mayor and bailiffs of Limerick 40 shillings (Ferguson Collection, i. 328); in 1375 the sheriffs of Louth and of the Cross of Kerry are each fined 20 shillings (ibid., i. 327). In 1378 the towns of Athenry and Galway are each fined 100 shillings and the county of Wexford S. 10: but this relatively heavy fine was inflicted because an outlaw had been returned as knight of the shire (Cal. Rot. Pat. Hib., p. 105, no. 102).

ABSENCE AND

AMERCEMENT

143

instance to set beside the fine of 40 shillings imposed on the dean, chapter, and clergy of Cashel in 1378. 43 As we have remarked, there is no indication that fines were imposed for absence from parliament after 1389 until the reign of Henry VI, when the practice had evidently been resumed. The earliest year in the fifteenth century for which we have evidence is 1426. Thereafter we have scattered notices until 1450, but between 1450 and 1499 there is a wide, and apparently a significant, gap in our information, though it must be remarked that the fines inflicted at the end of the century are of similar amounts to those inflicted under Henry VI. 44 In general these amounts are more reasonable and more likely to be collectable than the higher sums demanded in the fourteenth century. The usual fine imposed upon an absent bishop is 100 shillings,45 but it may well be that in these cases the bishop was represented by a proctor,46 for there are still cases where fines of 60 or even 100 marks are imposed, though apparently not collected.47 It is plain that under Henry VI no distinction was drawn between absence from a great council and absence from a parliament, the reason doubtless being that, in function and in constitution, the one differed little from the other. There were a good many failures on the part of sheriffs of outlying counties and distant town authorities to comply with writs of summons,48 but until 1499 no instance has come to light of a fine inflicted upon an absent temporal peer, and then it would seem that the peers in question were absent only from the second session of parliament.49 The inference would seem to be that the causes we have "Ibid. 4 4 The available evidence relates to great councils of 1426, 1427, and 1429 and a parliament of 1431 (Betham, Early Parliaments of Ireland, pp. 351-52, 359, supplemented by Rotuli Selecti, p. 102), a parliament of 1450 (Cal. Rot. Pat. Hib., p. 265, no. 13) and a parliament of 1499 (B.M., Additional MS. 4797, fo. 109b110, from 'Extracta cancellarie anno 12 etc. Henrici VII,' which must be derived from a memoranda roll). 4 5 There are nine instances spread over five of the six occasions, the only exception being 1426. 4 6 That bishops were prepared to pay for the convenience of being represented by proctors, and that in this way they escaped fines for absence, seems clear from Giles Thorndon's allegations against the earl of Ormond in 1443-44 (Proc. Privy Council, v. 333-34)4 7 Fines of £ 4 0 on the bishops of Down and Connor in 1426; 100 mark fines on the bishops of Connor and Ossory in 1431. The next highest fine is £ 2 0 on the archbishop of Tuam for an improper return to a writ in 1450. 4 8 Sheriffs of Connacht, Cork, and Limerick and the stewards of Wexford and Ulster. The town authorities of Athenry, Galway, Kinsale, Wexford, Youghal. 4 9 See below, p. 178.

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AGES

seen at work in reducing the number of peers left a select few who esteemed their rank to be a high dignity and service in parliament an honor. Like causes did not operate in the case of bishops or of the lower clergy 50 or of popular representatives, 51 and the clerks of the chancery still addressed, at least from time to time, writs to distant sees and distant constituencies where, as experience must have taught them to expect, compliance was out of the question. 50 There seems to be no record of fines on proctors of the lower clergy for absence until 1499: but this may be mere chance. 51 In this case also, there seems to be no evidence in the fifteenth century until 1499, though there are some cases in the fourteenth century.

11 P A R L I A M E N T IN T R A N S I T I O N

OR nearly forty years, from 1382 to 1420, precise information regarding the Irish parliament is scanty. A few valuable documents have survived for this period—of added importance because of their rarity—and of some we have already made use. We know, too, that, although there may have been intervals when no parliaments were summoned—as when in 1384 the chancellor, who was apparently at odds with the lieutenant, was forbidden to summon parliament1— it was exceptional for a year to pass without a parliament or at least a great council that might be held in substitution. And although material is lacking for continuous and detailed history, it is evident, when at last in the 1420's we are able to draw upon fairly abundant sources of information, that the Edwardian parliament has been transformed. This transformation, we cannot doubt, is the result of changes over the three intervening reigns of Richard II, Henry IV, and Henry V, and its effect is to give the Irish parliament the constitution and functions characteristic of it until Poynings' Law and the Tudor reconquest of Ireland again transformed it into a reflection of the contemporary English parliament. During these three reigns a parliament to which the commons and lower clergy were not summoned became inconceivable, the peers of parliament became an increasingly select body, and the separation of function between lords and commons became definite and systematized. It is during this period that we observe the alteration in the description of the upper house from 'prelates, nobles, and magnates' or 'prelates, earls, barons, and other magnates'2 to 'lords spiritual and temporal,'3 and we learn that the title of 'peer of parliament' is applied even to bishops of Irish nationality,4 for rank, and rank alone, has come to determine peerage. All these changes necessarily came gradually, though the lines of development had been determined, as we have seen, in the latter years of Edward III. And if the background lacks precision, its outlines are

F

1

Cal. Close Rolls, 1381-1385, p. 500. Early Statutes Ireland, pp. 482-86, 504. 3 Ibid., p. 562. 4 Above, p. 1 2 1 , n. 12. 2

145

146

THE

IRISH

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IN T H E

MIDDLE

AGES

sufficiently definite to enable us to put into the proper setting such details of parliamentary history as can be recovered. We may first say something of legislation, although this was not the principal function of the Irish parliament. Evidently legislation was often formal. The statute of Kilkenny of 1366 was frequently confirmed, notably at a parliament at Dublin in 1402, 5 and thereafter it seems to have been customary to confirm the statutes of Kilkenny and Dublin and the great charter: we have reference to this proceeding in 1404, 1408,6 and 1410. 7 The surviving documents connected with the Dublin parliament of 1410 show plainly that the confirming statute was, on this occasion, based upon a petition of the commons framed upon the English model, and we are led, therefore, to believe that this form of procedure goes back to the beginning of the fifteenth century. There is no doubt that English practice was, at this time, strongly influencing procedure in Ireland, as witness the answer of the 'governor' to a petition of 1410 that parliament should not be adjourned or dissolved without reasonable cause shown in parliament and by the advice of the lords and commons. The reply is that the form of adjournment shall be after the manner of England. 8 It will be instructive to set out the form of the petitions presented by the commons at this period and the general line of action taken in consequence, adopting as our guide the example of 1410. 9 The petitions are written as a continuous schedule. They begin with formal requests: that the church shall enjoy the liberties used since the Conquest, that the commons shall have their liberties, that the city of Dublin and other cities and boroughs shall enjoy their franchises, that the great charter and the statutes made in the time of the duke of Clarence (1366) and in the time of Thomas of Lancaster (1402) and all other good statutes and reasonable ordinances shall be enforced. There follows a series of specific requests relating to specific grievances, to each of which the answer is framed as in England: 'le gouverneur s'avisera' for a refusal; 'le gouverneur le veult,' or the like, for an assent; and in other cases a more detailed reply is given. 5

Early Statutes Ireland, pp. 504-6. Marlborough's Chronicle, s. a. 1404, 1408. 7 Early Statutes Ireland, p. 520. Later commissions to justices suggest that there were subsequent confirmations (Cal. Rot. Pat. Hib., pp. 209, no. 102; 2 1 7 , no. 13: 229-30, no. 110; 232, no. 40). 8 Early Statutes Ireland, p. 520, c. 5. 9 Ibid., pp. 520-27. An English translation only has survived, but the French forms can be reconstructed. 8

PARLIAMENT

IN

TRANSITION

147

The schedule with the answers inserted was then used as a basis for drafting a statute or other instrument10 to give effect to those petitions that had been, in whole or part, agreed. The general form of the resulting legislation can be seen in the surviving statutes of 1402,11 which clearly have behind them a series of petitions similar to those of 1410. Apart from the assent of the lords expressed in the preamble to the statutes, we are not told what part the upper house took in the framing of legislation, but doubtless the governor acted with the advice of the lords who, though they may no longer bear the name, are, in fact, together with the ministers, the council in parliament. It is evident that such legislation as was passed by Irish parliaments at this period has survived very imperfectly. Nothing corresponding to the English statute roll seems to have been maintained, nor were collections of Irish statutes compiled in any way comparable to the numerous private collections of English statutes.12 Several causes doubtless contributed to this neglect of Irish legislation: the general application of English legislation to Ireland, the special legislation for Ireland promulgated from time to time by the king in England, and the fact that members of the legal profession in Ireland sought their training in London. 18 As Henry V was told, 'your lieges of your land of Ireland are ruled and governed by your laws used in your realm of England.' 14 Some selection was observed in the practical application of more recent English legislation. The Statutes of Labourers were necessarily adapted to Irish conditions,15 and particular English statutes, such as those of 1390 relating to admiralty jurisdiction and the clerk of the market, were expressly reenacted. 16 But there was apparently a good deal of local legislation, however ephemeral it may have proved to be, passed from time to time in Ireland. We hear of a statute, now lost, that no man of whatever estate or condition shall pass overseas or export corn, horses, or falcons without 1 0 The form taken might be a writ directing public proclamation, as at a parliament of Henry V where the lords and commons made representations regarding false and mutilated coin and the consequent difficulties in the way of obtaining acceptance of legal tender (Cal. Rot. Pat. Hib., p. 229, no. 109h). 11 Early Statutes Ireland, pp. 504-8. 1 2 Below, pp. 225-26. 1 3 There is much evidence of this, but it is sufficient to cite the statement in the message sent from the Irish parliament in 1421 (Early Statutes Ireland, p. 574). 14 hoc. at. 15 Ibid., pp. 488-90. 1 8 13 Richard II, stat. I, cc. 4, 5 (Statutes of the Realm, ii. 62); Early Statutes Ireland, pp. 506, 510-12.

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MTDDLE

AGES

license. 17 An ordinance forbids the furnishing to Irishmen, not abiding among the English, of corn, malt, bread, wine, ale, salt, iron, horses, armor or other necessaries.18 Other legislation deals with the resettlement of march-lands laid waste by the Irish or English rebels, 19 licenses to absentees, poaching, purveyance, 20 forcible entries, 21 the emigration of native Irish and of laborers,22 the election of sheriffs, 23 legal tender,24 and similar domestic matters.25 But for many problems and grievances lords and commons looked to the king's council in England for solution or redress: hence the 'messages' we have already noticed, which continued to be addressed to the king until the end of the Middle Ages. We do not know the nature of the assembly from which came, early in 1380, petitions from the lords and commons, asking that grants should not be made in England nor writs or letters patent issued without reference to the Irish government, and also that Irish lords should not be required to render homage in England. 26 Such representations were not necessarily drawn up in parliament: a great council might serve equally as the occasion. An instructive example occurs in 1385 when, we are told, the prelates, lords and commons, at councils held at Dublin and Kilkenny, were informed by the lieutenant and council of the mischiefs and perils that threatened Ireland. After some interchanges between the lieutenant and council on the one hand and the lords and commons on the other, the latter elected as their representatives the archbishop of Dublin and the bishop of Ossory to lay before the king an account of the state of the land and to ask him to visit Ireland in person or, at least, to send the greatest and most trustworthy noble from England. 27 It would seem to have been at a great council at Castledermot in July 1388 that the archbishop of Armagh was elected 17

Graves, Roll of King's Council, p. 162; Early Statutes Ireland, p. 490. Ibid., p. 498. 19 Graves, Roll of King's Council, p. 221. 20 Early Statutes Ireland, p. 508. 21 Ibid., pp. 514-16. 22 Ibid., pp. 516-18; Cal. Rot. Pat. Hib., p. 201, no. 114. 23 Early Statutes Ireland, p. 518. 24 Cal. Rot. Pat. Hib., p. 229, no. logfc: see above, p. 147, n. 10. 25 Early Statutes Ireland, pp. 520-27. 26 P.R.O., C. 49/9/12. This is headed: 'Ces sount les articles des peticions des seignurs et communs d'Irlande, dount l'execucioun est ordene d'estre fait par briefs et patentes du graunt seal en manera q'ensuit, c'est assavoir. . . One of the resulting instruments is dated 26 April 1380 (Cal. Patent Rolls, 1377-1381, p. 483). 27 Early Statutes Ireland, pp. 484-86. 18

PARLIAMENT

IN

TRANSITION

149

to proceed to England on a similar mission.28 Such messages were presumably frequent at this period, but it is only now and then that any information regarding them has survived. Messengers elected by the lords and commons (dominos et communitatem) of Ireland in a parliament at Dublin waited upon Richard II in September 1396 to report upon the situation, and followed him to Calais, where he had gone for his second marriage.29 Again, we hear of a message brought by the archbishops of Dublin and Armagh from a parliament held in the spring of 1401 and that it dealt with the state of affairs and grievances of Ireland.30 But the only detail that has come down to us is one that struck the chronicler, Adam of Usk, who was present in the king's council when the message was expounded, and that, curiously enough, was a complaint of the fierceness of the Irish mercenaries.31 It was apparently in 1411, at an afforced council at Naas, that the archbishops of Dublin and Cashel were nominated as messengers to the king; but, before they could leave, a letter was received from the king asking for a report on the state of the land since the lieutenant, Thomas of Lancaster, had left. Another council was then called at which the archbishop of Dublin, Thomas Cranley, was again selected to be a messenger in whom the king could have confidence.32 Cranley appears to have been chosen in face of the opposition of Lancaster's deputy, Thomas Butler, prior of Kilmainham, who seems to have earned the enmity both of the Irish privy council and of the Irish peers. The king's council was persuaded of Butler's misgovernment and he was, though with difficulty, superseded.33 Cranley was chosen again at the January parliament of 1417 to present the grievous state of affairs in Ireland, and we have a summary of the 'complaint of the faithful lieges of Ireland' prepared on this occasion, which the chancellor, Laurence Merbury, refused to seal.34 His refusal is understandable when we learn that one of the three heads of complaint to which 28 Cal. Rot. Pat. Hib., p. 1 4 1 , nos. 187-89: for the council, see Parliaments and Councils of Mediaeval Ireland, i. 125-27. 29 Cal. Patent Rolls, 1396-1399, p. 340. We are given the name of only one of the messengers: David Wogan, knight. 30 Foedera, viii. 208; Cal. Close Rolls, 1399-1402, pp. 364, 366. 31 Adam of Usk, Chronicon, p. 64. The date, 30 June, that he ascribes to the meeting of the king's council corresponds with the date of the king's letters, 2 July, cited in the previous note. 32 Fleming's Register, fo. 42b, 43. No. 186 in Lawlor's Calendar appears to be earlier than no. 185. 33 Below, pp. 163-64. 34 Early Statutes Ireland, p. 566.

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IN T H E M I D D L E

AGES

the message could be reduced was the insufficiency of the king's ministers in Ireland. The other heads concerned absentees and the subjection of the clergy to purveyance. 35 In June of the same year a message (the text of which has survived) was sent to the king from an afforced council, sealed, it is interesting to note, by all the clergy and laity present, to the number of more than a hundred. The purpose was to commend to the king the services rendered by the lieutenant, and to depict the evils arising from the failure of the government in England to pay his stipend promptly.36 Defective as our information is, the broad lines on which messages to the king were framed can be perceived. From time to time some particular or personal grievance might be represented, but, in general, they dealt with the recurrent grievances of a people harassed, war-weary, and ill-governed. It is in this period that there occurs the development in methods of taxation that has for its characteristics small national subsidies granted to the chief governor and frequent local subsidies granted at local assemblies. Taxation, it must be remembered, was—with practically the sole exceptions of customs duties and urban tolls and duestaxation for the purposes of war, but the king accepted the principle that any exceptional military operations had to be financed from England. The principle goes back at least to the expedition of Lionel, earl of Ulster and duke of Clarence, and we have seen it illustrated in the Irish career of William of Windsor. 37 The exhaustion of the resources of the English exchequer led to demands for contributions from Ireland. In the closing years of Edward III and the early years of Richard II, the function of parliament, as viewed at least by the king's council in England, was to provide for the good government, safety, and defense of the land, and to relieve the king of the burden of expense falling upon him. Parliament might have other functions but, as part of the mechanism of administration, its main purpose was to provide money for the incessant wars that the long delay in reducing the whole country to order made regrettably, but inevitably, necessary.38 After the administration of Edward Mortimer, earl of March, in 35 Proc. Privy Council, ii. 219-20. The date of the meeting of the king's council appears to be 26 February 1417. 3« Ellis, Original Letters, 2nd Series, i. 54-63. 3T Above, pp. 80-85. 38 See the letter of 29 March 1382 to the nominal lieutenant, the young Roger Mortimer, earl of March (Foedera, iv. 144).

PARLIAMENT

IN

TRANSITION

151

1380-81, there seems, however, to have been a relaxation of this view.39 In so far as there was general taxation in Ireland, the proceeds seem not to have been paid into the exchequer to the use of the king but to have been granted to the lieutenant or justiciar to supplement the finance provided from England.40 And although the earl of March had been successful in persuading the Irish parliament to grant taxes, nevertheless his operations, like the operations of his predecessors, were principally financed from England.41 When the duke of Gloucester was appointed lieutenant in May 1392 operations upon a large scale were again contemplated, and it was agreed that he should receive no less than 34,000 marks from the English exchequer for a period of three years, 19,000 marks for the first year and 7,500 for the second and third.42 His appointment was canceled on 23 July and his expedition came to nothing,43 but already he had received a first installment of 9,500 marks for the wages of himself, his men-at-arms and archers going with him in the king's service to Ireland.44 These figures seem not to have been regarded as exceptionally high, for the duke of Surrey, appointed lieutenant in 1398, was to receive 11,500 marks a year.45 Nor did the English exchequer finance English nobles only, a form of assistance that might perhaps be depreciated as having as much regard for the recipient as for Ireland. There were more direct contributions. Thus Richard II, writing in July 1393 to the Irish privy council, announces that he is dispatching to Ireland the archbishop of Dublin (whom he has appointed chancellor) with a company of men-at-arms and archers and also one of his serjeants-at-arms, with 39 Cf. Cal. Close Rolls, 1381-1385, p. 500: letter of 30 December 1384 to the chancellor. 40 Below, pp. 1 5 4 - 5 5 , 2 3 3 - 3 8 . 41 He was appointed for three years and was promised 20,000 marks, together with £ 1 0 0 for his passage to Ireland: he was to have besides all profits and revenues of Ireland, together with any taxes, tallages and subsidies granted by the clergy and laity (P.R.O., E. 1 0 1 / 2 4 6 / 1 3 : indenture of 28 June 1 3 7 9 ) . He landed at Howth on 1 5 May 1 3 8 0 (Annals of St. Mary's, Dublin, p. 284) and died on 26 December 1 3 8 1 (Parliaments and Councils of Mediaeval Ireland, i. 1 1 5 - 1 6 ) . It appears from a writ of 2 3 December 1 3 8 1 that, up to that date, he had received 10,000 marks and that he had found it necessary to draw 2000 marks from the Irish exchequer, which were set against the second 10,000 marks due from England (B.M., Additional MS. 4798, fo. 2 1 b: this is a transcript of an entry misrepresented in Cal. Rot. Pat. Hib., p. 1 1 6 , no. 2 1 ) . 42 43 44 45

Gilbert, Viceroys, pp. 552-56. Ibid., pp. 556-57. Issues of the Exchequer, p. 247. Ibid., p. 272.

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THE IRISH PARLIAMENT IN THE MIDDLE AGES

2,000 marks to be expended in safeguarding the land. 46 Richard's own expeditions of 1394 and 1399 were, of course, financed on a generous scale from England. 47 With the accession of the Lancastrian dynasty there is a marked change. For a little while, it is true, there was an assumption that the English exchequer could bear expenditure in Ireland on the same scale as under Richard II. Even although Sir John Stanley, the lieutenant in office, was heavily in debt because the king had failed to meet his obligations towards him and he had perforce been granted an ignominious moratorium,48 on 27 June 1401 Thomas of Lancaster was appointed to succeed him with a stipend of twelve thousand marks. 49 Payments, however, were so behindhand that, after nine months' stay in Ireland, the prince had not a penny of ready money left and all his jewels and plate, beyond a few necessaries, had been pledged. His troops had disbanded and his personal attendants threatened to depart. 50 The English exchequer found it impossible to relieve him adequately, and by June 1403 payments were still in arrear by more than £-9,000. 51 But it was not until 1406 that the situation was faced and then, on the pretext that the lieutenant had lost his indenture, a new one was prepared, bearing the date of 1 March 1406, providing for a reduced stipend of 9,000 marks. 52 This stipend was in turn found too onerous and, after Thomas had waived his claim to £.9,000 arrears and had accepted an assignment for another £.3,000 due to him, a fresh agreement was made on 23 July 1408, whereby the stipend was to be again reduced to 7,000 marks from 1 May 1409. 53 In June 1 4 1 0 the assignment of £3,000 had not been met and 7,000 marks were overdue under the new arrangement. 54 In the following year more than 7,500 marks were overdue and still the only prospect of payment was by assignment. 65 It is not surprising that, when Thomas, Graves, Roll of King's Council, pp. 255-57. For the earlier expedition a subsidy was specially granted (Rot. Pari., iii. 330). The cost of the second expedition was met from the ordinary revenues: expenditure had begun as early as January 1398 (Issues of the Exchequer, p. 266). 48 Cal. Patent Rolls, 1399-1401, p. 523. The payments to him, from 17 December 1399 to 10 May 1401, were all by assignment (P.R.O., E. 101/247/6), and he seems to have received no ready cash. 49 Cal. Patent Rolls, I3gg-i40i, p. 507. 50 Royal and Historical Letters, Henry IV, i. 73-76. 51 Cal. Patent Rolls, 1401-1405, p. 269. 52 Foedera, viii. 431-32. 63 Proc. Privy Council, i. 313-18. 54 Ibid., pp. 339-41. 55 Ibid., ii. 15. 46

47

PARLIAMENT

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TRANSITION

153

now duke of Clarence, was succeeded by Sir John Stanley in 1413, the lieutenant's stipend was cut down rigorously to 3,000 marks a year, with an addition of 1,000 marks in the first year of office.®8 Stanley, however, died three months after his arrival in Ireland.57 His successor, John Talbot, lord Furnival (later earl of Shrewsbury), was promised 4,000 marks a year.58 From the beginning he had great difficulty in obtaining payment,59 so much so that in 1417 he decided to leave Ireland and prosecute in person his claim for the arrears due to him. In this he received hearty support from an afforced council of clergy and laity, who commented forcibly that lack of money drove the troops to take food and supplies without payment.80 There is nothing to suggest that the position had improved when Talbot's term of office expired in 1420. To understand the repeated failure of the English government to meet its obligations we must remember the financial background of the past twenty years. One of the reasons for preferring Henry IV to Richard II had been the fallen tyrant's financial extravagance and oppressive exactions, and Henry was in no position to sustain the draining away of English treasure in profitless campaigns in Ireland. Of this truth the commons reminded him in the parliament that met at Westminster on 1 March 1406, when they protested that never had greater sums been granted for the safeguarding of Ireland than at that time and yet the country had been reduced to no better order and put in no better state of defense.61 This protest, or the apprehension that it would be made, was doubtless not without its effect in scaling down Thomas of Lancaster's stipend, though it achieved nothing else, for the royal lieutenant was content to be for the most part an absentee and to leave Ireland to the care of an unsatisfactory deputy.62 If Henry V was in every way, politically and financially, in a stronger position than his father, the French war he had wantonly renewed left him with little to spare for Ireland.88 He showed his 56

Cal. Patent Rolls, 1413-1416, pp. 53-54; Proc. Privy Council, ii. 130-31. Marlborough's Chronicle, s. a. 1413. The date of Stanley's arrival was, however, earlier than here stated (Wood, in Proc. R. Irish Acad., xxxvi. C. 233). 58 Cal. Patent Rolls, 1413-1416, p. 164: the amount of his stipend appears from the references in the following note. 59 Proc. Privy Council, ii. 179, 198-99. 60 Ellis, Original Letters, 2nd Series, i. 54-63. 61 Rot. Pari., iii. 573, no. 33; 577, no. 40. 62 Below, pp. 163-64. 63 That the fourth earl of Ormond fully appreciated this fundamental difficulty is clear from the Libelle of Englyshe Polycye, p. 39. 57

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judgment in selecting Talbot as lieutenant, for Talbot, unlike his predecessors, was an outstanding military commander and, had he been given greater resources, might well have produced order in the land. With what he had he worked wonders in the eyes of contemporary Ireland, and, though his troops were reduced to living on the country, he himself was absolved from blame.64 His own resources were doubtless strained in paying his way as well as he did. 65 The shabby treatment meted out to successive lieutenants by the government in England was not, of course, entirely a personal grievance. When a lieutenant ran short of funds, his troops either had to be disbanded or maintained from some other source. But, even so, we must avoid exaggeration. It remains true that the greater burden of military expenditure in Ireland was borne by the English taxpayer. Even the smallest of the stipends paid, or promised, to a lieutenant was considerable by Irish standards, at least as measured by the Irish taxpayer, whose contributions to his own defense were modest. The practice of appointing a lieutenant who entered into a contract to maintain a military force of a stipulated strength in consideration of an annual payment from the English exchequer introduced a new factor into Irish taxation. On the one hand, the king limited his commitments and, on the other, the lieutenant might well find that he had made an unprofitable bargain and that the resources at his disposal were inadequate for the task he had undertaken. In such circumstances he would look for assistance to the lords and commons in parliament or great council or, alternatively, to the local community of a particular shire. Since any subsidy was to enable the lieutenant to perform the task he had undertaken in the indenture into which he had entered with the king, it was reasonable that the grant should be made to him personally. This system was well established by 1396, when the Irish council informed the king's council in England that the reason for the diminution of the royal revenue was because the commons had made a practice of granting taxes and tallages to the justiciar or lieutenant and that no account was rendered at the exchequer.68 The practice must have been well known to the king's 64

Ellis, Original Letters, 2nd series, i. 54-61. The difficulties of a chief governor who was not financed from England are well brought out in the third earl of Ormond's letters of 18 March 1404: see below, p. 156, n. 74. 6 8 The Irish council write: 'Item, la cause qe les revenues de la terre sont trop petitz et le roy et le roialme et soun counseil n'eiount conusance de les profitz et issues de la terre est pur ceo qe devaunt ces heures meyntfoitz en temps de chescun 85

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council. The indentures with successive lieutenants—the earl of March in 1379,87 Philip Courtenay in 1383,68 and the duke of Gloucester in i393 69 -provided specifically that all profits and issues from Ireland, including taxes, tallages, and subsidies granted by the clergy and laity, should accrue to the lieutenant, who was not required to account for his receipts and expenditure. In 1396 it was stated that subsidies had been granted at the rate of twenty shillings a ploughland or thereabouts,70 but in the fifteenth century the tendency was for the rate to fall, at least for a time, much below this level, nor need the subsidy be in money. In 1401, at a parliament held apparently in December of that year, the commons of Dublin, Meath, Louth, Kildare, and Carlow granted to Thomas of Lancaster a subsidy, paid in kind, of wheat and oats.71 When, on the unexpected departure of Stephen Lescrope (deputy for Thomas of Lancaster) the earl of Ormond was elected justiciar,72 it was necessary to provide him with funds to engage troops. In the afforced council that met at Castledermot to elect him on 3 March 1404 there was granted to him, therefore, by the prelates, magnates, nobles, clergy, and commons of Leinster, Meath, Louth, Waterford, and Tipperary a subsidy at the rate of half a mark a ploughland.78 This rate was exceptionally high by the standards now generally observed, but the circumstances were unusual. The treasury was empty and there was no representative of the lieutenant in Ireland who had command of resources supplied by the English justice ou lieutenaunt esté grauntés plusours taxes et talliages . . . par lez communes de la terre en sustentacioun dez guerres le roy, et Ies chaunceuers ent ount fait lettres patentes as certeines gentz de chescun paiis de lever mesmes les taxes, toutditz ové cest clause ita quod compotas inde coram priore sánete Trinitatis Dubliniensis et tali et tali et non ad scaccarium nostrum reddatur (Lambeth MS. 619, fo. 2 0 7 ) . 67 Above, p. 1 5 1 , n. 41. 68 Analecta Hibemica, ii. 200. 69 Gilbert, Viceroys, pp. 552-54. 70 Lambeth MS. 619, fo. 207: 'Ascun foitz xx. sous de la carrue de terre, ascun foitz plus, ascuns foitz meyns.' 71 Cal. Rot. Pat. Hib., pp. 161-62, nos. 61-65. 72 The earl was not elected 'soldier and governor of the wars,' as is sometimes stated, but justiciar. This is clear from his letter of 18 March 1404 to the king's council, where he says that he was charged with Toffice del justiciarle' (Graves, Roll of King's Council, pp. xxi-xxii). Again, in his letter to the king, of the same date and in similar terms, the earl says that the Irish council 'surmisterount sur moi, le vostxe, voz tres honourables lettres patentez de la govemaunce de vostre dit terre' (B.M., Titus B. xii, pt. i, fo. 30). It is evident that the appointment was in regular form under letters patent in accordance with precedent: see above, p. 32, n. 69. 73 Graves, op. cit., p. 270.

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exchequer. 74 Not only was the initial grant liberal by current Irish standards, but a further subsidy was promised, if necessity arose, during the coming six months—before the end of which, it was doubtless expected, the king would again provide for the administration and defense of the land. 75 A further subsidy was, in fact, required to enable a force of eight hundred foot to be maintained, and this was granted at a great council in August: but the additional cost seems to have been assessed at no more than ninepence a ploughland.76 We should notice the conditions attached to the grant to the earl. The subsidy was to be paid to receivers appointed by the earl and he was to receive the money as 'soldier and governor of the wars,' and not as justiciar. The other condition was that coign and livery should cease so long as the earl was justiciar. 77 The explanation of the second condition is obvious: if the earl was adequately financed, it was unreasonable that he should billet his troops or take supplies without payment. The explanation of the first condition appears to be that the justiciar was a salaried officer who did not normally enter into a contract to conduct war on the king's behalf: 78 to grant a justiciar a subsidy, or one upon so high a scale, might create an undesirable precedent. Later subsidies, granted in different circumstances, were on a much less generous scale than that of 1404. In 1409 the subsidy granted to Thomas of Lancaster was at the rate of one shilling a ploughland, with two shillings and sixpence in the mark from the clergy.79 Of the two subsidies granted to Lancaster's deputy in 1410 and 1412, the first 7 4 So Ormond informs the king in his letter of 18 March: 'et riens en vostre tresorye pur le dit charge susteigner, a graunde disease et anientisement de moy et moun simple estate." The letter to the king's council is in similar terms. The earl therefore asks to be replaced as soon as possible, obviously by a deputy acting for the lieutenant, if not by the lieutenant himself, who was still nominally responsible under his original commission and indenture: above, p. 152. 7 5 Graves, op. cit., p. 271. 76 Cal. Rot. Pat. Hib., p. 178, no. 77 (c). This entry relates only to the county of Dublin, but presumably the subsidy was levied generally. 7 7 Graves, op. cit., pp. 271-72. 7 8 T h e case of Robert Ashton appears to be exceptional (above, pp. 81-82). He was appointed before the system had established itself under which a lieutenant, who did not discharge the duties of his office in person, appointed a deputy and the title of justiciar was given (instead of the older title of custos) to whomsoever the Irish council elected to carry on the government in an emergency. 7 9 Marlborough's Chronicle, s. a. 1408. The rate of tax is given in Fleming's Register, fo. 20b: Calendar, no. 97.

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was at a slightly higher, and the second at a lower, rate.80 The total amount of the subsidies does not appear to be recorded, but that of 1410 may have been eight hundred marks,81 while that of 1412 seems to have been four hundred marks,82 the amount granted to John Talbot, as lieutenant, in 1416. 83 In 1419 the amount of the subsidy fell to three hundred marks.84 These figures are, of course, maxima, which would not be realized in actual collection.85 To get them in their proper setting they must be placed beside the local subsidies which were granted with some frequency. We cannot obtain a complete picture, because our sources of information are fragmentary, and we cannot hope to do more than supply examples. In 1400 there are recorded a subsidy of unstated amount from the county of Meath86 and a subsidy at the rate of ten shillings a ploughland from the county of Louth.87 In 1402 the clergy of Armagh granted ten marks from their spiritualities88 and the clergy of Meath a subsidy of wheat and oats from their temporalities:89 these are trifles and we may well suspect that there were corresponding, and much more substantial, subsidies from the laity of these counties.90 In the same year the commons of Kildare granted such an amount as would provide two hundred and sixty kerns for service against the Irish enemy.81 Again, in 1412 80 In 1410 the contribution of the clergy of Louth was 17 marks as compared with 15 marks in 1409. In 14x0, although the rate was two shillings in the mark on spiritualities, on this occasion the temporalities of clergy, like lay fees, were assessed at a shilling on the ploughland (Fleming's Register, fo. 230: Calendar, no. 108). In 1412 the total contribution of the clergy was 8 marks 11s. lid, and the rate was elevenpence in the mark on spiritualities, a shilling on the ploughland, and threepence in the pound on chattels (Fleming's Register, fo. 48??: Calendar, no. 205). 81 This is the relation between the contribution and the total subsidy suggested by the corresponding figures for 1420-21 (Parliaments and Councils of Mediaeval Ireland, i. pp. xxxii-xxxiii). 82 In 1421 the contribution of the Louth clergy to a subsidy of 400 marks was 8 marks 8s, gd. (loc. cit.). S3 Marlborough's Chronicle, s. a. 1416. 84 Ibid., s. a. 1419. 85 See Parliaments and Councils of Mediaeval Ireland, i. pp. xxxiv-xxxvi, for the question generally of assessment and collection. «6 Cal. Rot. Pat. Hib., p. 158, nos. 114-16. 87 Ibid., no. 119: the carucage was accompanied by a grant of forty pence in the pound upon chattels. 88 Ibid., p. 166, no. 253. 89 Ibid., p. 166 (Close Roll Henry IV), no. 14. 90 Cf. ibid., p. 230, nos. 120-22, where details are given of a grant in 1423 of £.40 from the commons of Louth and 9 marks from the clergy. 81 Ibid., p. 166, nos. 242-43.

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the county of Wexford and the towns of Ross and Wexford granted three hundred marks to Lancaster's deputy to be employed by him on operations within the county.92 These particulars show at least that counties not only granted subsidies at a high rate of assessment but that, on occasion, one county alone might grant an amount little inferior to what might be expected from the whole extent of territory controlled by the king's government in Ireland. The manner in which local subsidies were granted is somewhat obscure. Irish particularism was such that a group of counties, or even a single county, might make a grant in parliament or great council; but, as a general rule, it would seem that in the fifteenth century local subsidies were granted at specially convened meetings of the county court attended by representatives of the king. Thus we are told that the subsidy from the county of Meath in 1400 was made at a royal council at Skreen.93 The nature of such a council is explained by the practice, common at this period, for the government to send commissioners to a county in order that provision should be made for its better government, a term that obviously is intended to cover the preservation of the king's peace and defense against English rebels and Irish enemies, as the phrase went. Thus, in 1403, the chancellor presided over an assembly in the county of Dublin where six men were elected for this purpose and these six were, in turn, formally commissioned to convoke the magnates, gentry, and commons of the county.04 A similar commission, headed by the archbishop of Armagh, was directed to convoke the clergy, magnates, gentry, and commons of Louth. 95 In Meath, in 1412, a commission of six was appointed with instructions to summon two representatives from every barony to provide for the good government of the country.96 It was a necessary consequence that money must be supplied and that the county must supply it. Not only may we reasonably infer this, but we find the connection expressly stated.97 It was an inevitable corollary that the application of the subsidy should be restricted, as when it was stipulated that the three hundred marks granted by Wexford in 1412 should be expended locally.98 With these explanations, requisite for 92

Ibid., 3 Ibid., 94 Ibid., 9 « Ibid., 96 Ibid., 97 Ibid., 98 Ibid.,

9

p. 201, no. 113. p. 158, no. 114. p. 178, no. 85. no. 78. p. 201, no. 124. p. 230, no. 120. p. 201, no. 113.

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the proper understanding of the relation between parliamentary taxation and Irish finance as a whole, we may return to the main problem of the functions of parliament. W e have already employed the petitions presented in 1 3 9 3 to illustrate the principal activity of parliament in the closing years of Edward III and the early years of Richard I I . " When, in the early years of Henry V I , w e again get some substantial material for reconstructing petitory procedure in parliament, it is plain, as w e shall see, that, while petitions are cast in the traditional mould, the machinery for dealing with them has been radically modified. In 1 3 9 3 the difficulty is to distinguish between a petition presented to the justiciar and council in parliament and a petition presented to the justiciar and council on other occasions. The exceptions are rare which disclose that parliamentary petitions come before the lords spiritual and temporal and that they have a voice in any decision that may be made. As for the commons, while the petitions that they themselves present in parliament are doubtless based upon grievances suffered by individuals, they appear to be playing, in 1 3 9 3 and earlier years, no part whatever in expediting the petitions of those who seek in parliament a personal remedy for a specific grievance or have some personal grace to request. But, within twenty years or so, the commons are evidently beginning to interest themselves in personal petitions. Among the detailed charges presented to the king's council against John Talbot after the termination of his lieutenancy, which had extended from 1 4 1 4 to 1419, mention is made of one John Tanner, who had been imprisoned, without any indictment being brought against him, and had, further, been put to ransom and despoiled of his goods. 'Regarding this grievance,' it is alleged, 'the said John Tanner sued for a remedy by petition to the lieutenant in a great council at Naas, but could not obtain it, because the speaker in the council, Maurice Stafford, was ordered by his lordship not to speak of the said petition.' 100 It may well be that the right of the commons to take up individual, as distinct from public, grievances was not yet established and that the lieutenant was not acting unreasonably in overruling the speaker; but the allegation is significant, for it shows that petitioners were already looking to the commons for help in remedying their 99

Above, pp. 88-90. 100 Proc. Privy Council, ii. 49. The council would appear to be that to which the archbishop of Armagh sent proctors and which appears to have been summoned for 1 8 May 1 4 1 6 (Fleming's Register, fo. 63: Lawlor's Calendar, no. 2 5 1 ) .

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grievances instead of going direct to the lieutenant and council. There can be little doubt that we have here another indication of the influence of English practice upon Irish parliamentary procedure. We use the phrase 'parliamentary procedure' advisedly, for evidently the constitution of great councils has been evolving to the point at which they were almost indistinguishable from parliaments. And the great council in which John Tanner presented his petition is unmistakably one to which representatives of the commons were summoned and in which they spoke, before the lieutenant and lords, through the mouth of their speaker. Indeed, this is the first reference to a speaker of the commons that has come down to us, and the existence of the office in Ireland at an earlier date is a matter of inference. Great or afforced councils continued, however, to be summoned which did not approach so closely in constitution to a parliament; they were less comprehensive or avoided elections on account of the urgency of the occasion and the brevity of the summons. Of such assemblies we have already spoken at some length and, for the most part, we lack details which would enable us to do more than repeat generalities that are as true of the period we are now treating as of the period preceding. One gap in our information we must especially regret, and that is the lack of any description of the parliament and the afforced council held by Richard II during his visit in 1394-95. Beyond the bare facts that the parliament met at Dublin on 1 December 1394 1 0 1 and that the council met at Kilkenny on 19 April 1395, 1 0 2 we know very little. One act of the parliament has survived, prohibiting trade with hostile Irish; 103 but of the happenings at the council we know nothing, nor do we know why the writs for a second parliament at Dublin were revoked and this council substituted,104 to which only four bishops, three earls, and a handful of town representatives were summoned. 105 Of similar composition was a council we have already mentioned, 106 that called in 1 4 1 1 to consider the reply to the king's request for a report on the state of Ireland after the departure of the lieutenant, Thomas of Lancaster. It is safe to deduce that those attending the gathering, or, at least, the most prominent among them, were those 101 Curtis, Letters from Richard II in Proc. R. Irish Acad., xxxvii. C. 285; Early Statutes Ireland, p. 498; Cal. Rot, Pat. Hih., p. 154, no. 41. 1 0 2 Lynch, Legal Institutions, p. 3 3 3 ; Cal. Rot. Pat. Hib., p. 155, nos. 68-71. 103 Early Statutes Ireland, p. 498. 104 Proc. Privy Council, i. 56. 1 0 5 Lynch, Legal Institutions, p. 3 3 3 ; Cal. Rot. Pat. Hib., p. 155, nos. 68-71. 106

Above, p. 149.

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who appended their names to the letter sent from the council to the king: they were the archbishop of Armagh, the bishop of Ferns (then chancellor), the bishop of Meath, the earl of Kildare, three knights, the mayors and bailiffs of Dublin and Drogheda, and three prominent men of the kind often described as gentry.107 Another assembly we should not leave unremarked is the afforced council held on 26 June 1417 (where, we are not told), which was representative of the four counties of Dublin, Kildare, Louth, and Meath. There were present the bishop of Kildare, the custodians of the spiritualities of Armagh (then vacant), six abbots, sixteen priors, and the archdeacons of Kildare and Louth, four barons, two knights, the principal officers of Dublin and ten other towns, the sheriffs of the four counties, Christopher Plunket, and fifty-one other esquires. There were well over a hundred present and, despite some notable absentees among the clergy, it was a representative assembly, though with no elective element.108 So far as we can learn, its purpose was to commend to the king the services rendered to Ireland by the lieutenant and to support his claim for the settlement of the arrears due to him. Presumably also it was a formal leave-taking before his departure for England. Of the message sent from the council to the king we have already spoken.109 Our immediate interest is to observe that, despite the evolution of great councils which, in composition, organization, and function, resembled parliaments, the older type of afforced council still persisted, at least for certain limited purposes. 107 Fleming's Register, fo. 43: Lawlor's Calendar, no. 186. The date, OctoberNovember 1 4 1 1 , ascribed to this letter, cannot be far out. Robert Mountain, bishop of Meath, died on 24 May 1412. No. 186 appears to precede no. 185, as stated above, p. 149, n. 32. 108 Ellis, Original Letters, 2nd series, i. 61-63 109 Above, p. 153.

12 THE PRIVY COUNCIL IN T H E FIFTEENTH CENTURY

E F O R E we continue our description of parliament in the fifteenth century, it will be well to return for a while to the privy council. We have already said that the effectiveness of the council depended upon the chief governor, and, with some few exceptions, the chief governors in the fifteenth century were able men. The most remarkable of them, John Talbot, his brother Richard, archbishop of Dublin, the fourth earl of Ormond, and the seventh and eighth earls of Kildare, were in office for considerable periods. 1 That Ireland suffered from lack of governance was due not to their incapacity, but principally to two other causes: personal feuds and the inability of the king to provide the men and money necessary to restore royal authority. The Butlers, whose head was the earl of Ormond, were embroiled first with the Talbots and, in the latter half of the century, with the Geraldines, whose head was the earl of Kildare, and these quarrels were made worse by their confusion with the Wars of the Roses, the Butlers identifying themselves with the Lancastrians and the Geraldines with the Yorkists. Yet we must remember that, with its turmoil and its intestinal strife, Ireland was of the pattern of Western Europe: if its miseries were greater than those of England, they were less than those of France, but, having much fewer resources, Ireland was slower in its recovery, even under the resolute government of the Tudors. And undoubtedly historians have exaggerated the feebleness of the Irish government and the disorder in the land, the more so since they have suggested a contrast with some ideal state rather than with the grim realities of contemporary England, Scotland, and France. We shall need, in the appropriate place, to amplify these generalities with some details, but, for the moment, let this background suffice against which to set the government of Ireland in its strivings and shortcomings.

B

The fifteenth century opened inauspiciously. England was governed 1

The dates are given by Wood in Proc. R. Irish Acad., xxxvi. C. 233-38 and in Handbook of British Chronology, pp. 1 1 3 - 1 4 . Gerald fitz Maurice is sometimes termed the seventh earl of Kildare and his father the sixth. 162

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by a usurper, seated precariously on an uneasy throne, with few resources to spare for Ireland. With the poorest of judgment, Henry IV not only created his second son, Thomas of Lancaster, lieutenant of Ireland, but sent him, a child barely in his teens, to rule the land.2 His term of office lasted twelve years, during which he visited Ireland twice. His first visit, in 1401, lasted for two disastrous years; his second visit, in 1408, for less than twelve months. On leaving in 1409, he committed the government to Thomas Butler, prior of Kilmainham, who proved unequal to the situation. Complaints of Butler's incapacity reached the privy council in England, and the Irish council were asked for advice. Before the letters arrived an afforced council had already met, at which it was decided to send the archbishops of Dublin and Cashel to England, but this decision was countermanded and a further meeting called at which the archbishop of Dublin, Thomas Cranley, alone was chosen to reply personally to the king on behalf of the Irish council and their supporters.3 It is clear—and this is the significant fact—that the council were acting in opposition to Butler, the lieutenant's deputy, for the king was warned by the archbishop of Armagh against listening to the representations of any messengers not sent by the Irish council and his faithful Irish lieges: these other messengers, the king was told, would be seeking their own private ends without care for the common weal.4 It is significant, too, that the deputy's opponents included three archbishops, the bishop of Ferns, who was then chancellor, the bishop of Meath, the earl of Kildare, a number of lesser barons, and the representatives of Dublin and 2 On his appointment on 27 July 1401, he was three months short of thirteen. He arrived in Ireland on 1 November. The dates of his arrivals and departures are given by Wood, ut supra. 3 Above, p. 149. 4 Cranley, the king is told, 'de consensu et voluntate consilii vestri in Hibernia et omnium fidelium ligeorum vestrorum ibidem nuncius est missus vestre serenitati potentissime ad premissa miserias et dispendia declaranda et ad remedium oportunum, expeditum et salubre persequendum penes eundem, cui, si placet, reiectis aliis non per consilium nec ligeos terre vestre Hibernie electis sed comodum singulare sec tail tibus et de republica et comodo communi non curantibus, auditum benignum et affectatam salubrem expedicionem pro honore vestro et corone vestre ac comodum fidelium ligeorum vestrorum concedere dignetur vestra maiestas serenissima. . . (Fleming's Register, fo. 42b: Lawlor's Calendar, no. 185). Again, when in 1430 a letter of grievances in indented form was sent to the council in England, it was requested 'to gif none affiance to any certificate or other message contrarie to this sende . . . For if it happe any suche for to come, it comes for parcialte and for syngular affiaunce and not for the comune profite of all the popull of the londe abovesaid' (Harris Collectanea, iv. 314: from Close Roll, 9 Henry VI).

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5

Drogheda. Apart from the few magnates who were themselves members, the council could evidently command impressive support, and the result of Cranley's mission was that Butler was commanded to appear in person before the king before Michaelmas 1412. 6 Since he treated this order with contempt, the chief justice of the king's bench in Ireland was instructed to repeat the order by proclamation, requiring Butler to appear before the king by 9 February 1413. 7 He seems to have paid no more attention to the second order than to the first: he certainly remained in office until the arrival of a new lieutenant, John Stanley, in September 1413. 7a We have no knowledge of Butler's side of the story, but he must have enjoyed the support of the youthful absentee lieutenant. The rights and wrongs of the quarrel would not, in any case, affect the lesson this episode teaches of the coherence of the members of the council and of their capacity, when occasion arose, for acting independently of the chief governor and in conflict with him.8 The same lesson is enforced by the co-existence, during the second visit of Thomas of Lancaster, of the lieutenant's council and the king's council of Ireland:9 doubtless the members of both councils might sit together, but the councils maintained a separate identity. At the same time the Irish council did not provide an alternative government: it was not an oligarchy. Throughout the fifteenth century the council was predominantly ministerial, and the inner circle was chiefly composed of lawyers. In 1423 the lieutenant's council, sitting in solemn session on a question of great moment, was quite plainly envisaged as consisting of the justiciar, the chancellor (the archbishop of Dublin) and the treasurer, the archbishop of Armagh, the chief justice and another of the king's bench, the chief baron and two others of the exchequer, the keeper of the rolls and the king's serjeant-at-law.10 This inner circle came to be restricted to seven: the chancellor, the treasurer, the chief justices of the two benches, the chief baron of the exchequer, Fleming's Register, fo. 43: see above, pp. 160-61. At some time after the creation of Thomas of Lancaster to be duke of Clarence on 9 July 1412, the king's council considered the 'mauveise governance' of his deputy and arranged to discuss the matter with Clarence's council (Proc. Privy Council, ii. 35). The result was a summons to Butler, dated 1 August (Cal. Close Rolls, 1409-1413, p. 286). 7 Ibid., p. 401. 7 a Wood in Proc. R. Irish Acad., xxxvi. C. 233. 8 For a further illustration of this point, see below, Appendix VII. 9 Cal. Archbishop Men's Register, p. 236. 1 0 Below, Appendix VII. 5

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11

the master of the rolls, and the king's serjeant-at-law. Only the offices of chancellor and treasurer were wont to be occupied by spiritual or temporal peers. The privy council might be strengthened by other peers, but these were never numerous. Though one or other of the three earls played a great part in Irish government for many years in the fifteenth century, it was hardly ever possible to command the services of more than one. The earldom of Kildare was in abeyance for more than twenty years after the death of the fifth earl in 1432. The sixth earl of Desmond (1421-62) had no inclination for affairs of state. In 1445 he was accorded leave to appoint a proctor whenever he could not appear in person at parliaments or great councils.12 In the following year, in company with three Irish chieftains, he was ravaging and burning Kilkenny and Tipperary, not sparing churches or women and children: 'since the conquest of this our said sovereign's land of Ireland to this day the said counties took never such rebuke of our sovereign lord's Irish enemies as they did by the said earl of Desmond.*18 The seventh earl of Desmond, who acted as deputy lieutenant in 1463-67, was attainted and executed in 1468,14 and his successor was estranged from the king and the government.15 After the death of the fourth earl of Ormond in 1452, his successors had little personal interest in Ireland16 and were, in any case, under sentence of attainder from 1461 to 1474. Of the other peers, one or two might be retained of the council, from time to time, with fees regulated according to their dignity. Thus William fitz Thomas, prior of Kilmainham, was appointed in 1429,17 and John Swayne, archbishop of Armagh, in 1430. 18 Richard Talbot, archbishop of Dublin, appears to For these, see below, pp. 168-69. Cal. Patent Rolls, 1441-1446, p. 358. 1 3 The facts are set out in representations to the king's council from the two counties (P.R.O., E. 101/248/15). That from Tipperary (no. 1 ) , from which the quotation is taken, is undated; that from Kilkenny (no. 2) is dated 24 January 1447 and further fixes the date of Desmond's foray as a little before the arrival of the earl of Shrewsbury as lieutenant—late October or early November 1446 (Wood in PTOC. R. Irish Acad., xxxvi. C. 235). 1 4 For the attainder, see Slatutes, 1-12 Edward IV, pp. 464-66. 15 Letters and Papers, Richard III and Henry VII, i. 67-70, 73-74. 1 6 The fifth earl was, however, appointed lieutenant on 12 May 1453, with John Mey, archbishop of Armagh, as his deputy (Cal. Patent Rolls, 1432-1461, pp. 82-83, 102). Mey was acting in January 1454, but was soon after replaced by Edward fitz Eustace as deputy of the duke of York (below, pp. 175, 241-42). 1 7 From 22 December, with an annual fee of 20 marks (P.R.O., E. 101/248/7, 8, 9; B.M., Harley Charter 42A. 76). He had acted as justiciar in 1422 (Wood in Proc. R. Irish Acad., xxxvi. C. 234). 1 8 At a fee of £ 2 0 a year (Register of John Swayne, p. 1 2 1 ) . 11 12

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have remained of the council when not in office as justiciar or chancellor, 19 and his successor, Michael Tregury, was also a paid member. 20 Richard fitz Eustace was a member in 1 4 4 2 and 1444 2 1 Christopher St. Lawrence, lord of Howth, was appointed to the council in 1454 2 2 and Nicholas, prior of Connell, in 1461. 2 3 Robert Barnewell, on being raised to the peerage as baron Trimbleston in 1462, was retained as a member of the council. 24 But thereafter our sources of information fail us, and it may be that the practice of appointing paid members of the council came to an end. The number of members present might be increased in other ways. As in the fourteenth century, ministers not of the inner circle might attend, notably the puisne judges, 25 and barons of the exchequer, 26 sometimes the king's attorney, 27 while, under Henry V I I , a master in chancery was appointed to the council. 28 Occasionally men who were neither ministers nor peers were appointed for a brief time to the council. Thomas of Lancaster had attached to him Sir Edmund Noon, steward of his household,29 Anthony St. Quentin, a clerk who became 19 20 21

146.

22

Betham, Early Parliaments of Ireland, pp. 360-61. Foedera, xi. 325-26. His fee was also £ 20. Graves, Roll of King's Council, pp. 288, 295, 300; Cal. Ormond Deeds, iii.

His fee was £.10 (Statutes, Henry VI, p. 374). His fee was £ 10 (Cal. Rot. Pat. Hih., p. 268, 110. 1 1 ; Lascelles, Liber Munerum, ii. 219). 24 His fee also was £ 1 0 (Cal. Patent Rolls, 1461-1467, p. 188). 25 Betham, op. cit., p. 361: Statutes, 12-22 Edward TV, p. 10; Analecta Hibemica, x. 27; Graves, op. cit., p. 3 1 1 ; Cal. Ormond Deeds, iii. 146. 28 Graves, op. cit., pp. 288, 295, 3 1 1 ; Cal. Ormond Deeds, iii. 146. 27 Statutes, 12-22 Edward IV, p. 10. We may also observe that Stephen Roche, the king's attorney, was appointed on 1 July 1441 in the Great Council at Naas to convey a statement of grievances to the king and council in England (Harris Collectanea, iv, 336-39: from Chancery Roll, 19 Henry VI). The original document, containing the articles of grievance, still survives in the Public Record Office in London (E. 101/248/16, m. 1 ) , and a transcript is to be found in the Harris Collectanea, loc. cit. Roche was further authorized by the deputy-lieutenant and council in Ireland on 20 August 1441 to bring to die notice of the council in England an additional itemized list of complaints regarding the legal status of Englishmen born in Ireland, the utter inadequacy of revenue, customs dues, and the failure of Cork and Limerick to pay their fee-farms. Both the letters of 1 July and 20 August were attested by the deputy lieutenant, and lords spiritual and temporal, and the commons (cf. below, p. 236, n. 64). 28 Cal. Patent Rolls, 1485-1494, p. 473. In appointing James Alleyn, who was dean of St. Patrick's, to be master in chancery it was doubtless intended to raise the status of the office, and this is marked by his simultaneous appointment to the council. 29 Cal. Patent Rolls, 1399-1401, p. 510, 1401-1405, pp. 2, 36; Cal. Rot. Pat. Hib., p. 164, no. 174. 23

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a prebendary of St. Patrick's cathedral,30 and Jenico Dartas, a Gascon who had made a career in Ireland: 31 these three, with the chancellor and the treasurer, seem to have been the principal members of Lancaster's council.32 Sir Stephen Lescrope, who was in actual command of the lieutenant's forces, was also a member,33 as was presumably Sir John Stanley, the former lieutenant, who returned to Ireland for a time after his supersession by Lancaster.34 But these arrangements were altogether exceptional and were devised in the extraordinary circumstances of the appointment of a prince of tender age to be chief governor, and it may be that the extraordinary members were appointed to the lieutenant's and not to the king's council. We may note, however, Thomas Strange, who came to Ireland in 1428 with the lieutenant, John Sutton,35 and appears as a member of the council in that year.36 He did not sit there as a special representative of the king and it was perhaps intended from the first that he should be given office in Ireland:37 when Sutton left Ireland, late in 1429, he appointed Strange as his deputy,38 and in February 1430 the king appointed him treasurer.39 Special messengers, however, continued to come from the king from time to time—Robert Manfield, usher of the 30

Cal. Patent Rolls, 1401-1405, p. 222; Cal. Rot. Pat. Hib., p. 1 6 1 , nos. 29, 47. Curtis in Journal R. Soc. of Antiquaries of Ireland, briii. 182-205. It is possible that Jenico derived his name from Artois, but it seems indubitable that he was a Gascon. 3 2 Hingeston, Royal and Historical Letters, Henry IV, i. p. 76. 33 Cal. Patent Rolls, 1339-1401, p. 507; Cal. Rot. Pat. Hib., p. 162, no. 84; Hingeston, op. cit., pp. 85-89, where, however, the text of the letter of 18 February 1402 is inferior to that given in Archaeologia, xx. 249-50. 34 Cal. Patent Rolls, 1401-1405, pp. 38, 183. 38 Cal. Patent Rolls, 1422-1429, pp. 471, 476. 36 Cal. Rot. Pat. Hib., p. 249, no. 24. He was sent to England with Henry Fortescue, chief justice of the king's bench, as a messenger from the parliament of November 1428 (Betham, Early Parliaments of Ireland, pp. 353, 358). 3 7 On 12 July 1429 he was appointed constable of Wicklow Castle by the king (Cal. Patent Rolls, 1422-1429, p. 543). 3 8 Wood in Proc. R. Irish Acad., xxxvi. C. 234. 39 Cal. Patent Rolls, 1429-1436, p. 49. It was doubtless on Strange s taking up this office on 8 April (P.R.O., E. 364/65 [9 Henry VI], m.B.) that Richard Talbot was appointed justiciar, presumably on the same day (cf. Wood, op. cit., pp. 23435). Strange, as treasurer, together with Richard Wellesley, was appointed in the great council at Dublin in September 1430 to take a message to the council in England, explaining the parlous condition of affairs in Ireland and the need for immediate assistance, especially by the provision of 'a notabull and manfulle chiefetayne, havying sufficiante of gode to pay his sowdiers and the trewe liege popull' (Harris Collectanea, iv, 314: from Close Roll, 9 Henry VI). 31

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king's chamber, in 1444, 40 Sir Gilbert Debenham in 1473, 41 Alfred Cornburgh, squire of the body, in 1477, 42 Henry Wyatt and Thomas Garth, the king's commissioners, in 149343—and though what we learn of them concerns their participation in afforced councils and parliaments, there is no doubt that they spent much time with the privy council. Whatever influence the non-ministerial members of the council may have exerted in the early part of the fifteenth century, it is plain that, by the reign of Edward IV, they no longer took an active part in its proceedings: otherwise there could be no meaning in the question raised in Lord Grey's parliament of 1478, whether the election of a justiciar was to be solely 'par sept personnes del counseill le roy.' It was then decided that any such election should be made by the council as a whole, together with the archbishops of Dublin and Armagh, the bishops of Meath and Kildare, the mayors of Dublin and Drogheda, and the lords, spiritual and temporal, of parliament of the four counties of Dublin, Meath, Louth, and Kildare, duly summoned by writ. Any decision was to be made by the majority of those present.44 There is every reason to suppose that this provision was intended to strike at the influence of the earl of Kildare, and it may well be that the virtual exclusion of non-ministerial members from the council had been the work of the seventh earl and was devised to enhance his own power. He was, as we have seen, without a rival of equal rank in Ireland: he had been justiciar, or deputy lieutenant, for more than ten years between 1454 and 1475 (the precise dates are uncertain) and again early in 1478. 45 On his unexpected death on 25 March 1478,46 the council had elected his son, the eighth earl, to be justiciar 40

Graves, Roll of King's Council, pp. 305, 309. Sir Gilbert Debenham, accompanied by James Norris, David Keting, and Sir Robert Bold, appears to have arrived in Ireland as the king's representative late in 1473: the 'instructions' from the three estates and council, given to Debenham for communication to the king, seem undoubtedly to have been prepared in the parliament that met at Dublin on 18 March 1474. These instructions have been printed by Bryan, Great Earl of Kildare, pp. 17-22. Debenham was created chancellor on 5 August 1474 and in September returned to Ireland in command of a force of 400 archers engaged on behalf of the duke of Clarence, the nominal lieutenant (Cal. Patent Rolls, 1467-1476, pp. 467, 474, 491; Analecta Hibemica, x. 30, 46-47). 42 Foedera, xii. 44. 43 Analecta Hibemica, x. 88-89. 44 Statutes, 12-22 Edward IV, pp. 660-62. 43 Wood in Proc. R. Irish Acad., xxxvi. C. 236-37. 48 The accepted date of the earl's death, 25 March 1477, is inadmissible since he attested letters patent on 2 March, 17 Edward IV (Statutes, 12-22 Edward IV, p. 804). There is no question, however, of the day: the year onlv needs correcting. The correct date is given by the Four Masters, s.a. 41

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in his place, and it seems evident that, on this occasion, the council had been limited to the group of seven ministers. It was on a change of governor, and under the influence of a deputy lieutenant hostile to Kildare, that the statute of 1478 had been enacted; but in the following year the statute was quashed by the king who, at the same time, issued detailed instructions for the government of Ireland. Nothing, he declared, that was considered and decided in council was to be taken as a definitive act of council unless the lieutenant or his deputy gave his assent to it by the advice of the 'more part' of the king's council: and the more part' is defined as those seven ministers whom we have mentioned.47 Their dominant position was therefore recognized and established by the king. Their essential function in the constitution in the latter part of the fifteenth century is illustrated by an act that the earl of Kildare, as deputy lieutenant, procured in 1485.48 This assured to the seven ministers the tenure of their offices for life, should the land be left without a governor or, in plainer words, in the event of a change of dynasty, with the consequence that the authority of the lieutenant, and therefore that of his deputy, would cease and, to fill the void, a justiciar would need to be elected. Since Kildare controlled the seven and the seven controlled the council, he provided for his own election as justiciar and the continuity of his own power until he could make terms with the new king, if such there should be. The assurance to the ministers of tenure for life, it is perhaps desirable to remark, must not be taken literally: it had not been uncommon in the recent past to grant a life-tenure of offices, but it was easy to revoke such grants by statute.49 All that Kildare intended or desired was to tide over an expected crisis. Under the masterful rule of the great earl of Kildare, which lasted without interruption from 1479 to 1492,80 the council was doubtless unanimous and of one mind with the chief governor. When he made his own brother chancellor, he was prepared to risk even the king's displeasure by resisting, on ingenious pretences, the intrusion of the 4 7 Gilbert, Viceroys, p. 599, as corrected in Deputy Keeper's Report, Ireland, lvii. 569. 4 8 See Appendix X. 4 9 An act of 1472 had empowered the seventh earl of Kildare to grant offices for life (Statutes, 12-22 Edward IV, p. 12), and certain of the ministers named in the act of 1485 had been granted patents accordingly: fitz Eustace as chancellor (ibid., pp. 22-24), Dowdall as master of the rolls (ibid., p. 60), Bermingham as chief justice of the king's bench (ibid., p. 340). But such grants were not good against an act of resumption, and fitz Eustace, for example, had been removed from his life-office of chancellor (ibid., p. 680). 8 0 His later period of office, 1496-1513, is beyond our purview.

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royal nominee, Robert St. Lawrence, lord Howth. 51 But earlier chief governors had not been so fortunate as to enjoy the undivided support of the council. Roland fitz Eustace, lord Portlester, chancellor in 1478, would hold no communication with lord Grey, the new deputy lieutenant, and refused to seal a message from Grey's parliament to the king. 52 An earlier chancellor, Laurence Merbury, had likewise refused to seal a message from the parliament in 1417, when John Talbot was lieutenant.53 The seventh early of Kildare had been troubled by Sir John Cornwalsh, chief baron of the exchequer. Whatever the cause of enmity, at a meeting of the council at Dublin on 20 March 1472, when there were many present besides the principal ministers, Cornwalsh had maliciously, riotously, and evilly reviled and rebuked Kildare, with unhonest and foul language, such as is not fit to be repeated, whereby the honor and state of the king were gravely defamed and dishonored. Nor did Cornwalsh stop at this, but he had then gone into the city and exhorted and conspired with some of the citizens to rebel and raise insurrection against the deputy.54 The truculent minister was deprived and suffered forfeiture for a few weeks, but was then pardoned by Kildare and restored/'"' Such extreme manifestations of discord were doubtless rare, although, during the long struggle for mastery between the fourth earl of Ormond and the Talbots which went on for nearly thirty years, Ormond had many conflicts with the chancellor and the treasurer, which continued even after the main contest had been appeased. 5 " These two ministers, holding their offices direct from the king, could not, in principle, be removed by the chief governor, even when they were in open conflict with him.57 He might then need to resort to stratagems or the high hand to rid himself of opposition at the council board. Though Ormond may have been sometimes unreasonable and sometimes unscrupulous, the fault could not have been wholly his. Sir John Sutton, himself no partisan, had, when lieutenant in 1428-29, See Appendix X. '' Statutes, 12-22 Edward IV, p. 662. r3 ' Early Statutes Ireland, p. 566; above, p. 149. r>4 Statutes, 12-22 Edward IV, p. 10. 55 Ibid., p. 136. The act of forfeiture was passed in the session beginning 4 December 1472, but was repealed in the next session beginning 11 March 1473. 5 8 Ormond seems to date the beginning of the quarrel 'since ever the lord Talbot came in to Ireland [as] the king's lieutenant' (Irish Hist. Studies, ii. 3 9 3 ) : Talbot first landed on 10 November 1414 (Marlborough's Chronicle, s.a.). The quarrel was ended by a marriage: below, p. 202. 5 7 For details, see Irish Hist. Studies, ii. 378-79. 51 2

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driven the treasurer, Nicholas Plunket, out of Ireland;58 and the attempts by the chancellor to deprive Ormond of the control of the great seal and to hamper the administration followed exactly the pattern of earlier and later quarrels in which the earl was not concerned. The personal animosity of Ormond and John Talbot was the expression, rather than the cause, of the spirit of strife, the mal du siècle that afflicted so many lands and so many great men. The merits of the protagonists were greater than their faults. Archbishop Swayne, who was as independent and shrewd an observer as anyone could be in Ireland at that time, paid equal tribute to each. 'In good faith,' he wrote, 'the enemies dread them both more than they do all the world, I trow, for, if any of them both were in this land, all the enemies of Ireland would be right fain to have peace.' Yet it was they who were 'the cause of the great harm that has been done to the king's liege people in this land. . . . When my lord Talbot was in this country, there was great variance between him and my lord of Ormond, and yet they be not accorded. And some gentlemen of the country be well willed to my lord of Ormond: they hold with him and love him and help him and be not well willed to my lord Talbot nor to none that love him. And they that love my lord Talbot do in the same manner to my lord of Ormond. So all this land is severed.' The remedy was patent: a sincere and lasting accord between these two lords.59 It was easy for the primate to prescribe: time was to prove the remedy to be almost beyond reach. And continued dissension and conflict were fatal to efficient administration, even if there had been no other handicap. Nevertheless, in some fashion the functions of government were discharged. Troops were raised, taxes levied, in the manner we shall describe, and the enemies, of whom John Swayne spoke, were kept within bounds. If the courts of law were feeble and idle, the chancery 58 Cal. Rot. Pat. Hib., p. 249, no. 24, where the proceedings on 11 and 3 1 December 1428 and 1 January 1429 are set out. Plunket had left Ireland, apparently before the end of November (ibid., p. 249, no. 2 1 ) , to render his account at the English exchequer (ibid., p. 247, no. 2 ) . Sutton replaced him by Thomas Barry, bishop of Ossory, who accounted from 2 January (P.R.O., E. 364/66 [10 Henry VI], m. G. ). Plunket obtained letters patent from the English chancery, dated 15 February 1429, requiring his reinstatement (Cal. Patera Rolls, 1422-1429, p. 528) and regained possession of his office on 24 August, but died on 5 January 1430, when he was replaced by Thomas Scurlag, prior of St. Peter's, Trim (P.R.O., E. 364/66, m. D). It may be doubted whether Plunket's ostensible reason for leaving Ireland was genuine: his account for both periods of office was rendered by his executors. 59 Register of John Swayne, p. i l l . This was apparently written in late September or early October 1428, not long before Swayne's appointment to the council.

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and the exchequer continued their work and parliaments were frequent and, in their way, active. The council was not always quarreling within itself or with the chief governor. It will be evident that, if it was an unsatisfactory instrument of administration, it retained sufficient cohesion and solidarity to enable it to perform its other functions: to maintain communication with the council in England, to meet the three estates in parliament, to act as an electoral college for the appointment of a justiciar in the absence of a lieutenant or his deputy. Of this last function we have said enough and of the council in parliament we shall have much to say later, though here we may emphasize that the council did not sink its identity in parliament. This truth is brought out well in the instructions given in 1474 to Sir Gilbert Debenham and his fellow messengers to the king. These instructions are said to be given by 'the three estates of our sovereign liege lord the king's high court of parliament in Ireland and his council of the same,' and, although the terms of the representations were agreed, many phrases indicate that there were separate as well as joint deliberations. 80 When the constitution of parliaments and great councils became settled in the fifteenth century, it came about that formal messages to the king were sent in the name of parliament or great council, a practice that had been anticipated on some few occasions in the fourteenth century. These messages continued the series of messages that the council had formerly sent in its own name, and indeed still sometimes sent during the first half of the fifteenth century. 61 The change of form did not, however, mean that parliament controlled the council, but that the council felt its hand strengthened by the support of the estates, and, though lords and commons expressed approval, there can be no doubt that the messages, in the main, expressed the views of the council, which, in turn, did not differ materially from those of the chief governor. Though exceptions may be found where a message from parliament criticizes the insufficiency of ministers,®2 opposition to the government of the day—as distinct from allegations against governments of the past—would be likely to be expressed in unofficial representations to the king. Such embarrassing criticisms the council would have been glad to divert to parliament or great council, where they would be certain to be blunted, if not (i0

B r y a n , Great Earl of Kildare,

81

Letter of 26 January 1401 (above, p. 25, n. 86); October-November 1435

( B e t h a m , Early Parliaments Council, v . 325-27). 6 2 A b o v e , p p . 149-50.

p p . 17-22; c f . b e l o w , p . 166, n. 27.

of Ireland,

p p . 360-61); 25 A p r i l 1443 ( P r o c .

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173

entirely suppressed.63 This is but one illustration of the part played by the council in securing that parliament should be an instrument of government and not a sounding-board for faction. Success was not invariable, but failure was rare. Success was necessary for the existence of parliament itself, for without the council and the control it exercised over procedure, an assembly of the estates would indeed have been a vain thing. 63

Below, pp. 2 0 0 - 2 0 1 .

13 THE LAST PHASE OF THE M E D I E V A L PARLIAMENT

AS W E take up the thread in 1420 we must remind ourselves that there is no real break in parliamentary history in that year; but where before we had but scraps and fragments of information from which to construct a story, now, despite many and serious gaps, w e have comparative plenty of records, and these continue until the medieval parliament comes to an end with the passing of Poynings' L a w in 1494. Nor should we think of the last phase of the medieval parliament as one of just seventy-four years, but of some eighty or ninety, perhaps a full century. We have seen indications of conscious borrowings from English practice in 1 4 1 0 and 1416, 1 and, few as these indications are, they point to such an organization as we find later in the fifteenth century, an organization, peculiar as it was in some respects, closely modeled upon the English parliament as it had developed in the later years of the fourteenth century. Its principal features are the dominance of the lords, the apparent subordination of the purely ministerial element, and the participation of the commons in the expedition of petitions—a preliminary but vital stage in the evolution of the legislative process. The functions of parliament continued unchanged; but what is especially characteristic of the Irish parliament in the fifteenth century is the concentration there of administrative and judicial business introduced by means of private bills. The Irish parliament was not relieved, as the English parliament was, by the development of the chancellor's equitable jurisdiction, which in England absorbed much of the stream of petty personal complaints of default of justice that, at an earlier period, had been directed to the council in parliament. The congestion of the Irish parliament seems, however, to have been largely due to the decay of the courts of common law. A contemporary explanation of the desolation of the courts, put forward by the commons in 1422, was that the system of issuing commissions of oyer and terminer with wide powers diverted litigation from the chancery, the 1

Above, pp. 146, 159-60.

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2

two benches, and the exchequer: but this explanation may have confused cause with effect. A graphic story, told in 1454, points in another direction. It is a story told by the law-abiding people of Kildare to Richard, duke of York. "The true liege people in these parts,' they say, 'dare nor may not appear in the king's courts in Ireland, nor any other of the true liege people there . . . for dread to be slain, taken or spoiled of their goods.' Meath, Kildare, and Louth were a prey to misrule and misgovernance, wrought by the Butlers in pursuit of a private quarrel with the Geraldines. The lieutenant, the earl of Ormond, himself one of the principal disputants, was an absentee, and his deputy, John Mey, archbishop of Armagh, would do nothing. So at last, the lords and gentry of Kildare, considering the imminent mischief and final destruction of the county and the desolation of the city of Dublin, invited the mayor and citizens to join with them in driving out the Butlers and ending their misrule.3 But to combat disorder by private war is not to restore the rule of law, though it may restore some semblance of order. Certainly the business of the central courts shrank: the plea rolls, which under Edward III and his predecessors had contained sixty to ninety wellwritten membranes a term, dwindled to a mere four membranes under Henry VI, and those ill-written and badly kept.4 To some extent this regression was due to the diminished jurisdiction of the courts, now largely confined to the counties of Dublin, Meath, Kildare, and Louth, the English Pale,5 and it was these counties that were particularly 'vexed' by commissions of oyer and terminer.6 Without doubt, whatever might be the superficial and immediate explanation, behind all lay lack of governance and the creeping paralysis of administration.7 As the Irish privy council represented to Henry VI in 1435, the chief cause of the destruction of the outer parts and counties was that the lieutenants and other governors had not visited them for thirty years past, except for a hasty journey or a hosting: they had not made their residence there to punish the rebels by the king's laws, nor had 2 Proc. Privy Council, ii. 43-46. There is no suggestion here that the chancery had equitable jurisdiction. 3 Ellis, Original Letters, 2nd Series, i. 114-22. The letter is also reproduced in Facsimiles of National Manuscripts, III, xli. W e return to this episode later: the letter is probably written with a Geraldine bias and we must allow for a certain exaggeration (below, p. 241, n. 95). 4 Betham, Early Parliaments of Ireland, pp. 350-51. 5 Ibid., pp. 361-63. 6 Proc. Privy Council, ii. 44-46: the true date of this document is 1422. 7 Cf. above, pp. 153-54, 162-65.

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the kings courts, parliaments, or great councils been held there.8 The establishment of the king's peace, however, required money and this was wanting: the normal Irish revenues were inadequate, even if they had not been prodigally squandered,9 while the king failed to pay his lieutenants the stipends he had promised, so that they, in turn, were unable to find the money for their soldiers' wages or for their supplies.10 They were reduced to a dubious and suspect exercise of their powers as a means of raising inadequate resources for the imperfect performance of their duties.11 Ulster and Connacht, for the most part, yielded neither obedience nor revenue, and it was a little surprising to the Irish privy council that in Munster the king's lieges paid the subsidies assessed upon them.12 We must discount in some measure the heightened recitals of devastation that came from Ireland to the king's council and were meant, by their extravagance, to shock the councillors into action.12® Experience had taught too well that the willingness of the English government to set wrongs right was offset by its incapacity to afford a remedy. Yet amidst all the gloom, depicted in its blackest colors in the records of the Irish parliament, there was a ray of light. Parliament, despite its evident shortcomings, its inadequacy for the task expected of it, nevertheless, by its continuous existence, encouraged the hope of ordered rule and impartial justice and kept alive the idea of unity of administration and the ultimate reign of law, which the ordinary processes of government failed to secure. Let us now attempt to describe the composition and mechanism of the Irish parliament in the fifteenth century. So far as concerns the upper house we have already said most that needs saying regarding Betham, op. cit., p. 362. The complaint that feudal and landed revenues were being wasted goes far back, e.g., in 1342 (Cal. Close Rolls, 1341-1343, p. 508; Early Statutes Ireland, p. 3 3 2 ) and in 1380 (P.R.O., C. 49/9/12; above, p. 148). In the fifteenth century all branches of the revenue were hypothecated (Proc. Privy Council, v. 322-23, 326; Statutes, 1-12 Edward TV, pp. 183, 187). 1 0 Below, pp. 227-32. 1 1 This is the substance of the charges brought by Thorndon against Ormond (Proc. Privy Council, v. 327-31). 1 2 Betham, Early Parliaments of Ireland, pp. 362-63. 1 2 a In 1430 the council in England was informed that 'enemyes and rebelles have conquered and put under thayre obeysance and tribute in the parties of Mounester wel negh all the countees of Lymerik, Tiperary, Kilkenny and Weysford, and now in the nether parties wel negh all the countees of Carlagh, Kildare, Mith, Urrioll, so that ther is lafte unconquered and oute of tribute but the counte of Dyvelyne, and litill other noghte of the countees forsaide' (Harris Collectanea, iv. 314: from Close Roll, 9 Henry V I ) . 8

9

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the peerage and the personnel of the privy council. Let us recall that while, in principle, all Irish bishops were regarded as spiritual peers, there was no effective means of compelling those bishops to attend who were beyond the reach of the king's officers. It was all very well to condemn them for purchasing bulls from the pope without the king's leave and occupying their temporalities without suit or livery of the king, but it was idle to summon them, by proclamation in Drogheda, to appear in chancery under pain of forfeiture.13 However, the comedy served to keep alive the principle that the king could require their presence in parliament. Those bishops who might be affected by such menaces seem, if they preferred not to make the journey, to have been easily excused on the appointment of a proctor and the payment of a fine.14 The fourth earl of Ormond was alleged to have encouraged those bishops who were not his active supporters to stay away and to have gained thereby not only freedom from opposition but the profit of the fines into the bargain.15 A proctor might, on occasion, represent more than one spiritual peer, though this was considered to be irregular.16 But from one cause or another, the bench of bishops might be sparsely filled, and even the proctors of absentees, who in any case sat apart unless they were themselves spiritual peers, need not be numerous.17 The dwindling in the number of heads of religious houses, who, for good reason or none, evaded summons to parliament, seems to have been regarded without concern.18 On the other hand the dwindling number of temporal peers had by 1441 excited alarm and, while the Crown was reluctant to delegate to the lieutenant power to create peers,19 the king himself issued few patents of peerage.20 There is no sign, however, that those temporal peers who remained were reluctant to attend parliament, though doubtless there 13

Statutes, Henry VI, pp. 678-80. Cf. Statutes, 12-22 Edward. IV, pp. 586, 728. Proc. Privy Council, v. 333-334. This amplifies a charge brought to the king's council by the archbishop of Dublin (Proc. Privy Council, v. 318-19; Graves, Roll of King's Council, p. 278), but not sustained by Richard Wogan, the chancellor, or the great council of July 1442 (P.R.O., E. 101/248/16, m. 2). 1 6 Graves, Roll of King's Council, p. 286. 1 7 The evidence regarding the numbers of proctors of the lower clergy is applicable equally to the appearance in parliament of bishops and their personal proctors: see below, pp. 183-84. 1 8 Above, pp. 126-27. 19 Proc. Privy Council, v. 185. 2 0 Above, p. 134. To these can be added the creation of Robert Bold to be baron of Ratoath by the earl of Worcester, deputy lieutenant, in 1468 (Statutes, 1-12 Edward TV, pp. 622-24). 14 15

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were unavoidable absences. On two occasions towards the end of the century when we get some positive evidence, it seems that about two thirds of the temporal peers were present. In 1491 five were absent out of a total of fifteen, though two earls and two barons subsequently expressed their concurrence in the action of their fellows. 21 In 1499, when the total was reduced to fourteen, four barons were absent from the second session of the parliament, apparently without licence, but seem to have been present at the first session.22 The position of the temporal peers may have been at times difficult, for there is no trace of any general practice of allowing them, as spiritual peers were allowed, to appear by proxy, though there were exceptional cases. In 1445 the sixth earl of Desmond obtained the special licence of Henry VI to appoint a proctor whenever he could not appear in parliaments and great councils,23 while the seventh earl of Ormond, who was resident in England in the later fifteenth century, seems to have had a 'deputy' who, in 1491, was Sir Piers Butler (subsequently the ninth earl). 24 However, as we have indicated, the evidence cannot be taken as pointing to any reluctance to attend parliament on the part of the temporal peers. Not only was peerage an esteemed dignity and precedence in parliament a subject of acrimonious dispute, 25 but the privileges enjoyed by lords of parliament were not inappreciable. They were excused service as sheriff,28 and they and their servants enjoyed freedom from arrest while coming to parliament and were protected from lawsuits for a period before and after a session.27 Of the ministers, the chancellor and treasurer were expected always to be present, and they alone took any prominent part in proceedings in parliament. So prominent were they that Henry VII addressed a privy seal letter to 'the deputy lieutenant, chancellor and treasurer of our land of Ireland and to the lords spiritual and temporal, chief justices, proctors and commons, and to all others having place in our 21 Gairdner, Letters and Papers of Richard III and Henry VII, i. 377-82. For the number of peers, see Cal. Carew MSS. (Book of Howth), p. 190; Complete Peerage, i. 462. 22 Portlester had died in 1496, when the barony became extinct. For the four absentees, Slane, Delvin, Killene, and Dunsany, see B.M., Additional MS. 4797, fo. logb-no, cited above, p. 143, n. 44. 23 Cal. Patent Rolls, 1441-1446, p. 358; above, p. 165. 24 Gairdner, Letters and Papers of Richard III and Henry VII, i. 382. 25 Above, p. 134. 28 Statutes, Henry VI, pp. 114-16. 27 Ibid., 1-12 Edward IV, pp. 6, 120, 142-44, 872; ibid., 12-22 Edward IV, pp. 260, 312. The period is variously stated to be two weeks or forty days.

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parliament there.'28 Not only was there a great historical tradition behind their offices, but, not infrequently, they were entitled in their own right to a seat among the peers, for many prelates served as chancellor or treasurer and latterly, in the fifteenth century, even temporal peers did so.29 The judges of the two benches, the barons of the exchequer, the master of the rolls, and the law officers of the Crown were also expected to be present to advise upon the many legal issues that came before parliament, but, in the fifteenth century, at all events, they were not entitled peers or lords of parliament, and those below the rank of chief justice were not mentioned by Henry VII except generally among those who had a place in parliament.30 They had their place there because they were members of the council, whether in parliament or in the council chamber.31 Turning to the commons, we are fortunate in the plentiful documentation of the years 1420 and 1421. This gives us a standard. Representatives were returned from eleven counties and ten towns, giving a total representation of forty-two, of whom twenty-four were knights (since the representatives of Drogheda were so termed), and eighteen citizens and burgesses. There were no representatives from Ulster or Connacht, not even from the town of Galway.32 As the fifteenth century wore on, it seems likely that only the four counties of Dublin, Kildare, Louth, and Meath, with their boroughs, were represented with any regularity,33 and no more than one town, Waterford, in other 28

Cal. Ormond Deeds, iii. 279. The date is apparently 1495. No critical lists of chancellors and treasurers have been published: those in Lascelles, Liber Munerum, Part II, pp. 202-3, 2 1 0 - 1 1 , do not go beyond 1461; the list of chancellors in Ball, Judges in Ireland, i. 154-55, covers the whole century, but is imprecise and contains some errors. The best known example of a lay-peer's occupying these offices is that of Roland fitz Eustace (created Lord Portlester in 1462), who served, with intervals, either as treasurer or chancellor for some thirtyeight years from 1454. 3 0 The obligation of the chief justice of the king's bench to attend parliaments and councils is stated in the case of Christopher Barnewell in 1443 (Cal. Patent Rolls, 1441-1446, p. 189). 3 1 Occasionally peers occupied lesser offices, as, for example, Thomas Bathe, lord of Louth, who was escheator (below, pp. 207, 257) and subsequently chief baron of the exchequer (Ball, op. cit., i. 183-84). Robert St. Lawrence, lord Howth, is another example: he was chancellor of the exchequer and clerk of the common pleas (ibid., i. 186-87), but did not succeed in making good his claim to the chancellorship (below, pp. 325-26). 32 Parliaments and Councils of Mediaeval Ireland, i. pp. xxvii-xxviii. 3 3 This seems the necessary conclusion from the fact that subsidies were latterly practically confined to these counties (below, p. 238). 29

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parts of the country.34 There is reason, however, for believing that Wexford was more frequently represented than other counties outside the Pale, 35 and in 1463 a parliament was held in the town of Wexford and adjourned to Waterford. 36 Twenty years later, in 1483, under the strong rule of the earl of Kildare, a parliament was held even at Limerick. 37 But the summoning or adjournment of parliament to places so far distant from the seat of government was quite exceptional, and the decision taken in 1478 to restrict sessions of parliament to Dublin and Drogheda on the ground that traveling was unsafe carries its own implication.38 Nor can it be unconnected with the choice of a nearer place of meeting that knights appeared for Cork in the parliament of 1463, the first who had attended from that county for many years. 39 However, like the summoning of a parliament to meet at Limerick in 1483, so the fact that in 1463 knights did come from Cork to Wexford should warn us of the danger of drawing too sweeping conclusions as to the narrow limits of royal jurisdiction, even though these conclusions are based upon contemporary statements.40 Writs continued to be addressed to very much the same list of counties and towns as under Richard II, 41 and whether or not they were respected depended very much upon the immediate circumstances. Traveling by land from any distance was difficult and hazardous,42 and though non-compliance 34 This we may deduce from the references to Waterford in the parliament rolls (Statutes, 12-22 Edward TV, pp. 52, 380-82, 558, 728). No other outlying town is similarly mentioned at this period. 35 Cf. ibid., 1-12 Edward TV, pp. 140, 508, 684. »« Ibid., p. 40. 37 See List below, p. 363. 38 Ibid., 12-22 Edward IV, p. 658. 39 Ibid., 1-12 Edward IV, p. 262. 40 The best-known description of the decay of the royal jurisdiction is contained in the message to the king sent by the Irish council in 1 4 3 5 (Betham, Early Parliaments of Ireland, pp. 361-63). This begins (in modernized spelling): 'First, that it please our sovereign lord graciously to consider how that his land of Ireland is well nigh destroyed and inhabited with his enemies and rebels, in so much that there is not left in the nether parts of the counties of Dublin, Meath, Louth, and Kildare, that join together, out of the subjection of the said enemies and rebels scarcely thirty miles in length and twenty miles in breadth, thereas a man may surely ride or go in the said counties to answer to the king's writs and to his commandments.' 41 As indicated by the fines for absence (above, p. 143, n. 48). The list of writs of summons may have occasionally been restricted, as in 1493, when writs were issued by Lord Gormanston to only the four counties of the Pale: but that there had been no general summons was one of the grounds for declaring the parliament void (Statutes at Large, Ireland, I, 57: 10 Henry VII, c. 2 3 ) . 42 This was already the case in the fourteenth century (Early Statutes Ireland,

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with a writ might result in the infliction of a penalty, the penalty was not very likely to be exacted, for the exchequer had no effective machinery for collecting debts in remote places. Communication with Galway, Limerick, and Cork was normally by sea, and the sea routes led to Bristol, not to Dublin.43 Unless, therefore, some definite advantage was to be gained by obeying a writ of summons, it was likely to be unheeded, not from any lack of loyalty to the Crown or indifference to the English connection but from the reluctance of any qualified member of the county court or any burgess to face the risks and weariness of a profitless journey, it might well be in the wet and mire of midwinter. There is no indication that in fifteenth-century Ireland membership of the commons' house had become a valued honor as it had in fifteenthcentury England. It is true that membership conferred privileges. Members were protected from lawsuits before, during, and after a session of parliament44 and, in a litigious age, this might have counted for a good deal, if only the king's courts had been everywhere effective. But, on the whole, membership was, it seems, little valued. Already in 1420 we find one man representing two constituencies,45 and this practice continued, for it was condemned in 1442 by Richard Wogan, the recently appointed chancellor.46 And however much we may discount the mutual recriminations of the Ormond and Talbot parties at this period, the charge that Ormond and his friends had procured the return of their own nominees as knights of the shire is not likely to be groundless.47 Ormond is alleged to have nominated not only members PP- 394. 462), and conditions deteriorated in the fifteenth. The comments on the loss of Castledermot (c. 1440) are illuminating ( Irish Historical Studies, ii. 396): the town 'was one of the best keys of Leinster for the king's liege people dwelling therein and thereabout and safeguard and a good town of harbourage to the king's people that should pass from those parts and the east parts of Ulster and from the counties of Uriel, Meath, Dublin, and Kildare to the parts of Munster . . . the said town was utterly destroyed by the said enemies and never recovered since, to the final destruction of all the parts thereabout.' 4 3 This is the implication of the Irish council's proposals in Proc. Privy Council, v. 326. There is a good deal of other evidence, e.g. P.R.O., C. 1/65, no. 215; 70, no. 92; 76, no. 97. 44 Statutes, 1-12 Edward IV, pp. 120-22, 142-44. 45 Parliaments and Councils of Mediaeval Ireland, i. p. xxxi. 4 6 Graves, Roll of King's Council, p. 286. Wogan was appointed on 27 February 1441 (Cal. Patent Rolls, 1436-1441, p. 514) and the parliament at which these irregularities occurred met on 17 November 1441. 47 Cal. Rot. Pat. Hib., p. 248, no. 13.

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of his own household but even native Irish, the point being, not that they were in his service, but that they could not be fully qualified suitors of the county court and were therefore ineligible for election48 and, if they were Irish, would create mischief.49 This last allegation was easy to make since there was no outward mark, not necessarily even dress or hair, to distinguish an Irishman who had the benefit of English law from one who had not. The qualification of a member returned to parliament was, in any case, open to challenge and the issue was tried by the lords,50 though, to the mind of a Talbot partisan, in a parliament dominated by Ormond the question was bound to be forejudged. The probability is that the constituencies, and especially those at a distance, were easily satisfied by anyone who offered to discharge the burden of attendance at parliament. An attempt was made in 1476 to check laxity of this kind by requiring a property qualification in the case of knights and by insisting upon residence in the constituency in the case of both knights and burgesses. All acts of parliament in which an unqualified knight or burgess sat were declared void. 51 This provision was repealed after less than two years' experience on the ground that the dangers and difficulties of travel made it inoperative.52 The repealing act was, with the other legislation of Kildare's parliament of 1478, quashed by the king, 53 but there is no reason to suppose that any attempt was made to enforce the original 48 Proc. Privy Council, v. 3 1 8 ; Graves, op. cit. p. 279: Ormond denied the charge and was supported by the great council of July 1 4 4 2 (P.R.O., E. 1 0 1 / 2 6 8 / 1 6 , m. 2 ) . 49 So Wogan says: 'And as to them of Irish nation, it is to suppose that they will not do in your (the king's) parliament, as far forth as they may, that should enure to your avail nor to your said land nor to your true subjects of your said land' (P.R.O., E. 1 0 1 / 2 6 8 / 1 6 , m. 2 ) . Similarly when explaining the absence of a proctor for the cathedral clergy of Armagh, it is said that the dean and chapter axe Irish, to whom it is not usual or proper to reveal the secrets of the king's council (Fleming's Register, fo. 28 [below, p. 183, n. 57]; Prene's Register, fo. 176h). 50 Statutes, 12-22 Edward IV, p. 656. It should not perhaps be assumed that this was the rule at an earlier date, though it is difficult to imagine any other procedure. As to qualifications, no specific Irish legislation has survived and it may be presumed that the English statutes applied. Richard Wogan refers in 1 4 4 2 to 'your (the king's) statutes, where there should no man be knight of the parliament but he that were dwelling within the said shire of the which he were made knight and also to have living within the same shire' (P.R.O., E. 1 0 1 / 2 6 8 / 1 6 , m. 2 ) . 51 Statutes, 12-22 Edward IV, p. 902. 52 Ibid., p. 586. 53 Below, p. 265.

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act. It was, however, formally repealed in 1541 as one of those 'other certain acts supposed to be made beforetime.'54 Turning lastly to the proctors of the lower clergy, we again have a standard in the documents of 1420-21. Then proctors appeared for thirteen dioceses. Armagh was represented by one proctor only, and from Dublin there came proctors for Christ Church and St. Patrick's as well as for the diocesan clergy. The total number appearing seems therefore to have been twenty-seven.55 This is the same number as the proctors upon whom a collective fine was inflicted in 1450.56 Whether on these two occasions there was an unusually large attendance we cannot say, for we lack the detailed knowledge that would enable us to speak with confidence. Moreover, there are indications that, in the course of the fifteenth century, it became the practice, in other dioceses besides Dublin, for the chapter of the cathedral church to be represented by two proctors and for the representation of the diocesan clergy to be similarly increased.57 This had not happened apparently in 1421, 58 but in 1477 we hear of the proctors of the dean and chapter of Kildare,59 and in 1499 four proctors were elected for the diocese of Ossory, two to represent the dean and chapter and two to represent the lower clergy.90 Though all dioceses did not return four proctors— in Fems, for example, one proctor was elected for the dean and chapter and one for the diocesan clergy61—nevertheless, there must have been 54

Analecta Hibemica, x. 157-58. The repealing statute reenacted the provisions regarding the qualifications of knights of the shire (33 Henry VIII, Sess. 2, c. 1: Statutes at Large, Ireland, i. 205-7). 55 Parliaments and Councils of Mediaeval Ireland, i. p. xxvii. The other dioceses were Cashel, Cloyne, Cork, Ferns, Kildare, Leighlin, Limerick, Lismore, Meath, Ossory, Waterford. M Cal. Rot. Pat. Hib., p. 265, no. 13. 5T The custom whereby the clergy of the diocese of Armagh inter Anglicos were represented by a single proctor (above, p. 79) is based upon the principle of separate representation of the chapter and the diocesan clergy. This is made clear in the return to the writ of summons to the parliament of 22 April 1409, which reads: Et quoniam ad decanum et capitulum ecclesie Ardmachane execucio istius brevis commode fieri non potest, sicut nec execucio brevium consimilium ante hec tempora fieri consuevit, pro eo quod decanus et capitulum sunt men Hibernici et inter Hibernicos conversantes, quibus consilium regium nec consuevit nec decuit secreta consilii revelare. Clerus vero Ardmachanus inter Anglicos comparet per Iohannem Darci, vicarium de Dunlere, procuratorem ipsorum, ad faciendum prout breve predictum requirit (Fleming's Register, fo. 28; Calendar, no. 119). 58 Parliaments and Councils of Mediaeval Ireland, i. pp. xxx-xxxi. 69 Statutes, 12-22 Edward IV, p. 532: cf. ibid., p. 672. M B.M., Additional MS. 4297, fo. 110. 6i Ibid.

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some increase in the total number of clerical proctors returnable to parliament. The difficulty is to estimate the numbers actually in attendance. We can be reasonably certain that Dublin, Kildare, Meath, and Armagh inter Anglicos, the dioceses of the Pale, were regularly represented, and it is probable that Limerick, Ossory, and the combined dioceses of Waterford and Lismore were also represented, at least on occasion, and sometimes Ferns. 82 We cannot measure the fluctuations, but it does not seem as though at the end of the fifteenth century the attendance was smaller than at the beginning. In 1499 the only absentees of whom we have notice are the proctors for Ferns and Ossory, and these only from the second session of the parliament of that year. 63 It may be that in the changed circumstances of the sixteenth century, when parliaments were no longer summoned annually and when the practice of amercing absentees seems to have dropped, fewer proctors appeared, and, while we cannot take the statement at its face value, there is presumably some basis of truth in the allegation made in 1537 that the total number of proctors in attendance might be no more than seven or eight.64 This fact, if it be a fact, does not, however, help us in estimating the numbers of clerical proctors attending parliament in the fifteenth century. It was, of course, the desire in 1537 to depreciate the status of the proctors in the Irish parliament. Their frowardness and obstinacy had been embarrassing and had been used by the spiritual peers to delay the passage of bills that had passed the commons but were objectionable to the clergy. The question, therefore, was raised whether the 'proctors in the convocation house' had a voice in parliament or not. The deputy arranged that all the king's learned counsel should debate the matter with the spiritual peers, and the lawyers 'not only showed unto them the opinions of the learned men of England, together with 6 2 Although the bishop of Limerick was named in 1460 among those who answered no writs of summons to parliaments or great councils (Statutes, Henry VI, p. 678), it is evident that he was present or represented in parliament in 1448, 1463, and 1478 (Statutes, Henry VI, p. 154; Statutes, 1-12 Edward IV, p. 60; Statutes, 12-22 Edward TV, p. 624). The inference is that he executed the writs addressed to him and that the inferior clergy were represented by proctors. The evidence for Ossory is similar (Statutes, Henry VI, pp. 152, 530, 738; Statutes, 12-22 Edward TV, pp. 16, 352). The bishop of Waterford and Lismore appears as a petitioner in 1463, as does also the precentor of Waterford (Statutes, 1-12 Edward TV, pp. 86, 98, 154). The then bishop of Ferns was excused attendance in 1450 (Statutes, Henry VI, p. 220), while the treasurer of Ferns presented a petition in 1473 (Statutes, 12-22 Edward TV, p. 142). 6 3 B.M., Additional MS. 4297, fo. 110. 64 State Papers, Henry VIII, ii. 439.

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their own reasons, that the said proctors had no voice in the parliament, but also proved unto them, by parliaments holden there, that it should seem by the entries of the rolls that their denial or assent was not material, for that it was written under divers acts Procuratores Cleri non consensuerunt and yet were the same acts good and effectual in law.'65 Whether or not the conclusion that the proctors had no voice in parliament follows inevitably from the premises adduced in 1537, it is to be remarked that Henry VII seems to have been of another opinion when he addressed the proctors among those who had a place in parliament, and gave them precedence (to which perhaps their dignity entitled them) above the commons.66 It is, of course, clear that, since subsidies were granted in parliaments and great councils jointly by the clergy and commons, the proctors had a place in parliament from the late fourteenth century when the procedure was formalized.67 The evidence would seem to show also that for certain other purposes they had, by the middle of the fifteenth century, achieved some sort of equality with the knights and burgesses. At the great council that met in July 1442, it was desired to examine Robert Duke, clerk of the rolls. He, however, was lying sick in the close of St. Patrick's Cathedral and it was resolved that he should be examined by a committee. This committee consisted of two peers, one spiritual and one temporal, the two law officers and the clerk of the council, two proctors and two knights, one of whom was the speaker.68 In the year 1450 the assent of the proctors to an act of parliament is recorded,69 and in 1459 they share with the lords spiritual and temporal and the commons the responsibility for a letter to the earl of Pembroke.70 In 1463 they again join with the lords, commons, and council in framing an address to Edward IV. 71 Thereafter they are not infre65

Ibid., pp. 437-38Cal. Ormond Deeds, iii. 279. 67 Above, pp. 1 1 3 - 1 4 . 68 P.R.O., E. 101/248/16, m. 2. The peers were the abbot of St. Mary's, Dublin, and the baron of Slane; the law officers, Edward Somerton, Serjeant, and Stephen Roche, attorney; Thomas Walsh was clerk of the council; the proctors were the prior of St. Thomas's, Dublin, and William Archdeacon, treasurer of St. Patrick's; the speaker was Robert Plunket, one of the knights for Meath, and the other knight Richard Mareward, baron of Skreen, one of the knights for Dublin. 89 Statutes, 1 - 1 2 Edward IV, p. 508. The reason on this occasion may be that the whole of the revenues of Wexford was in question. 70 Statutes, Henry VI, p. 588. 71 Statutes, 1-12 Edward IV, pp. 180, 187. It is to be remarked that the proctors are not named in similar documents under Henry V or in 1428: cf. Early Statutes Ireland, pp. 240-42, 562; Betham, Early Parliaments of Ireland, pp. 352-59. 06

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quently mentioned as being present in parliament or as taking part in some parliamentary act, but apparently only when a message was sent to the king or when some ecclesiastical person or interest was involved. 72 But while, on occasion, 'the authority of parliament' is equated with 'the assent of the lords spiritual and temporal, proctors and commons,'73 this is unusual, and normally no more than the assent of the lords and commons is mentioned as the authority for a parliamentary act.74 It seems a reasonable deduction that the proctors were regarded as representing a special and limited interest and that it was not considered necessary to consult them in matters lying beyond that interest or, perhaps we should say, to burden them with business that was not their concern. That no precise delimitation of the interest of the lower clergy had been laid down is evident. Quite exceptionally, one of the acts of the parliament summoned by Poynings in 1494 mentions the assent of the proctors to legislation, forbidding artillery and firearms to be kept without licence. 75 When Henry VII includes the proctors in addressing a communication to the Irish parliament, the subject matter is not even remotely ecclesiastical, but is concerned with the personal interests of the earl of Ormond, whom the king wishes to be excluded from an act of resumption.76 If their activities in parliament were restricted in practice, it was the result rather of custom and convention than of a deliberate plan, though custom and convention were based upon a recognition of the necessarily narrow outlook of those they represented. Nor was it until the proctors came into collision with the will of Henry VIII that they were found to be a factious and vexatious body, and were swept away as obstacles in the path of Reform. 77 Parliaments and great councils were summoned frequently in the fifteenth century and, until the passing of Poynings' Law, it was rare for a year to pass without the one or the other and in some years there was more than one assembly. Shortly we shall have to speak of the 72 Statutes, 1-12 Edward TV, pp. 348, 358, 360, 728; Statutes, 12-22 Edward IV, pp. 144, 428, 476, 662, 832, 848; Bryan, Great Earl of Kildare, pp. 17-22. 73 Statutes, 12-22 Edward IV, pp. 170, 428. 74 Statutes, Henry VI, pp. 10, 70, 100, 342; Statutes, 1-12 Edward IV, pp. 322, 370, 482-84, 588, 592-94, 644, 738, 848, 856, 862; Statutes, 12-22 Edward IV, pp. 224-26, 328, 578. Statutes at Large, Ireland, i. 50 (c. x i ) . 76 Cal. Ormond Deeds, iii. 279; above, p. 183. 77 An Act against Proctors to be any Member of the Parliament, 28 Henry VIII, c. 12 (Statutes at Large, Ireland, i. 102-3; Analecta Hibemica, x. 155 [c. 19].

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nature of great councils, but at this point it will be well to say that we group them with parliaments because they had become hardly distinguishable one from the other and a great council was, for most purposes, the recognized equivalent of a parliament. The frequency with which parliaments and great councils were summoned in Ireland contrasts with the growing infrequency of parliaments in England as the century wore on.78 Again, in England, under Henry VI and his successors, it became a common practice to prorogue a parliament, sometimes several times, so that the life of a single parliament might extend over several sessions, as is the modern rule. Such prorogations were not unknown in Ireland—as in 1420-1421, when parliament met on 7 June for sixteen days and was then prorogued to 2 December and, after a session of thirteen days, was again prorogued to 7 April, when there was a final session of eighteen days.79 But such a course was thereafter infrequent until the reign of Edward IV when, indeed, by an act of 1476 the power of the lieutenant or deputy to prorogue or adjourn was limited in such a way as, in effect, to restrict die duration of a parliament to three sessions,80 though this limit was, in practice, occasionally exceeded.81 Frequent sessions, however contrived, and whether in the guise of parliaments or great councils, were not generally welcomed, and, just as in 1476 the commons insisted upon limiting the number of prorogations, so they had previously insisted, in 1450 and 1455, upon restricting writs of summons to one parliament or one great council a year.82 We have already noticed some evidence suggesting that great councils were approximating in composition and function to parliaments early in the fifteenth century and, although we lack any lists of those summoned,88 it is plain from the records of the proceedings of great councils under Henry VI and Edward IV, as well as from contemporary references to their acts and procedure, that their resemblance 7 8 The particulars in the List below (pp. 347-65) should be compared with the list of English parliaments in the Handbook of British Chronology, pp. 348-49. In England great councils did not resemble parliaments in composition and only partially in function: they do not therefore enter into the comparison (below, p. 188). 7 9 Below, p. 351. 80 Statutes, iz-22 Edward TV, p. 904. 8 1 As in 1479-81 and 1485: see List below, pp. 362-64. 82 Statutes, Henry VI, pp. 258, 354. 8 3 The nearest approach to such a list is supplied by the indentures furnished at the great council of October 1421 (Parliaments and Councils of Mediaeval Ireland, i. pp. xxvi-xxxi, 167-82).

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to parliaments was such as almost to amount to identity. It would seem that there was not the same necessity in the case of a great council, as there was in the case of a parliament, that the period of summons should be at least forty days, though it is rare for the notice to be shorter than this,84 and it would seem also that legislation passed in a great council might require to be confirmed in parliament.85 We may say, therefore, that great councils lacked something in formality and authority as compared with parliaments. But in most aspects—for taxation, for the presentation of bills, for preparing messages to the king—the one seems to be equivalent to the other. We may observe a similar phenomenon in England under Edward III, during whose reign great councils of a composition similar to parliaments were not infrequently summoned:86 even thereafter, when great councils ceased to contain a representative or, at least, an elective element, they were summoned in England as an alternative to parliaments to perform certain parliamentary functions.87 There would seem, however, to be no question that in the fifteenth century an Irish great council, unlike a contemporary English great council, must contain elected representatives of the commons and lower clergy.88 Afforced councils were still occasionally summoned in Ireland that did not contain such representatives as were elected to attend parliament or great council. These afforced councils differed, moreover, from great councils in that they were summoned not under the Irish great seal but under the lieutenant's privy seal.89 The afforced council 8 4 In the case of eleven great councils between 1433 and 1450 only one was summoned at less notice, the exception being the council which met on 1 1 December 1433 in consequence of a writ dated 1 1 November. This council had been preceded by one that met on 16 October, the writ being dated 6 September and therefore allowing forty clear days. In all the other cases the period of summons was longer, amounting on one occasion, in 1449, to seventy days, while, if the particulars can be trusted, the great council that met on 22 October 1484 had been summoned on 1 July (see List below, pp. 353-63). 85 Statutes, Henry VI, p. 188. It would seem that the description of 'statutes' was not given to the legislation in great councils (ibid., pp. 250, 300; Statutes, 1-12 Edward, TV, p. 2 ) , though the legislative procedure does not seem to have differed from that followed in parliament (below, p. 2 0 1 ) . 86 Bulletin Inst. Hist. Research, viii. 65-77. 8 7 For a good example see ibid., xi. 158-60. See also Trans. R. Hist. Soc., Fourth Series, xxviii. 32. 8 8 This is the implication of all the surviving writs of summons and records of business transacted, to which references will be found in the List below (pp. 347-65). 8 6 See Graves, Roll of King's Council, p. 305, where it is stated that the earl of Ormond sent privy seals, 'as the custom of that land is, to the estates and gentles, spiritual and temporal, of the part of that land whereas he was at that time, praying them to come to the king's town of Drogheda.'

THE

LAST

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189

regarding which we have most information is one that was summoned by the earl of Ormond in 1444. This met at Drogheda on 26 June and the writs were confined to Dublin, Kildare, Louth and Meath. Its purpose was to make a true report on the state of the land and the earl's administration, and its impartiality was guaranteed, so far as might be, by the presence of Robert Manfield, an usher of the king's chamber, who had been sent specially from England. There were in attendance, besides the privy council, thirty-three of the clergy and about ninety laity. The clergy included four bishops, seven abbots, seventeen priors, four archdeacons, and the dean of St. Patrick's. The laity included five barons (not necessarily lords of parliament), nine knights and, among the rest, a good many 'proctors' of the citizens and burgesses within the four counties, some of them certainly the chief magistrates of the towns they represented. The proceedings are of interest because they suggest how other such gatherings were conducted. The earl made a speech, asking those present to declare whether he had practised extortion, how he had conducted himself, and whether he had properly applied the public moneys he had received, namely the king's 'stipends' and the subsidies granted by the commons of Ireland. The earl asked further for their opinion regarding his departure from Ireland (for he had been summoned to England to face the charges made against him by his enemies in Ireland). The lords spiritual and temporal, the gentry, citizens, and burgesses withdrew to deliberate apart and afterward gave their report by the mouth of James Alleyn, whom they had elected to be their speaker.90 It is noteworthy that, on this occasion, those summoned acted as a single body and that the lords did not sit or act with the privy council.91 The circumstances were unusual, but other lieutenants had obtained similar testimonials to their conduct from parliaments and councils.92 90 Alleyn was an Irish lawyer of some distinction, who had been elected one of the messengers from a great council or parliament in 1 4 2 7 or 1428 (Beth am, Early Parliaments of Ireland, pp. 3 5 6 - 5 7 ) . In 1444 he was out of office, but he had been chief justice of the common bench and was to be chief justice of the king's bench (Ball, Judges in Ireland, i. 1 7 6 ) . 91 For the proceedings in 1444, see Graves, op. cit., pp. 3 0 5 - 1 1 . 92 For such testimonials, see Betham, op. cit., pp. 360-61; Statutes, Henry VI, pp. 240-42; Statutes, 1 - 1 2 Edward IV, pp. 184-87; Statutes 1 2 - 2 2 Edward IV, pp. 476-78. Cf. the eulogy of Richard Talbot, justiciar and archbishop of Dublin, in the message sent to England in 1 4 3 0 : 'notwithstanding the grete labour that oure noble lord th'Erchebyshop of Dyvelyn, Justice of the sayde londe, doth and showes dayly, hym to importable coste in resistence of the malice and defetyng of the evyll purpose of the enemyes and rebelles aforsaide . . . the labour and resistence that the saide Justice can and dothe mak ageynst the sayde enemyes and rebelles, more than any other Lieutenant or other Govemour did in thayTe tyme before this' (Harris Collectanea, iv. 3 1 4 : from Close Roll, 9 Henry VI.)

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THE I R I S H P A R L I A M E N T IN THE M I D D L E

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We have said enough, for our purpose, of great and afforced councils and we may return to our discussion of parliaments. Having described their composition—a description that will apply equally to great councils—let us attempt to describe their organization and functions. But, first, a little must be said of the place of session and the manner of seating. In an age when there were few public buildings, it was inevitable that parliaments and councils should be held in a suitable room in a convent or, if that were not available, in a church. In Dublin the frater of Christ Church was a convenient meeting place. 93 In Drogheda the convent of the Franciscans seems to have been selected and we hear of the Icing's council house' there in 1444.94 It was the straitness of the chapel at Ballydoyle, 95 as well as the isolation and poverty of the place, that evoked protests when a parliament summoned to Cashel met there in 1 3 7 1 . But whether parliament met in a small village or a large city, the choice of meeting place was restricted to a church or some conventual building. The structure determined the method of seating, which had to be improvised for the occasion. The only medieval description of the arrangements is cont a i n e d in the Modus

tenendi

parliamentum

a n d , a l t h o u g h this descrip-

tion is imaginary and the writer's powers of expression inadequate, it is evident that he is trying to depict an assembly he has seen and one that will be broadly familiar to the contemporary reader. 96 To elucidate his words we can use the earliest picture of an English parliament, drawn in 1523, 9T which represents sufficiently well medieval conditions. The lords sit in a hollow square separated from the rest of the chamber by a bar. In the middle of the farthest side of the square, facing the bar, sits the king's representative—let us assume that, on this occasion, it is the lieutenant himself; by his side there stands the chancellor. If there are archbishops present, they are seated near and in line with the lieutenant. There are benches, at right-angles to this '•'S Statutes, 12-22 Edward TV, p. 606. 9 4 'In domo consilii regis' (Graves, Roll of King's Council, p. 306). 95 Foedera, III. ii. 978: 'in quo loco nulla edificia preter unam capellam parvam cxistunt.' For further references to Ballydoyle, see above, pp. 104-5. We reject the suggested identification with Ballyduagh. There is no reasonable doubt that the place is Ballydoyle in Middlethird Barony, St. Peter's Roch parish, four miles from Cashel (cf. Census of Ireland for 1871, p. 57). 9 6 The relevant chapters are 10 and 1 5 of the Irish Modus, corresponding to 14 and 22 of the English Modus. 9 7 Reproduced as the frontispiece to Pollard's Evolution of Parliament from R. Fiddes' Life of Cardinal Wolsey (1724): for further details, see Pollard, op cit., pp. 380-83.

THE LAST PHASE OF THE MEDIEVAL PARLIAMENT

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line of dignitaries, on the two sides of the hollow square. To the left hand of the spectator, looking from the bar, sit the spiritual peers and on the right hand the temporal peers, in order of their precedence. The treasurer, it seems, has his place with the temporal peers, though he be not a peer himself.08 In the space between the two rows of peers, who sit facing each other, sit the judges and other members of the council, together with the clerks required for preparing and recording the transactions. The proctors of any absent spiritual peers are seated near. If the peers are, as they should be, ceremonially robed—and statutes had occasionally to be passed to recall this duty to them99— the earls will be distinguished from barons by three bars of white miniver upon their robes instead of two. The judges also should be fully robed.100 At the bar the commons stand and with them presumably the proctors of the lower clergy. There has already been a roll call and it has been noted to which writs of summons there has been no return: some returns are very much delayed and certainly will not be presented on the first day of parliament.101 The chancellor opens the session with an address on the cause of the summons and the business to be transacted.102 The commons withdraw—in Dublin to some part of Christ Church cathedral where they have their common house.108 The proctors of the lower clergy withdraw to the convocation house—in Dublin, presumably also within the cathedral.104 The commons elect a speaker,106 but we hear nothing Irish Modus, c. 10: Thesaurarius sedebit inter barones.' Statutes, 12-22 Edward IV, pp. 490, 904. In the statute which repeated this requirement, passed in Poynings' parliament, it is stated that the lords have ceased to wear robes for twenty or twenty-four years (St. 10 Henry VII, c. 16: Statutes at Large, Ireland, i. 52-53). 100 Statutes, 12-22 Edward TV, pp. 490, 904. 101 Statutes, 12-22 Edward TV, pp. 586, 648-50, 728. 1 0 2 P.R.O., E. 101/248/16, m. 2: Richard Wogan, referring to the parliament of November 1441, says 'I was charged by the said earl (of Ormond) to declare unto the lords and commons of your said parliament the causes of your said parliament set, and among all other things I was charged that I should declare unto the said lords and commons that your Irish enemies of your said land for the more part were confederated together to one peace to the end that they should war together upon your true liege people . . (The spelling has been modernized.) The same procedure was followed at a great council (Graves, Roll of Kings Council, pp. 288-89). 103 Statutes, Henry VI, pp. 360, 524. 104 We have not noticed a reference to 'the proctors in the convocation house' earlier than 1537 (State Tapers, Henry VIII, ii 439), but the usage must, on the analogy of the 'common house,' date back to the reign of Henry VI and presumably earlier. 105 For the speaker, see Appendix VIII. For the speaker at great councils, see above, pp. 159, 185. 98

99

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IN

THE

MIDDLE

AGES

of a prolocutor of the lower clergy, although someone must have been chosen to speak in their name: the part they played in the affairs of parliament was, however, as we have seen, a minor one that did not call for much formality. In the interval before the commons returned— the proctors presumably accompanying them—the peers and ministers, we must suppose, began their discussions on the state of the land, the recurrent question of local warfare, the need for a subsidy, the terms of the message to be sent to the king. Certainly in the hours of respite from the work of considering public and private bills, these things must have been considered, though of them little is said in the rolls, which are filled, as a rule almost exclusively, with the acts resulting from the bills presented in the course of the parliament or great council. But of bills and bill procedure it will be best to treat in a separate chapter. We may, however, add a few paragraphs on the high criminal justice dispensed in parliament. It is clear that under the three Edwards charges affecting magnates were, from time to time, brought before parliament. 108 In the fifteenth century proceedings of this kind became assimilated to the prevailing petitory procedure and were then initiated by bill. This had not seemingly happened by 1427, when the bishop of Meath, who had been indicted of felony, rose in his place in parliament on 1 April to declare his innocence and to ask that he might be admitted to compurgation before his metropolitan, the archbishop of Armagh. To this request the justiciar and the lords agreed, and the archbishop was required to report the result at the next session in September. 107 A dozen years or so later, there is an indication of a new procedure. We learn that in a parliament held before Leo, Lord Welles, as lieutenant, and therefore, presumably, in either November 1438 or November 1440, 108 James son of William fitz Thomas was convicted and proclaimed a depopulator, destroyer and traitor. 109 No further details are given, but presumably conviction followed upon impeachment, a process we find in use in 1447, when it originated in 106

Above, pp. 63-64, 75. Register of Primate Swayne, pp. 66-68. 108 Lord Welles was in office from 1 May 1 4 3 8 to 28 February 1442, but the former date was the day of the muster of his troops at Chester (P.R.O., E. 1 0 1 / 5 4 0 / 1 7 ) , and he did not arrive in Ireland until later in the month. He appears to have left in the summer of 1439 and to have returned in May or June 1440 to stay until March 1 4 4 1 (Wood in Proc. R. Irish Acad., xxxvi. C. 2 3 5 ) . Within these limits only two parliaments are known to have been held (below, p. 3 5 3 ) . 109 Graves, Roll of King's Council, p. 302. 107

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a bill presented by the commons.110 Another case of compurgation occurred in 1451 in remarkable circumstances. Parliament had met in the previous year at Drogheda and there, when the archbishop of Armagh, John Mey, was on his way to his lodging at Tribolle's Inn in St. Lawrence Street, he encountered the crossbearer of the recently appointed archbishop of Dublin, Michael Tregury, who appeared to be displaying his master's cross in the province of Armagh. Mey took this as a personal affront and made complaint in the next parliament that met at Dublin. The matter was considered at a special meeting of the council, attended, among others, by five temporal peers. There Tregury told a story of how the head of his cross had been broken and his crossbearer was taking it to be repaired by a specially skilled goldsmith, who happened to live at Drogheda. It was, he asserted, hidden by the crossbearer's tunic and could not be seen. He disclaimed any wrong intention and was admitted to compurgation before the deputy and council, in the presence of a large company of clerks and laymen. 111 Tregury was again in trouble in 1465 when, upon his own petition and after a formal act had been passed, he again cleared himself by compurgation in parliament.112 Similarly, in 1477, his successor was given the alternative either of trial before the lords spiritual and temporal or of compurgation by the most honorable of his clergy before the deputy and the lords in parliament.113 In both of these cases there had previously been an indictment in the king's bench, and the bishop of Meath's case in 1427 is plainly a precise parallel and precedent. As bishops and, therefore, as lords of parliament, the accused have a right to trial by their peers. What is remarkable is that a bill, presented by the accused, should be considered requisite to initiate the proceedings in parliament. But procedure by bill in criminal cases was not confined to impeachment by the commons and trial by peers. It was a remedy open to others, although restricted perhaps to persons of influence. The action brought by Sir Gilbert Debenham in the early years of Henry VII 1 1 4 affords an illustration not only of the procedure but also of its ineffectiveness. Debenham had come to Ireland in 1491 no Below, p. 198. Mey's Register, fo. 66a. This is on 26 March 1451. The earl of Ormond was deputy and there were present, besides the two archbishops, the bishop of Meath, then chancellor, the barons of Delvin and Slane, lords Gormanston, Howth and Killeen, several lawyers and two notaries. They met in a room in the Franciscan convent, where perhaps the session of parliament was held. 112 Statutes, 1-12 Edward TV, pp. 346-50. 113 Ibid., 12-22 Edward TV, pp. 500-504. 1 1 4 Presumably in the parliament that met at Trim on 13 January 1492. 111

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to take up the offices that the king had conferred upon him of constable of Carrickfergus Castle and warden of mines. 115 In circumstances he does not explain he had been, so he alleges, despoiled of property, worth £.1000 and more, by riotous persons and had been severely wounded into the bargain. To recover what he had lost he presented a Tbill of lamentable complaint' to 'all the lords spiritual and temporal,' who appointed a day for the offenders to appear before them to answer the complainant. The defendants did not appear and, although an act was passed against them and their accessories, Debenham was left with an unenforceable remedy and recovered nothing. 116 In concluding this chapter we should perhaps emphasize that in parliament the tribunal is constituted solely by the lords, with whom the ministers are associated, though not as equals, unless, indeed, they are themselves peers. Even the chancellor, if he be a commoner, may be excluded from their deliberations. 117 As for the commons, although they are the instrument for initiating an impeachment and although, as we shall see, 118 they are employed also for promoting bills on behalf of the council and individual ministers and peers, as well as private persons, yet their position is subordinate. They may appear in open parliament in support of a petitioner, 119 or as witnesses or assessors at some act or ceremony to which it is desired to give publicity. Thus they are present when, in the great council of July 1442, the prior of Connell, himself a peer, is examined on the allegation that he had been imprisoned by the earl of Ormond 120 and, again, they and the proctors of the lower clergy are present in parliament in 1465 at the 115 Cal. Patent Rolls, 1485-1494, pp. 334, 341. For his visit in 1473, see above, p. 168. He had returned in 1474 as chancellor and commander of the lieutenant's force of archers (above, p. 168, n. 41). 1 1 0 P.R.O., C. 1/130/15: the date is apparently not later than 1493. After returning to England, Debenham had taken sanctuary to escape his creditors and from there, having learned that one of the persons named in the act was in the country, he started proceedings against him by a bill in chancery. It is from this bill that we get the story. 1 1 7 Thus Richard Wogan says in 1442: 'but whether it was communed with the lords spiritual and temporal of the said parliament among themselves in their places to have a lieutenant of the birth of England, I have no knowledge thereof' (P.R.O.,

E. 1 0 1 / 2 4 8 / 1 6 , m . 2 ) . 118 119

Below, pp. 200-213.

For two clear examples, see Statutes, Henry VI, pp. 4, 508; but, whenever the commons adopted a Dill as their own, they must nave appeared formally in support of it. 1 2 0 'He, being in this present council, hath been examined afore us, lords spiritual and temporal and commons, and said he was not imprisoned. . . .' (E. 101/248/16,

m.2.)

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compurgation of the archbishop of Dublin. 121 Yet equal publicity might apparently be given in other ways, as when the same archbishop in 1451 had purged himself, not in open parliament, but at a specially convened meeting of the council in parliament.122 The formal presence of the commons on such occasions is adventitious, a mere matter of convenience. A parliament or great council without them is, it is true, unthinkable in the fifteenth century. They have even an indispensable part to play in the procedure that has gradually been evolved. But, in large part, this is stage-management: the essential functions of parliament are performed by the lords, who are, in turn, largely actuated by the ministerial council, itself the creature of a distant king. 121 122

Statutes, 1-12. Edward TV, p. 348. Above, p. 193.

14 B I L L S AND S T A T U T E S

H E commons, as we have seen, assembled before the council and the lords to hear the chancellor declare the causes for which parliament had been summoned. They then withdrew. When they again appeared in the parliament chamber, their speaker made a formal protestation on the lines of that made by the speaker in the English parliament. He, as the mouthpiece of the commons, sought in advance immunity for any indiscreet words he might, by chance, utter—a not unnecessary precaution, since he might easily run counter to the wishes of the lieutenant.1 Thereafter he put forward certain formal requests, repeated at every parliament, asking that the church, the land of Ireland and the cities, towns, and boroughs should enjoy their ancient privileges and usages.2 These were all that were left of the ordered common petitions written on a schedule which, following an English precedent, had been presented at earlier parliaments in the fifteenth century. The older practice may have been followed to some extent as late as the middle of the century,3 but certainly by the 1440s it had become the custom for the commons to present most of their petitions, apart from the first formal ones, written as separate bills. Not only is this evident from the manner in which the entries are made on the surviving 4 parliament rolls from 1447 onwards, 5 but we have, besides, the statement in 1450 that a prayer of the commons presented in 1443 and the act resulting therefrom had not been enrolled in the chancery

T

1

Appendix V I I I . T h e earliest surviving evidence comes from 1 4 0 2 w h e n petitions were put forward on behalf of the church and the land of Ireland ( E a r l y Statutes Ireland, p. 5 0 4 ) . For 1 4 1 0 there survives an abridgment of the commons' petitions, which shows that, as w e should suppose, formal petitions underlay the formal statutes (ibid., p. 5 2 0 ) . The second petition asked that the "commons" should have their liberties etc., but in the statute the Tand of Ireland' was substituted. The wording was slightly modified as time went on, but in substance the petitions and statutes were repeated, always in French, until 1 5 1 6 (Analecta Hibernica, x. 1 1 3 - 1 4 ) . 3 This would appear to be certainly the case in 1 4 3 1 (Statutes, Henry VI, pp. 4 0 - 4 6 ) : for later years, see below, p. 198. 4 In 1 9 2 2 , when they were destroyed. n Ibid., pp. 5 4 - 1 0 8 . 2

196

B I L L S AND

STATUTES

197

and could not then be found.6 There is here a plain reference to a petition written on a separate piece of parchment and to an endorsement stating the decision taken. In the year 1450 there is a further notable change in the manner of entering up the parliament rolls. If we take the rolls for the parliaments of January 1447, March 1449 and April 1450,7 which were the next three still extant in modern times of a date subsequent to 1431, we shall notice that, besides a number of bills from individual petitioners and of bills from the commons,8 there are a good many entries which record the action taken but do not indicate by whom the action was initiated. Entries of this third class do not appear in the roll of the great council of November 14509 or in subsequent rolls: on the other hand, the number of bills, purporting to come from the commons, recorded on these rolls is very much increased. The obvious explanation might seem to be that the responsibility for initiating a certain type of parliamentary business represented by the anonymous entries had been transferred to the commons: but the true explanation appears to he elsewhere. Most of the entries in question deal with matters of general interest—the adoption of Irish customs by certain of the English,10 action against the native Irish, 11 clipping of coin and the use of golden horse-trappings,12 financial abuses,18 purveyance,14 trade;16 others are in the interest of peers and ministers;16 some are concerned with the administration of justice17 and extrajudicial proceedings against notorious wrongdoers;18 while some are confined to matters of local, but still of public, interest.19 If we regard the form of these 6

Ibid., pp. 228-32: 'Les queux supplicacioun et act pax negligence de eulx qe avoient il (sic) en lour garde at govemaunce ne poent estre trov6z' (p. 230) . . . 'le dit supplicacioun et acte ne purrount estre trovez enroU6z de recorde en la dit chauncerie' (p. 232). 7 Ibid., pp. 54-108, 110-64, 178-248. 8 The number of bills specifically presented by the commons is seven in 1447 (ibid., pp. 72, 78, 80, 82, 92, 106), three in 1449 (ibid., pp. 144, 154, 162) and four in 1450 (ibid., pp. 180, 194, 202, 246). 9 Ibid., pp. 250-90. m Ibid., p. 88. " Ibid., pp. 88-90. « Ibid., p. 90. 13 Ibid., pp. 1 1 4 , 116-20, 188, 228-32. 14 Ibid., p. 192. 15 Ibid., pp. 192, 234-36, 236-38. 16 Ibid., pp. 76-78, 80-82, 90-92, 98-100, 114-16, 120-24, 190. 17 Ibid., pp. 1 1 2 , 116, 188-90. 18 Ibid., pp. 190-92. 19 Ibid., pp. 104, 106, 232.

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entries, we shall observe that certain of them are introduced by the same formula as the three entries with which the rolls almost invariably begin and which undoubtedly derive from formal petitions of the commons. This formula varies between 'accorde est et assentu' and 'ordeigne est et establie,' and it is reasonable to deduce that all entries introduced in this fashion have a common origin. Thus the first five acts in the roll of 1449 all begin with the formula 'ordeigne est et establie,' the first three acts being the traditional confirmations of liberties,20 and we can hardly doubt that on this occasion the commons had appended two additional items to their three formal petitions. The anonymous entries which are introduced in like fashion do not always immediately follow the traditional introductory entries, 21 and the demonstration of a common origin is not therefore always so readily apparent; but the distribution over the roll of entries from the same source would naturally result from the growing practice on the part of the commons of using a separate bill for each of their requests. Nor do those entries with a similar formal introduction alone originate with the commons. In the roll of 1447 there is an anonymous entry, briefly stating that a number of persons there named have been impeached of various offenses and that, if they fail to appear by a certain date before the lieutenant or in the chancery, they will be attainted: 22 we know only from a roll of 1455 that the accused had been impeached by the commons.23 The conclusion, then, which it seems safe to draw, is that the anonymous entries as a whole derive from some action by the commons, though not necessarily action upon their own initiative: for it is obviously impossible to suppose that of their own motion they would promote bills in the interest of peers and ministers. It is uncertain whether we can go further and deduce that entries avowedly proceeding from a petition of the commons are due to their own initiative, while anonymous entries represent business for which they took formal responsibility, but this distinction seems possible. We must make it clear that what we have said in the preceding paragraph relates to a brief period represented by three rolls of 1447, 1449, and 1450. Earlier parliament rolls up to 1431 (after which there is a gap) 2 4 do not seem to have contained any entries relating to private 20

Ibid., pp. 112-14. E.g., Qrid., pp. 76, 8o, 188, 190. 22 Ibid., pp. 94-96. 2s Ibid., p. 408. 2 4 Three early parliament rolls only survived in modern times, those of 1428, 1430, and 1431 (Statutes, Henry VI, pp. 10-46). The abstract of the roll of 1410 gives a good idea of the rolls of an earlier period (Early Statutes Ireland, pp. 5*0-27). 21

BILLS

AND

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bills, which probably continued to be recorded, as in 1393, among the chancery warrants.25 So long as this procedure was followed, the parliament rolls consisted substantially of a record of decisions on the petitions presented by the commons, though these might include petitions by single counties or groups of counties, and presumably other communities, for which the commons as a whole were prepared to vouch. Something more than a mere matter of procedure is here involved, for whereas private bills, though presented in parliament, had been indistinguishable, in all but the occasion, from bills presented to the council at any other time, the change in procedure indicates that their presentation and expedition had become, in a new and more definite sense, a branch of parliamentary proceedings. The paucity and incompleteness of Irish records make a final pronouncement impossible, but the growing bulk and the contents of the parliament rolls suggest that there had been a gradual transfer of business from the privy council and that what had been considered to be part of its daily work was now, as a rule, reserved for parliaments and great councils. By 1450 the position had been reached that, as they appear upon the parliament roll, there was nothing to distinguish a bill presented by the commons from a private bill, except, of course, the name of the petitioner. The entries were dispersed and intermixed by the enrolling clerk, who, apart from the first formal entries, seems to have made no attempt at classification but apparently entered each item as it was disposed of and filed. Nevertheless, the procedure differed according to the origin of a bill, though it is only with difficulty that we can disentangle it, so well did the clerks obliterate what seem to us important distinctions. No bills, we must make it clear, were introduced in the name of the king or his representative:26 ostensibly there were no government bills. This needs must be so because each bill was addressed to the lieutenant (or deputy or justiciar), with whom the lords spiritual and temporal were at least sometimes, and perhaps usually, associated as the recipients of the petitioner's prayer. It follows that the peers as a body did not present bills, though individual peers often did so in matters of personal and private interest. In principle all bills were presented either by the commons or by private petitioners: there was no third class. But obviously the more important parliamentary business was likely to originate with the government and, however the realities might be veiled, bills must be presented on behalf of the government. The commons therefore had to be persuaded to adopt any 25 26

Above, p. 88. The few apparent exceptions are not significant: see below, p. 203.

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proposals the king's representative and the council might consider it desirable to enact. The procedure is plainly disclosed in one of the articles against the earl of Ormond presented to the king's council in England in 1444 by Giles Thomdon. To make the situation plain we must tell the whole story, a story which it is, in any case, desirable to bear in mind. Ormond desired to exercise control over complaints made in England against the Irish administration. The idea was not new. As early as 1352 it had been a matter for remark that ill-conducted people, cheats and liars, had come to England to slander the justiciar, chancellor, treasurer, and others of the Irish council. These slanderers, it was suggested, had been too lightly believed, and orders had, in consequence, been directed to the Irish government without proper examination of the allegations.27 And we have seen exemplified, in the case of William of Windsor, the weakness of the king's council in dealing with vexatious complaints against one who was faithfully carrying out the instructions of a royal master who had actually added to his servant's difficulties.28 In 1428 definite proposals were put forward in a message to the king's council in England sent from a parliament called by the then lieutenant, Sir John Sutton.29 The object was to insure that the king's council did not have before it merely ex parte representations but also considered observations upon them drawn up at a parliament or great council. Though Ormond may have had some share in framing these proposals, they were certainly not his alone, nor were they by any means unreasonable, though they were not adopted. After he became lieutenant, in February 1442, Ormond revived the proposals, but he now considered that the best way to effect his purpose would be to pass a statute in Ireland to restrain complainants from going direct to the king's council. Instead they would be required to present their complaint to a parliament or great council in Ireland in order to insure that, when the complaints were forwarded to the king, they would be accompanied by an authoritative commentary. Ormond therefore prepared a bill which was brought into the common house by a member of his personal council, who seems not to have been, himself, one of 27 Cal. Close Rolls, 1349-1354, p. 462. The ordinance of 1 3 5 7 , c. 1 2 (Statutes of the Realm, i. 360-61) provided that bills and allegations against ministers and others, made in England, should be transmitted in writing by the English chancellor to the Irish justiciar, chancellor, and treasurer for inquiry in the presence of the complainants. 28 Above, pp. 80-85. 29 Betham, Early Parliaments of Ireland, pp. 354-55.

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the commons. Exception was taken to the bill by some, apparently a minority, of the commons, who would not let it pass, and the bill, in consequence, was not introduced in parliament. Defeated at the first attempt, Ormond sent the bill to the commons on four separate occasions, at two parliaments and two great councils, each time with the same result.30 Thomdon ascribes base motives to Ormond and the highest motives to the opposition among the commons and, in itself, this would suggest that the opposition represented the Talbot interest. This suggestion is borne out by the allegation that at a parliament at Dublin—evidently that of January 1444, and the fourth occasion on which the bill was put to the commons—Thorndon had requested archbishop Talbot to call the commons together and stir up sedition against the lieutenant.31 The incident of the 'dashed' bill is of interest, not so much on account of the fate of this particular measure or for the light it casts on high politics in Ireland, but as showing how nearly great councils had become assimilated to parliaments and for the light thrown upon the position now occupied by the commons. Apparently a determined minority could defeat a bill, even if it had behind it the authority of the lieutenant, and we can understand why Ormond had attempted to pack the commons. However, the rule that the will of the majority was to prevail had not yet been fully established. Ormond, it would seem, favored this rule, and it was alleged by another of his enemies that he had procured the election of members of his household as knights of the shire in the expectation that the minority would yield to the packed majority. Indeed, it was thought to be a damaging accusation that this was, in fact, the rule in the parliament of November 1441, and that, by this means, the only decisions taken were those that Ormond favored. 32 But though nothing was decided that he did not wish, and his majority insured that this would be so, nevertheless it did not follow that he could impose his will upon parliaments and great councils. Yet we must not be deceived by the apparent independence of a determined minority of the commons—or rather, of the knights, for 30

Proc. Privy Council, v. 3 3 1 - 3 2 . Graves, Roll of King's Council, p. 3 1 2 . 32 Richard Wogan says: 'And as I am informed, they of the said earl's household was made knights of your said parliament to that end that, where the more part of knights of your said parliament were, that least part of them should incline to the more part, and so it was ruled in your said parliament; and so there might nothing pass in your said parliament but after the intent of the said earl' (P.R.O., E. 1 0 1 / 2 4 8 / 1 6 . m.2: the spelling has been modernized). The absence of any reference to burgesses should be noted. 31

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the burgesses seem to have been of little account—in the face of the lieutenant's insistence. The opposition was sustained from without, and its strength was ultimately the strength of the Talbots, whose influence with the king was greater than Ormond's. It is unlikely that any section of the commons would have withstood him, had Ormond's position not itself been so vulnerable. But the parliament of January 1444, let it be remarked, witnessed the last contention between Ormond and the Talbots, for the great quarrel was composed shortly afterwards in the characteristic medieval manner. A marriage was arranged between Ormond's daughter, Elizabeth, and the earl of Shrewsbury's son, another John Talbot. Henceforth the Butlers and Talbots were kinsmen, and the tools the Talbots had employed—Giles Thomdon and Thomas fitz Gerald, prior of Kilmainham—foolishly pursued the feud against Ormond to their own discomfiture.33 Obviously the absence of the originals and the rarity of contemporary comment must make it no more than a matter of inference that bills put forward by the commons were frequently government bills. But there can be no doubt that Ormond's action was by no means exceptional—though his failure may have been—and that the normal relation of the commons to the government was that of willing servants (or coadjutors, if that word be preferred) to authority. Let us give an indubitable example of the use made of the commons by the Irish council. On 20 March 1472, as we have already related,34 a violent dispute had taken place at a meeting of the council, in the course of which the chief baron of the exchequer, Sir John Cornwalsh, had reviled and rebuked the earl of Kildare, then deputy. The consequence was that, in the parliament that met on 4 December following, the 3 3 The marriage had taken place before 21 June 1444, when the Hospitaller, Thomas Talbot, who was acting in Ormond's interest, was termed his kinsman (Graves, Roll of King's Council, p. 3 1 2 ) . It is significant that this man was appointed to succeed Thomas fitz Gerald as prior of Kilmainham when the latter was deposed, apparently toward the end of 1446, after the failure of his appeal of treason against Ormond (Statutes, Henry VI, pp. 90, 260; below, p. 206, n. 63). John Talbot was himself appointed chancellor of Ireland on 2 September 1446 (ibid., pp. 54-58; the date is 1 2 August in Cal. Patent Rolls, 1441-1446, p. 455), and on 10 November 1451 he appointed his cousin, Thomas Talbot, prior of Kilmainham, to be his deputy (Cal. Patent Ralls, 1446-1452, p. 560). There is some difficulty about this appointment, since Edmund, bishop of Meath, appears as chancellor on 26 March 1451 (Mey's Register, fo. 66a; above, p. 193, n. 1 1 1 ) : he was presumably appointed by Ormond, then deputy lieutenant, because John Talbot was absent in England. However, the general picture of a family arrangement in filling offices is unaffected. 3 4 Above, p. 170.

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commons introduced a bill asking that Comwalsh should be deprived of his offices and suffer forfeiture. In this bill they gave a minute description of the scene and quoted the words used by Comwalsh, though of these things they could have had no direct knowledge.85 There can be only one conclusion, that the bill was prepared at the instance of the outraged deputy. This bill had its genesis in a purely domestic quarrel of no public significance, but in large issues as in small the commons are found unmistakably playing the same part. In a later chapter we shall describe how, long before Poynings' Law restricted Irish legislation to bills approved by the government in England, directions given by the king were introduced into the Irish parliament in the form of bills presented by the commons.89 The king s wishes were, in the end, absolute and binding upon all assembled in parliament, as they were upon his representative, and upon the privy council, who were his servants. And while we cannot speak in the same breath of the wishes of the king and of his representative, yet we may discern a large measure of respect for authority in the many bills put forward by the commons as their own that plainly served the interest or the desires of chief governors—lieutenants, deputies, justiciars. The chief governor did not always feel precluded from putting forward his requests in his own name, even though, as the king's representative, he presided over the assembly. Thus the earl of Kildare, when deputy to the duke of York, prayed in a parliament in 1456 that the recognizances into which he had entered in the Irish chancery might be canceled,37 while, in 1467, the earl of Worcester, when deputy for the duke of Clarence, headed a group of petitioners, including his wife and the earl of Kildare, who wished to found a chantry and sought statutory authority.38 Such instances are rare and may perhaps be counted as vagaries, for, after the modification of procedure which we have noticed in 1450, there seems to have been no difficulty in persuading the commons to adopt any proposal for which the chief governor desired to obtain parliamentary sanction. The earl of Kildare, as deputy in 1455, 1458, 1459, and as justiciar in 1470; the duke of York, as lieutenant in 1460; the earl of Desmond, as deputy in 1463 and 1465, alike received all the support they could want. Kildare's 33 36 37 38

Statutes, 12-22 Edward IV, pp. 8-10. Below, pp. 265, 268, 273, 276. Statutes, Henry VI, p. 438. Statutes, 1-12 Edward IV, p. 454.

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wish to be relieved of the duty of holding the sessions in Meath (of which he was steward) while he was responsible for the government of Ireland, was obviously one that the commons should respect; 39 but his desires to be relieved of recognizances into which he had entered,40 to be allowed to change the weekly market day at Kildare, and to hold an annual fair there,41 or to provide for the succession of his heir without strict compliance with the law, 42 were evidently matters of favor. The object of the duke of York in 1460 was to safeguard the Yorkist cause in Ireland against a Lancastrian king. He obtained the agreement of the Irish council that the letters patent under which he held the lieutenancy should be regarded as valid for the full term of ten years, 43 and he then devised a series of measures, the purpose of which was, first, the formal ratification of his patent, and then the exclusion from Ireland of any writ or order, countermanding his appointment or denying his authority, that might come from the king.44 The commons put forward all the bills the duke wished. At their instance he was provided with a force of archers45 and, to add to his resources, they introduced an act of resumption.46 Prominent Lancastrians were impeached. 47 The most illuminating case is that of Thomas Talbot, the prior of Kilmainham. Not only did he absent himself from parliament, but he engaged in overt opposition. An act was therefore procured, summoning him to appear before the duke to answer the charges against him and condemning him, in default, to suffer forfeiture. 48 He was intimidated and submitted;49 but, as the price of his pardon, the priory had to lease two of their estates to the duke, rent free, for three years. And, just as his impeachment was undertaken by the commons, so it was at their request that the lease received statutory confirmation.50 The commons were no less ready to accommodate the duke's friends than they were prepared to move against his opponents. Thus the earl of Kildare, who was attached to the duke as steward of •'!9 Statutes, Henry VI, pp. 354, 576. 40 Ibid., p. 352. •»i Ibid., p. 506. 42 Statutes, 1-12 Edward IV, p. 660-62. « Statutes, Henry VI, p. 676. 44 Ibid., pp. 640-46, 660-66, 742. 45 Ibid., pp. 646-48. 46 Ibid., pp. 718-22. 47 Ibid., pp. 658-60, 740-44. «Ibid., pp. 648-52. 4 9 He was required to surrender on 17 March and the lease, mentioned below, is dated 20 March. 30 Ibid., pp. 752-54-

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Meath (the duke's franchise), was, at the request of the commons, relieved of his duty of holding the sessions there,51 as he had previously been relieved when holding office as deputy. Similarly, it was at the commons' request that the duke's son, the earl of Rutland, who had been appointed chancellor, was given statutory authority to discharge the duties of his office by deputy.52 The commons were equally ready to serve the earl of Desmond while he was deputy. He, too, had an act of resumption passed in his favor.53 He received the custody of Carlow, Ross, and Dungarvan for a term of sixty years.64 A merchant of Drogheda, who had gone to the king and leveled accusations against the earl, was impeached and condemned to forfeiture.55 At the instance of the commons a letter in the earl's praise was sent from parliament to the king,66 while, among minor services rendered by them, was the statutory confirmation of the king's patent of appointment57 and of other grants to the earl.58 If from later parliaments there is less abundant evidence, the commons did not cease to promote the affairs the chief governor had at heart, the most striking instance being perhaps the elaborate bill introduced by them in 1485 to safeguard the position of the great earl of Kildare when a change of dynasty in England was in prospect.69 And though it may be difficult to select from the rolls of the rival parliaments of 1478 any single act that promotes the personal advantage either of the earl of Kildare or of lord Grey, the circumstances and the sequel reveal the dominance exercised by these men, the one as justiciar and the other as deputy, over the parliaments they summoned. But of these things we must say more in their appropriate setting.80 Now while, as we have suggested, the bills put forward by the commons on behalf of the chief governor are testimony alike to respect for authority and to his personal dominance, however attained, over parliament, we must introduce a qualification. By the side of these bills we must place many bills, also put forward by the commons, that plainly originated with peers and ministers and private persons. The 51 Ibid., pp. 688-90. 52 Ibid., pp. 746-48. 53 Statutes, 1-12 Edward IV, pp. 44-50. 5* Ibid., pp. 54-58. 56 Ibid., pp. 96-98. 5« Ibid., pp. 180-87. 57 Ibid., pp. 168-70. 58 Ibid., pp. 298-302. 5» Below, p. 326. 60 Below, pp. 263-65.

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attitude of the commons toward bills which, for want of a better term, we may call private legislation, was not likely to be quite the same as it was to a bill promoted by the government to serve a public purpose. Their concurrence in the latter might be esteemed a duty, but their concurrence in the former was a favor, though when a bill was promoted by the chief governor, it might not always be easy to distinguish between public and private purposes. But, whether public or private, a substantial portion of all the acts of the Irish parliament, and certainly the greater part of the acts that were legislative rather than administrative in character, came as proposals before the commons and were adopted by them in the form of bills presented to the council in parliament or, in modern terms, to the house of lords. And since peers and ministers were not precluded from presenting bills direct to the council in parliament, of which they were members, we must presume that there was some advantage to be gained in persuading the commons to adopt a private bill as their own. The only clues must be sought in the bills themselves, and our next step therefore must be to pass a number of them under review. So numerous were the bills presented by both spiritual and temporal peers on their own behalf that it would be wearisome to catalogue them. It is exceptional for a number of peers to present a joint petition. This did, however, happen in 1447 and the curious story then told goes to explain the unusual procedure. 61 A charge of necromancy had been brought against an unnamed Irish lord,82 whom, however, we may identify as the earl of Ormond. 63 In his defense he had asked the archbishop of Armagh, the abbots of St. Thomas and St. Mary, Dublin, the abbot of Baltinglass and other lords, prelates, and gentleStatutes, Henry VI, p. xoo. The name of the 'homme seignour' may be suppressed in deference to the lieutenant, John Talbot, earl of Shrewsbury, who, although now reconciled, had been the principal party in the Ormond-Talbot quarrel (above, p. 202). The same message to the king that exculpated the unnamed lord also thanked the king for appointing Talbot. 8 3 W e have independent evidence that the abbots of St. Mary and St. Thomas, Dublin, with the priors of Christ Church and All Hallows, and the dean of St. Patrick's, came over to England together on behalf of the earl of Ormond and were regarded as hostile b y the prior of Kilmainham and Giles Thorndon, w h o were then in London (P.R.O., C. 49/34/31, m.2). The date is not given, but the prior of Kilmainham had appealed Ormond of treason and a judicial duel between them was arranged to take place in 1446, only to be countermanded by the king (Kingsford, Chronicles of London, pp. 156-57; Graves, Roll of King's Council, pp. I-li). It would seem evident that a charge of necromancy had been trumped up in case the charge of treason failed. 61

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men to testify to his innocence. They did so and expressed themselves skeptical of the possibility of employing witchcraft to destroy any man. Thereupon they were summoned to England, where, after examination before the king, they were discharged. Still, the matter rankled and, on their return, they presented a bill in parliament, asking that a message might be sent to the king testifying to the absence of witchcraft in Ireland and thanking him for his kindly treatment of those summoned before him. Normally, however, the bills presented by peers resemble other private bills and relate to their private interests. Such bills, it should be remarked, are very much more numerous than the bills presented by the commons on behalf of peers. The earliest of these exceptional bills are represented by anonymous entries on the roll of 1447 which, for the reasons already explained, are assumed to represent bills for which the commons made themselves responsible. TTiese entries relate to a claim by Thomas Bathe, lord of Louth, to the office of escheator against John Pilkington,64 a request of the archbishop of Dublin that his town of Dunlavin should be discharged from tallages, subsidies, coign, and livery for a term of five years,65 and a similar request from the prior of Kilmainham in respect of a lordship of his.*8 Another entry of this kind reverses the existing law, which provided that lords of parliament should be amerced at a higher rate than other persons.67 In 1449, as the parliament roll specifically states, the commons requested that the bishop of Limerick should be pardoned an amercement inflicted because his proctor departed, without license, from a great council.68 Similarly, it was at the request of the commons that in 1445 indictments against the archbishop of Armagh were quashed,69 and that, in 1460, proceedings against the archbishop of Dublin were also quashed.70 The commons intervened in 1462, 1463 and 1472 to protect peers from breaches of privilege: immunity from legal proceedings or from arrest of themselves or their servants during parliaments and great councils.71 In 1463 the commons presented petitions on behalf of the abbot of St. Thomas, Dublin,72 and in 1468 they prayed for the confirmation of the patent by the earl of Worces64

Statutes, Henry VI, pp. 84-88. Ibid., p. 90. 86 Ibid., pp. 90-92. 8T Ibid., pp. 98-100. «8 Ibid., p. 154. «»Ibid., pp. 382-84. f« Ibid., pp. 706-8. T1 Statutes, 1-12 Edward IV, pp. 6, 120, 872. 72 Ibid., pp. 160-64. 65

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ter, then deputy, creating Robert Bold a lord and baron of all parliaments and great councils under the style of lord and baron of Rotoath.73 Finally, we may notice how in 1476 they took up, on behalf of the bishops, the question of dilapidations to episcopal property during the voidance of a see, when the temporalities were committed to guardians. 74 In the case of ministers the position was parallel. We find ministers presenting bills on their own behalf, as when, in 1447, the chief justice and second justice of the king's bench, the chief baron of the exchequer, and the clerk of the crown all ask for confirmation in their offices, 75 while in the same year there is a series of anonymous entries protecting the interests of ministers generally: they may pass by sea from one part of Ireland to another without loss of office; 76 they may purchase lands and other property; 77 if they are required to leave Ireland, they are protected in the possession of their property and offices until their return.78 We might be tempted to see here a distinction between private and public bills, did we not find, in 1447, a petition from the commons on behalf of the chancellor to enable him to appoint a deputy, 79 and, in 1450, a series of bills from the commons for the confirmation in their offices of the chief justice of the common bench, the chief baron of the exchequer, the master of the rolls, the second baron of the exchequer, the king's serjeant-at-law, the king's attorney and the clerk of the council.80 Again, it is at the request of the commons, in 1458, that the second engrosser of the exchequer is confirmed in his office, 81 and, in 1462, that William Welles 82 and, in 1463, that the earl of Kildare, 83 are confirmed in the chancellorship.84 It is, then, plain that, as we have already stated, peers and ministers, who were in no way precluded from presenting their own bills, nevertheless on occasion preferred to proceed by way of the commons. 73

Ibid., pp. 622-24. Statutes, 12-22 Edward IV, p. 370. 75 Statutes, Henry VI, pp. 5 8 - 7 2 . 76 Ibid., p. 70. 77 Ibid., pp. 76-78. 78 Ibid., pp. 80-82. 79 Statutes, Henry VI, pp. 5 4 - 5 8 . The chancellor is John T a l b o t , son of the earl of Shrewsbury, then lieutenant. 80 Ibid., pp. 2 6 2 - 7 8 . 81 Ibid., p. 5 2 2 . 82 Statutes, 1-12 Edward IV, p. 30. 83 Ibid., pp. 166-68. 84 For examples of lesser offices similarly confirmed, see ibid., pp. 1 7 4 , 176. 74

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Moreover, there would seem to have been no classification by subject matter to determine whether any particular bill should be presented in one way rather than the other. And then there are the fairly numerous instances where the commons adopt as their own the petitions of persons or bodies with none of the privileges which we may suppose a peer or a minister enjoyed. Let us take some typical examples. The alien priory of Fore had been seized into the king's hands and in 1449 Brother William Crose was the farmer (or, as we should say, the lessee), although evidently he was a religious.85 The commons asked that he should be constituted prior and that when, in future, the office became vacant, his successors should be elected by the monks. Some years later one Edmund fitz Simon was provided by the pope to be prior (on the allegation that Crose was totally unfit) and commenced proceedings in order to put himself in possession of the priory. Again the commons intervened and, at a great council in 1455, prayed that proceedings should be taken against fitz Simon and his supporters.86 Now it may well be that the bill of 1449, which, in effect, reestablished the priory as an independent convent, was promoted by the council, but the bill of 1455 would seem undoubtedly to have been promoted by the prior. Let us take a parallel case. In 1452 John Cantwell had been provided by the pope to the archbishopric of Cashel.87 In 1456 at the prayer of the commons an act of forfeiture was passed against him. He was charged with the purchase of the pope's bulls without the king's licence—though this is hard to believe—and with failure to obey writs of summons to parliament.88 But in 1458, again at the prayer of the commons, this act was repealed on the ground that the archbishop was detained by sickness at the time appointed to him to appear in the chancery if he was to avoid forfeiture.89 Quite obviously he had become reconciled with the government, and it is possible that the bills, both of 1456 and 1458, had been promoted by the council, but the latter bill was undoubtedly introduced at the instance of the archbishop, who, when under sentence of forfeiture, can hardly have been summoned to parliament as a peer. 8 5 He had obtained letters patent for this purpose in England in November 1448 (P.R.O., E. 28/78: warrant of 10 November, 27 Henry VI; Cal. Patent Rolls, 14461452, p. a n ) . He already calls himself 'prior.' 86 Statutes, Henry VI, pp. 144-46, 300-304; Cal. Papal Registers, Letters, 14471455, PP- 673-76, 7°987 Ibid., p. 601. 88 Statutes, Henry VI, p. 454. 8 » Ibid., pp. 496-98.

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While these examples may indicate the difficulty of reconstructing the procedure in particular cases—the more so since there must obviously have been, as a rule, a good working understanding between the council and the commons—they show also, and quite unmistakably, that the commons were a channel for bringing private interests before parliament. This point may be illustrated also by a number of cases where the commons intervene in order that some alleged miscarriage of justice may be righted. The prior of Ardee is indicted before justices of the peace and, at the request of the commons, the indictment is quashed. 90 Two clerks beneficed in the diocese of Meath have been found by inquisition to be Irish, and therefore unlawfully presented and instituted: again at the request of the commons the inquisition is quashed on the ground that the clerks are English. 91 In like manner, another inquisition is quashed on the ground that the parties are children and cannot tender a traverse at common law, 92 and other indictments are quashed because they have been procured by 'malice prepense.'93 Then, again, there are cases arising out of proceedings in the town of Galway, where actions were tried by the civil law and not by the common law: it was at the instance of the commons that the trials were transferred to the common bench.94 Doubtless in all these cases there is an element of public interest, but even this is absent from others which are brought before parliament by the commons. Some merchants of Bordeaux desire denization;95 licences to accept gifts of land are desired by churchwardens or a priory;96 the black friars of Naas desire confirmation of a royal grant of a watermill; 97 the purchasers of a wardship seek assistance in asserting their rights against the mother and friends of the ward. 98 And so we might continue. Perhaps we should put into a separate category the fairly numerous instances in which the commons present a bill on behalf of some local community—a county,99 it may be, or a town, such as Dublin, 100 DrogIbid., pp. 466-68. Ibid., pp. 6 1 8 - 2 2 . 92 Statutes, 1-12 Edward IV, pp. 694-96. 93 Ibid., pp. 868-70. 94 Ibid., pp. 8 1 8 - 2 4 , 886-88: cf. Statutes, 12-22 Edward bill. »5 Statutes, Henry VI, p. 386. »« Statutes, 1-12 Edward IV, pp. 6-8, 1 2 2 , 188. 97 Ibid., pp. 2 5 2 - 5 6 . »8 Ibid., pp. 50-54. 99 Statutes, 12-22 Edward TV, pp. 2-8, 2 1 4 . 100 Statutes, 112 Edward IV, pp. 20, 2 7 4 - 7 6 . 91

IV, pp. 5 7 0 - 7 6 , a private

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heda,101 Kells,102 Youghal,103 or Wexford: 104 they will do so even on behalf of a couple of townships.105 Still, there is no more reason why the commons should act on behalf of a local community than that they should act on behalf of private persons. It may be that when the commons of a particular county present a bill,106 the knights returned to parliament act on their behalf, and a bill presented by the commons and clergy of the diocese of Dublin, relating to the collection of subsidies,107 may have been presented by the knights and proctors jointly. Similarly we may suppose that the burgesses acted on behalf of the towns that returned them.108 And evidently members of the common house would have unusual facilities for persuading the commons to take up a matter of local interest. But if we regard the substance of the bills, it is impossible to discern any quality which will serve to distinguish bills that might be regarded as appropriate to be presented by the commons from bills more appropriately presented to parliament by the petitioners themselves. The question seems never to be put whether the subject matter was appropriate to one kind of bill rather than the other. Taken as a whole, it seems true to say that the majority of the bills presented by the commons over the period we are reviewing were on matters of public interest: but this very fact puts the minority into sharper relief. There was evidently some procedural advantage to be gained if the commons could be persuaded to adopt a bill as their own. It would seem that, whatever was the subject matter of the bill presented by the commons, it was presented to the chief governor and lords in open parliament,109 and that any argument or explanation fell to the speaker. Argument and explanation are likely to have been brief. Ibid,., pp. 586-92; Statutes, 12-22 Edward IV, p. 52. Statutes, 1-12 Edward IV, pp. 742-46. >«8 Ibid., p. 86. 104 Ibid., pp. 140-42. i«5 Statutes, 12-22 Edward IV, p. 170. 1 0 6 E.g., Statutes, Henry VI, pp. 224, 240, 284, 334, 402, 418, 454, 502, 632; Statutes, 1 - 1 2 Edward IV, pp. 14, 64, 146, 206, 508, 666, 684, 806; Statutes, 12-22 Edward IV, pp. 138, 258, 442, 484, 590. 10' Ibid., p. 482. 108 Statutes, 1-12 Edward IV, pp. 130, 824; Statutes, 12-22 Edward IV, pp. 52, 101

376, 446, 506. The representatives of Drogheda were "knights': they presumably

acted on behalf of that town (Statutes, Henry VI, p. 600; Statutes, 1-12 Edward TV, pp. 604, 634).

10» Cf. Statutes, Henry VI, p. 230: 'un supplicacioun fait par lez communes en

le dit parlement assemble al dit count, donque lieutenaunt, et a touz lez seignurs espirituelx et temporelx.'

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Evidently this must be true of the bills introduced on behalf of the Irish council or the Crown, and we may presume that the rule extended to all bills introduced by the commons. It does not follow that bills promoted by private petitioners and adopted by the commons were necessarily approved by the lords and accepted by the chief governor, but all knowledge of rejected bills is lacking. The support of the commons may have recommended a bill to the lords, but it is possible that the chief gain in persuading the commons to adopt a private bill was a gain in time. If we may assume that bills were enrolled upon the parliament rolls approximately in the order in which they were sanctioned, then the position they occupy on the roll indicates that bills presented by the commons had precedence over other bills, even those presented by peers, and presumably were more certain of a decision before the session ended. And while we cannot be sure that every bill had to be considered by both lords and commons, it is certain that many bills came before both houses, and there is direct evidence of a bill addressed to the lords being referred to the commons. 110 Sometimes duplicate bills seem to have been addressed to the lords and the commons, and in this way we may explain duplicate entries of acts, such as those in favor of Jenico Dartas in 1459 1 1 1 or of the prioress of Termonfechin in 1478. 1 1 2 The entries on the roll were made from the bills, and if there were two bills to the same purpose on the file, a careless clerk might easily make two entries. That bills were addressed direct to the commons is undoubted. In 1468 they present a bill 'at the humble supplication of one, William Sutton,' who, though this is not stated, is a baron of the exchequer. 113 In 1472 they refer to a record annexed to a bill put forward (by certain complainants) in parliament, though in this case it seems possible that the bill may have been referred to the commons and not addressed to them. 114 These details it is necessary to mention because the procedure of the Irish parliament in the fifteenth century is far more obscure than that of the contemporary English parliament and we cannot assume that English procedure was followed in detail in Ireland. 115 The point of 110

Statutes, Henry VI, pp. 360-62, 524-26. Statutes, Henry VI, pp. 616, 634. 112 Statutes, 12-22 Edward IV, pp. 420, 456. Duplicate petitions were known in the English parliament: see Gray, Influence of the Commons on Early Legislation, 111

PP- 354-56.

" 3 Statutes, 1-12 Edward IV, p. 488. Ibid., p. 818. 118 For the English practice of referring bills to the commons, see Gray, op. cit., pp. 366-67.

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substance is that many bills, however addressed, came before the commons and that, since this stage must be gone through, the parties interested may have saved time by taking that stage first and by arranging for the commons to adopt the bill as their own. The result was that, although the great majority of acts contained in the parliament rolls are in the interest of private parties, a large proportion of the bills were presented by the commons. In the latter years of Henry VI, between 1447 and 1460, the commons presented a little less than half the total number of bills recorded: 118 in the reign of Edward IV, when the number of bills had markedly increased, they presented a little less than one-third.117 Nevertheless it is clear that the lords and ministers, who composed— though they were not usually termed, as formerly—the council in parliament, continued to be the sole tribunal. What seems to have disappeared, perhaps as the result of the evolution of the house of commons, is the expert ministerial body which, in the fourteenth century, subjected private bills to a preliminary examination:118 triers of petitions were not appointed in the Irish parliament in the fifteenth century as they still were appointed in the contemporary English parliament. On the other hand, we have scattered, though convincing, notices of the activities of the council in parliament. For example, a petitioner in 1463 alleges that Nicholas Barnewell, the chief justice of the king's bench, had failed to account for certain rents he has, or should have, received, and it is directed that Barnewell, who is present in parliament, shall be examined before the deputy and council in parliament or at such other times as the deputy should appoint.119 In 1468, in the case of an alleged disseisin, the disseisors are ordered to appear in parliament before the lords spiritual and temporal.120 It was apparently in 1470 that John Cornewalsh, chief baron of the exchequer, turned upon Robert Bold, lord of Rotoath, before the deputy, chancellor, treasurer, all the lords spiritual and temporal, and the council in open parliament, and accused him of bringing back a forged reply to a message that had been sent to the king. 121 In 1478 we read of a deed that, at some previous parliament, had been proved to be false before 116 Including anonymous entries (above, pp. 197-98), the total appears to be 1 4 1 out of 304. 117 Apparently 2 5 7 out of 783. 118 Above, pp. 92, 107-8. 119 Statutes, 1-12 Edward IV, p. 242. 12 ° Ibid., p. 582. 121 Statutes, 12-22 Edward IV, p. 56.

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the lords in the frater of Christ Church, Dublin. 122 These various descriptions seem plainly to refer to the same tribunal, whether its members are termed the council or the lords and whether both are mentioned, and we must infer that it was before this tribunal that the case set out in a private bill might be argued and the parties examined, though we may doubt whether the procedure was usually so rigorous. We have already mentioned Sir Gilbert Debenham's "bill of lamentable complaint' presented to the lords spiritual and temporal, who appointed a day for the offenders to appear before them. 123 The experiment of appointing a committee of lords to report on questions before parliament was tried for a short time, but apparendy it was limited to cases where petitioners applied for the reversal of an act of attainder passed against them. The repeal might be made conditional upon the report of two or three peers on the conduct of the petitioners. In one instance the sovereign of Kilkenny was added to a committee, 124 but the commons did not participate in these committees and it seems clear that the report was intended to be made to the lords in the next parliament. Six committees were appointed in the parliament of 1458, 125 but it is doubtful whether the invidious duty of investigating the conduct of unruly and violent men in a turbulent land was even perfunctorily performed. In 1460 it was recorded that there was no trace of the report of a committee that should have been presented in the previous year, although there was evidence that most of those whose attainder had been provisionally reversed had since ridden, with banners displayed, against the king's subjects, burning and despoiling. 126 And though another committee was appointed in 1463, 127 thereafter the experiment appears to have been dropped, and there is no evidence that committees of investigation were appointed to consider other matters. Where questions of law were involved, bills might be drafted by counsel, 128 and this suggests that counsel might appear at the bar in support of bills. How often this happened we cannot tell, and we must !22 Ibid., p. 606. 123 Above, pp. 193-94. 124 Statutes, Henry VI, p. 530. 125 Ibid., pp. 530, 532, 538, 560, 564, 570. 126 Ibid., pp. 738-40. 127 Statutes, 1-12 Edward IV, p. 192. 128 Statutes, Henry VI, p. 776; below, p. 219. Similarly counsel were employed to draft provisos to acts of resumption (Bryan, Great Earl of Kildare, pp. 49-50; Cal. Ormond Deeds, iii. 243-44).

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not generalize and ascribe to parliament too much of the character of a court of law, for though many legal issues perforce came to parliament and parliaments and great councils were accounted to be 'courts royal' of the same kind as the chancery, the king's bench and the exchequer, 129 there are indications that not a little of the work of parliament was hasty and perfunctory in its performance. And, of course, the atmosphere and procedure of a court of law are not appropriate to decisions on matters of grace which largely form the content of private bills. But when all reservations have been made, the judicial aspect of parliament is still of great importance. From the beginning men had resorted to parliament to seek a remedy for wrongs that the ordinary course of the law would not right; and the decay and impotence, if not the corruption,130 of the courts of common law, rendered resort to parliament more than ever necessary in fifteenthcentury Ireland. The expense, too, of litigation debarred some from access to the courts. Again, the developing equitable jurisdiction of the English chancery seems to have influenced Ireland in creating a demand for like equitable remedies from the Irish parliament, and we meet increasingly with turns of phrase reminiscent of English bills in chancery: the matter of complaint is 'against law and conscience' or 'without conscience or reason' or 'without right, just title, conscience and law.' Our evidence does not go back beyond the year 1455, when the parliament rolls begin to record the bills of those who justify their resort to parliament because, for one reason or another, they have no remedy at common law; but the silence of earlier rolls does not mean that such bills had not previously been presented, for, as we have seen, in the middle of the century there were changes in the method of enrollment and the contents of the rolls. Of those who pleaded poverty as a reason for coming to parliament instead of proceeding by way of the common law, we need not say 129 P.R.O., E . 101/248/16, m . i ; below, p. 261. 130 gee above, pp. 174-76. The impotence of the courts was a grievance of long standing and was the outcome of the inability of the government to maintain order. At first the complaints relate to outlying districts, as in 1342 (Cal. Close Rolls, 13411343, P- 5°9; Early Statutes Ireland, p. 334). Later the complaint is more general and the allegation of corruption is made. Thus in 1396, during the lieutenancy of Roger Mortimer, earl of March, when William le Scrope, as justiciar, presided over the king's bench, it is said by the Irish council that *le dit justice n'ose mye ne sache ne poet justicer nully de sa mesprisioun solonc la leye, pur poure (peur) d'estre ars ou tu6z ou a cause d'alliaunce, affinity on brocage' (Lambeth MS. 619, fo. 207). The administration of justice in the king's bench under Edward IV is presented in a very adverse light in the allegation against Bamaby Bamewell, the second justice, in 1478 (Statutes, 12-22 Edward TV, p. 632).

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much. Doubtless in some cases the poverty was real enough; 131 but sometimes lands to which the petitioners had a title had been seized into the king's hands, 132 and when we find among them the prior of Connell, who was a lord of parliament, 133 we may suspect that their poverty might be relative only. Any man might well avoid the ordinary course of the law if he had to proceed against the Crown and if ministers were unfavorable or obstructive. Small men were no less reluctant to sue against the rich and powerful, against Thomas Bathe, lord of Louth, 134 or his brother Bartholomew 135 or the sheriff of Louth 1 3 6 or the prior of St. John the Baptist, Dublin: 1 3 7 they felt that the scales of justice were weighted against them. Or the petitioner might mistrust the impartiality of the jury, like Davy Keting, who asserted that the gentlemen and freeholders of Wexford were all cousins of the parties. 138 In the Marches the ordinary processes of the law might be unavailing. None of the inhabitants of the county of Kilkenny, it is said, will answer at common law, 139 and a writ of 'praemunire' directed to the sheriff could not be executed. 140 A petitioner who had recovered his seisin before the steward and justice of Tipperary, and had then been ousted by the defendants, had no hope of recovery by common law. 1 4 1 And there were many in Ireland who defied the law, and the king's officers were powerless to bring them before the courts. 142 Parliament might then be besought to intervene. Similarly, the aid of parliament might be invoked, either to enforce or provide a remedy, if a party were beyond the seas or on the point of departure, such as an executor resident in England 143 or one of the king's chaplains 144 or a student about to set out for London to study at an Inn of Court.14"' In many cases the reasons advanced for not proceeding at common law may have been no better than excuses to justify a private bill, and we 131

Cf. Statutes, Henry VI, p. 616; Statutes, 1-12 Edward IV, pp. 506, 582, 866. Statutes, Henry VI, p. 694; Statutes, 1-12 Edward IV, pp. 420, 512-14. Statutes, Henry VI, p. 782. 1 3 4 Ibid., p. 688. 135 Ibid., p. 702. 136 Statutes 1-12 Edward IV, p. 522 137 Statutes, 12-22 Edward IV, p. 638. 138 Statutes, 1-12 Edward IV, pp. 776, 782, 786. 139 Ibid., p. 392. «0 Ibid., p. 636. 141 Statutes, Henry VI, pp. 622-24. 142 Statutes, 1-12 Edward IV, pp. 382, 388, 412. 1« Ibid., p. 598. 144 Ibid., p. 460. 145 Ibid., pp. 210-12. 132

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must not take them too seriously, though obviously men would not resort to parliament if there were an easy remedy available elsewhere. The cases, which came before parliament because men could not afford, or despaired of, justice in the courts of common law, do not fall in a class apart from those cases where the common law afforded no remedy. Petitioners make use of the same procedure and, often, of much the same language in very different circumstances. And if we say that parliament is in some cases giving an equitable remedy, we must make it clear that the distinction we are drawing is not necessarily a contemporary one. The point of view of the petitioners was rather that their reason for resorting to parliament was that otherwise they would suffer a default of justice, whatever the cause, be it their own poverty, the influence of mighty adversaries, the breakdown of administration or the inadequacy of the law. This was no singularity: the bills presented to the chancellor of England at this period were conceived in exactly the same spirit and in much the same words;148 they were as heterogeneous as the bills in the Irish parliament from petitioners who protested that they had no remedy at common law. We cannot doubt that Irish lawyers, trained for the most part in a London Inn of Court, had sufficient knowledge of the practice of the English chancery to engraft it upon Irish institutions, though we may be surprised that their influence was inadequate to enlarge the jurisdiction of the Irish chancery, which did not, in the course of the fifteenth century, emerge as a court of equity. We have said enough of bills presented on the ground that the petitioner was in some way prejudiced in the courts of common law, and we may turn to bills which requested a remedy on grounds of reason and conscience, the distinctive characteristic of equity. Let us take one of the earliest cases recorded. Christopher Plunket, lord of Killeen, had been taken prisoner by Stephen Derpatrick, a notorious disturber of the peace,147 who demanded a ransom. This was provided in the form of a bond given by another peer, Christopher Fleming, baron of Slane. On the outlawry of Derpatrick the bond passed to the Crown or, in other words, to the profit of the earl of Ormond, then deputy, who required Fleming to redeem the bond by a payment of £ 100, which was apparently the amount specified in the defeasance. Before Fleming had recovered anything from Plunket he died, and his 146 Cat. Proc. in Chancery, i. pp. xix-cxi; Baildon, Select Cases in Chancery, pp. 129-58. These references are to bills presented under Henry VI and Edward IV. 147 Statutes, Henry VI, pp. 297, 440, 480.

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widow, as administratrix, had no remedy at common law. She therefore presented a bill in the great council of 1455 and was awarded 100 marks, payable by Plunket in half-yearly installments.148 Another case, in the following year, also arose out of the unsettled conditions of the fifteenth century, on this occasion at sea. The passengers in a ship bound for England were captured by Breton privateers and, according to recognized custom, were put to ransom. Terms having been arranged, some of the captives were retained as sureties for payment, the others being set free. However, some of the promised ransoms were not forthcoming and, to obtain his own release, the only man of means among the sureties was compelled to find the whole of the balance. He subsequently requested the other members of the party to contribute, but they refused 'wrongfully and against conscience,' and since he had no remedy at common law, he, like Jenet Fleming, presented a bill in parliament. He was authorized to bring an action of debt in any of the king's courts or in the franchisal court of Meath against all his fellow prisoners for a reasonable contribution towards his expenses and losses. 149 More arresting perhaps than these two cases is that of Margaret Nugent, daughter of lord Delvin, who was married to William Butler of Dunboyne. After some years of wedlock, William brought an action in an ecclesiastical court—maliciously, it was said—and was separated from Margaret. Her father then sought the return of her dowry but could not recover it at common law. Meanwhile William had been adjudged to forfeiture as a traitor and his lands seized into the king's hands. 150 Lord Delvin therefore presented a bill in parliament and was given authority to recover the amount of the dowry from William's lands. 151 Shortly afterwards William was slain in rebellion with O'Connor, and Margaret thereupon presented a bill asking for her dower. Notwithstanding the decree against her, she was recognized as William's lawful wife and was granted her widow's third. 152 The process of reasoning by which this decision was reached is far from clear, but it would seem as though, in the interests of justice, parliament set aside the judgment of an ecclesiastical court in a matri148 Ibid., pp. 306-10. As told above, this illuminating story, which concerns some of the greatest people in Ireland, is necessarily simplified. Another name to be mentioned is that of Bartholomew Bathe, brother of the lord of Louth, who plays an obscure part in the transactions. Ibid., pp. 482-88. 150 Ibid., pp. 360-64. His forfeiture was not reversed, as in the case of some of his fellows (ibid., pp. 526-30). !»i Ibid., p. 516. Ibid., pp. 714-18, 764-66.

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monial cause. Another instructive case arising out of a matrimonial cause is that of Katherine Fleming. Katherine had been married to James Bathe but discovered that before the marriage her husband had had a liaison with her cousin. She therefore brought an action for divorce and obtained a decree, which annulled the marriage and required to be restored to her all her goods and chattels and the profits arising from her lands during the union. Her divorced husband did not comply with the decree, which could not be enforced at common law, and Katherine therefore presented a bill in the parliament of 1460. Upon this she was authorized to bring an action of debt in one of the king's courts or a franchisal court, subject to the proviso that the bill 'contained truth.' The facts, however, had been wrongly stated, in that it had been alleged that the husband, and not the wife, had brought the action for divorce. Consequently, in the same parliament, Katherine presented a second bill, amending the first and explaining that the error was due to the counsel, who had drafted the first bill and had not been able to see a copy of the decree. The petitioner was now given an alternative remedy. She was authorized to proceed by bill in the chancery to the end that a writ of 'sub poena' should be served upon the husband: if he failed to appear, the penalty was to be exacted and half of it paid to the petitioner, the remainder accruing to the chief governor.153 The details we are given in this case are important for the light they throw upon procedure. We learn quite conclusively that the Irish chancellor did not claim equitable jurisdiction and that he required the authority of parliament, not only to adjudicate in equity, but also to issue the characteristic writ of an English court of equity, the 'sub poena.' We see too that a remedy was given on the ex 'parte statement of a petitioner, but that the remedy was provisional only and that the facts required to be established before a competent court. Lastly, we should notice that the preparation of a bill in parliament has become a professional matter upon which lawyers were engaged, though in this case counsel was not so prudent as we should expect. It is, in sum, quite evident that what is being attempted is to graft on to the Irish system of judicature the principles and practices of English equity. Sufficient has perhaps been said to show the manner in which equitable remedies were afforded and we need discuss few further cases in detail, but a little more may suitably be added on the subject matter of other bills, which will serve to strengthen the parallel we have drawn 153 Statutes, Henry VI, pp. 698-700, 772-78.

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between the English chancery and the Irish parliament. Executors who are pressed to pay the amount of a bond, which has, in fact, been discharged and is Void in conscience,' come to parliament for relief, 154 and debtors ask for the review of usurious bargains that are 'against conscience and all spiritual law.' 1 5 5 A husband desiring to make provision for his widow transferred lands to feoffees for uses, in trust to make her an estate for life: this the feoffees did, but she was ousted by a relative of her late husband under Brehon law: she is restored to the possession of the land 'as law and conscience require,' and the parties are left to settle their dispute at common law. 1 5 6 Certain merchants of Drogheda, trading to Iceland, left one of their number there as their agent to dispose of their merchandise, knowing that, under Icelandic law, if their agent stayed beyond a certain date, he would lose control of the goods in his charge and be in danger of his life. They failed to send a ship in time; the complainant had no remedy at common law, because the acts were committed beyond the jurisdiction of the courts; the defendants are required to appear in chancery and, on the truth of the allegations being established, to indemnify the complainant. 157 These cases, taken from different rolls, illustrate the diversity and range of equitable suits brought by bill in parliament, but to complete the picture w e may perhaps conclude with the outlines of four cases, all coming close together on a single roll, that of 1478. The prior of Kilmainham has been deprived of an appropriated parish church 'against all laws and conscience': he has brought an action before judges delegate, but the defendants were contumacious.1"'8 The dean and chapter of Kildare have sealed a bond for money borrowed by Richard Lang, their 'pretended' bishop: 1 5 9 the temporalities are in the king's hands and the creditors have sued the dean and caused him to be outlawed 'against all law and conscience.' 160 The tenants and in154

Statutes, 1-12 Edward TV, pp. 526-28: cf. Cal. Proc. in Chancery, i. cviii-cix. Statutes, 1-12 Edward TV, pp. 134-36; and for a similar case, see ibid., pp. 356-6o. 166 Statutes, Henry VI, pp. 544-46. ibid., pp. 696-98. 158 Statutes, 12-22 Edward TV, pp. 616-18. 159 Why Richard Lang should be called 'pretended' bishop is obscure. He occupied the see from 1464 to 1474, attended parliament, and was high in favor with the government both in Ireland and England (Statutes, 1-12 Edward TV, pp. 344, 370, 590, 608; Cal. Patent Rolls, 1467-1477, p. 259). He is, however, called 'pretended' bishop in a bill presented to the parliament of 1472 by a complainant, who was aggrieved by some act of the bishop's while he was administering the temporalities of the see of Armagh (Statutes, 12-22 Edward TV, pp. 66-68). 180 Statutes, 12-22 Edward TV, pp. 628-30. 156

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habitants of Baldoyle are vexed by the admirals of Ireland and their deputies under the Law of Ol&ron: they have condemned them to inordinate amercements 'against all law and conscience.'161 A miller, to whom his office as miller has been granted by a former prior of St. John the Baptist, Dublin, has been ousted by the present prior 'against law': the prior is a lord and powerful and has lawyers in his service, and the petitioner has no remedy at common law because he has not the means to sue.162 But with this last case we come back to the borderland where the failure of the common law and the impotence of the poor to withstand the rich are fused in a single protest against default of justice. There may be some danger lest, in classifying bills as we have done, we leave an impression of method and principle that those who directed or participated in parliamentary proceedings in Ireland were far from attaining. The impression of one who reads the rolls from end to end is likely to be different: he will feel rather that the work of parliament was, on the whole, ill-performed, that it was often hasty, perfunctory, and ill-conceived. Irish administration had long been inefficient, with the inefficiency of a remote, bankrupt and neglected borderland province, and the political hatreds of the fifteenth century added their own contribution of weakness and confusion. The personal animosities of Butler and Talbot, and of Butler and Geraldine were intensified by the identification of Irish partisans with Lancastrians and Yorkists. The earls of Ormond followed the fortunes of Lancaster, the earls of Kildare, the fortunes of York. And Butlers, Talbots, and Geraldines alternated in the control of the Irish government for the greater part of the century. Inevitably politics invaded parliament, and political animus, the bitter personal animus of the fifteenth century, found expression in parliamentary bills. As we have recounted, the procedure of parliament was employed to wrest Ireland from the control of the king's government and to proscribe opponents of Yorkist rule:163 here we need add but one illuminating example of partisan insipience. In the Yorkist parliament of 1460 it was decided to strike at Thomas Bathe, lord of Louth, against whom there was scarcely colorable ground for complaint. Very little could be made of his dispute with John Pilkington over conflicting grants to the escheatorship, a dispute 161

Ibid., pp. 636-38. 2 Ibid., pp. 638-40. 183 Above, pp. 204-5.

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in which he had been sustained by the Irish parliament in 1447. 164 He had been neither worse nor better than other occupants of offices of profit under the Crown, and in any case this office had, after a few years, been abolished. 165 But he had a private enemy, Master John Stackbolle, doctor of laws, who had been appealed of treason, not by Bathe himself, but (so Stackbolle said) by one of his servants. Stackbolle had been put on his trial in England before the constable and marshal and had been acquitted, though in some way Bathe, it seems, had obtained possession of his chattels. Instead, however, of bringing an action, Stackbolle procured a bull directed to the bishop of Meath, calling upon Bathe to make restitution. This he failed to do and he was in consequence publicly excommunicated. The rest of the story is best told in Stackbolle's words: In this state of excommunication the said Thomas still remains, pursuing his malicious, inhuman and diabolical obstinacy against the Church of God. And with the urge and gratification of his malice yet unassuaged, he sent certain of his varlets to Navan Abbey, where Master John then was, who thrust him violently out of the church of our Blessed Lady and carried him to Wilkinstown, where they held him prisoner, cutting out his tongue and (as they believed and intended) putting out his eyes. This done, he was again carried to the church and thrown down before our Blessed Lady, by whose grace, mediation and miracle, sight and tongue were restored to him. There is less room for wonder at the brazen effrontery of this incredible liar 166 than at the complaisance of the commons in adopting his story in a bill solemnly presented to the lords. It is evident that the accused peer was afforded no opportunity for answer or defense, for he was absent in England. 1 6 7 The farce was completed by his forfeiture. He was ordered to be deprived of his place in parliament and declared incapable of holding any office. 168 The act could have caused him, however, but temporary inconvenience. He was present, as lord of Louth, in the parliament of 1462, 1 6 9 and a subsequent statute protected him from any possible consequences of forfeiture. 1 7 0 164

Statutes, Henry VI, pp. 84-88; below, pp. 255-60. Ibid., pp. 356, 654. The date assigned to the statute cannot be correct. 1 6 6 For a little more information regarding Stackbolle, see Cal. Papal Registers, Letters, 1458-1471, pp. 284-85. 1 6 7 With Statutes, Henry VI, p. 688, compare Statutes, 1-12 Edward IV, p. 854. 168 Statutes, Henry VI, pp. 652-58. 1«® Statutes, 1 -12 Edward IV, p. 36. 1™ Ibid., p. 550. 185

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Other proceedings in 1460 in which Thomas Bathe was concerned will furnish an apposite illustration of another aspect of parliamentary procedure. A bill was presented on behalf of John Babe, who is described as a sick man, so decrepit that he could not ride or travel. In this bill a complicated story is told of certain lands in Louth to which the petitioner's father had a good title, but of which he had been defrauded by forged deeds, and which eventually came into the possession of Thomas Bathe, who had then held them for nine years and more. Though Bathe was not present in parliament, the petitioner, on his ex parte statement, was ordered to be restored forthwith to the possession of the lands and was awarded costs and damages.171 Grounds for this decision were stated to be the poverty and great infirmity of the petitioner and the might and lordship of his adversary, but a proviso was added which saved Bathe's right to an action at common law to determine the title to the lands. Whether this act profited John Babe at all must be doubtful, and Bathe does not seem to have had recourse to the courts to recover possession. He may not have known of the act for some years, for it was not until 1472 that he procured its repeal, describing it, not unjustifiably, as against law and conscience.172 In this case, political passion may have entered to deflect the course of justice, but neither lords nor commons were wellequipped, even if they had the leisure, to investigate the allegations in the mass of bills presented to them. In a good many cases the validity of an act was specifically conditional upon the truth of the bill, investigation being left to the courts, to the exchequer, or chancery, or even to town authorities.178 It is significant that it was expressly, and quite exceptionally, stated on one occasion that consideration had been had to the truth of the matter before the act was passed.174 We should not expect, during the Wars of the Roses, to find much scruple in the treatment of avowed political adversaries, but acts of attainder and forfeiture, or prescribing other penalties, were passed and repealed with equal facility175 and, to all seeming, as a rule with171

Statutes, Henry VI, pp. 684-88. Statutes, 1-12 Edward TV, p. 854. 173 Statutes, Henry VI, pp. 26a, 382, 572, 700, 776; Statutes, 1-12 Edward IV, pp. 220, 400; Statutes, 12-22 Edward IV, pp. 38, 576, 718-20, 816. 174 Statutes, 1-12 Edward IV, p. 454. 175 With Statutes, 1-12 Edward IV, pp. 720-22. compare Statutes, 12-22 Edward TV, pp. 90-92, 160-62; with Statutes, 1-12 Edward TV, pp. 874-76, compare Statutes, 12-22 Edward TV, pp. 142-44; with ibid., pp. 124-26, compare ibid., pp. 236-38, 244-48, 318-22; with ibid., pp. 260-64, compare ibid., pp. 354-56.

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out party bias; 176 and it was accepted without question that those against whom any such act was directed—even a spiritual peer—might be without knowledge of the act or the penalty. 177 There could then be little certainty that justice was done, and it is hardly a matter for wonder that the acts of the Irish parliament were often lightly regarded. One consequence of the bill procedure as it developed in the fifteenth century was that no formal distinction was made by the enrolling clerks between legislative, judicial, and administrative acts. All were intermixed on the parliament rolls and all appeared under the general preamble, prefixed to every roll from 1450 onwards, that ran: 'Statuta, ordinaciones et acta in quodam parliamento . . . edita in forma que sequitur.' 178 Nor was any method evolved for segregating and collecting statutes such as we should describe as public general acts. It will be understood that, when a private petitioner obtained an answer to his bill, it was his business to pursue the remedy offered him. He had the authority of parliament behind him, but he must bring the decision or direction to the notice of those capable of giving him relief or responsible for performing the administrative act involved. But if the petitioners were the commons and if the remedy was intended to right some public ill, how then was it to be applied? If, at one time, the chancery clerks had communicated to the courts such statutes as the judges were called upon to administer, 179 by the reign of Henry VI this had ceased to be done. 'Many and various notable statutes made in this land for the common profit,' we are told, 'have not been sent to the king's bench, the common pleas, or the exchequer, wherefore all these statutes are lost to memory and unknown.' 180 It is not, therefore, difficult to understand why, although the procedure of the Irish parliament approximated in the fifteenth century to the procedure of the English parliament, no authoritative collection of statutes 176 The batch of repeals in 1 4 6 5 points strongly away from political bias (Statutes, 1-12 Edward IV, pp. 402-10, 422-26). 177 Statutes, 12-22 Edward TV, pp. 352-54. 178 The first instance of this formula is in Statutes, Henry VI, p. 178. The formula in 1449 was different (ibid., p. 1 1 0 ) , and one still different was employed between 1 4 0 2 and 1447 ( E a r l y Statutes Ireland, p. 504; Statutes, Henry VI, p. 5 4 ) . The heading to the enrollments of the acts of great councils dropped the word Statuta (above, p. 188, n. 8 5 ) . 179 The entries in the Red Book of the Exchequer, Ireland, show that some Irish statutes were communicated to the exchequer ( E a r l y Statutes Ireland, pp. 270, 280, 5 1 6 ) . 180 Statutes, Henry VI, p. 3 1 2 .

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STATUTES

225

was maintained in Ireland. Nor should we perhaps be hasty in our condemnation. If we glance backward, we may better appreciate the conditions, the intellectual climate, which made it not only easy, but natural, to refrain from what may seem an obvious administrative precaution. To the modern mind, the pococurantism of the medieval English clerk seems well-nigh incredible, the careless disregard for the monuments of legislation that transformed the common law of England and created the intricate writ procedure of the later thirteenth century. Yet either, like the assizes of Henry II, they are completely lost or else, like the legislation of his successors, they have to be extracted from heterogeneous enrollments or recovered from private collections; and when, late in the thirteenth century, the English chancery commenced a statute roll, the earlier membranes were transcribed, not from authentic official exemplars, but from the compilation of some practitioner.181 The bar felt the need of a statute book long before chancery clerks realized that it was their duty to maintain one. The explanation doubtless is that legislation establishing or modifying methods of procedure was translated into model writs that found their place in formularies, while much other legislation was translated into orders to sheriffs and public proclamations and thereafter ceased to have interest for the chancery. Some important legislative acts might be specially preserved in the exchequer, but with little system or method.182 The same haphazard disorderliness is found in Ireland. Moreover, since the Irish writ system was the writ system of England, the Irish chancery clerks were under no necessity to compile formularies similar to the English registers of writs: they could obtain what they wanted ready-made.183 Similarly English statute books would supply nearly all the needs of lawyers practising in the Irish courts. It was not until 1455 that a direction was given for statutes of public utility to be extracted from the parliament rolls. By that time all the early rolls seem to have disappeared and it was not contemplated that the collection should go back beyond 8 Henry VI, apparently because no earlier rolls could be found.184 But nothing, it is to be feared, came of the project, and the early printed editions of the Irish statutes do not rest, as the printed English statute book does, upon medieval collections, but derive from Richardson and Sayles, The Early Statutes, pp. 3-6, 20-21. Ibid., pp. 6-8, 21-24. 1 8 8 There is an early instance of this in 1223 (Maitland, Collected Papers, ii. 8183; Early Statutes Ireland, p. 22). 184 Statutes, Henry VI, p. 312. 181

lf>2

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the parliament rolls themselves.185 Some Irish legislation was remembered in the fifteenth century and from time to time reaffirmed or, it may be, set aside: the Statute of Kilkenny, the Statute of Dublin, 186 the Statute of Assent and Disassent.187 Some left an indistinct but tenacious memory that was extinguished by the Tudors, such as the acts that excluded writs under English seals and that limited parliaments to Dublin and Drogheda. 188 But for the most part Irish legislation, if not still-born, had but a short life. 185 The text of the abridgment printed in 1572 seems evidently to have circulated previously in manuscript. Cotton MS., Titus B. IX, is an Elizabethan copy, interpolated with other matter. B.M., Additional MS. 4801, is a copy, made apparently under James I, in slightly different order and free from interpolated matter: a few abstracts have been revised by reference to the original roll. For the history of the early printed editions, see Quinn, 'Government Printing and the publication of the Irish Statutes in the sixteenth century,' PTOC. R. Irish Acad., xlix. C. 45-129. 186 Above, p. 146. 187 See Appendix IX. 188 Analecta Hibemica, x. 158; Statutes at Large, Ireland, i. 43-44, 205-7 ( 1 0 Henry VII, c. 3; 33 Henry VIII, Sess. 2, c. 1). The exclusion of writs under English seals was provided for by a statute of 1460 (Statutes, Henry VI, pp. 644-46), passed at the instance of the duke of York, upon which we have commented above, p. 204. The restriction of sessions of parliament to Dublin and Drogheda was imposed by a statute of 1478 (Statutes, 12-22 Edward IV, p. 658), but this had been quashed by the king (above, p. 182): it was, in fact, disregarded in 1483 (above, p. 180).

15 TAXATION IN THE F I F T E E N T H CENTURY

E HAVE seen how, in the first twenty years of the fifteenth century, the English exchequer was constantly unable to finance the lieutenant and with what difficulty arrears were made good.1 As the century wore on, the scale of expenditure deemed possible was, step by step, reduced. In 1421, during the lieutenancy of the fourth earl of Ormond, it was estimated that 2500 marks would be adequate to meet the annual charge.2 But it was found impracticable to keep within that limit. When, in 1423, negotiations were on foot with the earl of March to undertake the office, an attempt was made to get him to accept 4000 marks a year, to be reduced to 3000 marks if his deputy were a baron, and to 2000 marks if a bachelor,3 for in fixing the amount of the stipend regard was had to rank.4 In the end it was agreed that the earl should receive 5000 marks, but that this sum should include any available receipts from the Irish revenue.® Little, however, was to be expected from that source, and in 1433 it was recognized that the Irish revenue would scarcely bear the ordinary charges upon it and that the whole of the lieutenant's stipend, estimated at 4000 marks, must be found from England.6 It was possible to reduce this sum to 2000 marks in 1448, for though the duke of York received 4000 marks in his first year of office, there was a reduction to a half in subsequent years,7 and when his appointment was renewed in 1457 this arrangement was repeated.8

W

1

Above, pp. 152-53. Proc. Privy Council, ii. 3 1 3 . This was, in fact, the amount of Ormond's stipend, charged, in the first instance, on any surplus of Irish revenue, the balance to be met from the English exchequer (P.R.O., E. 1 0 1 / 2 4 7 / 7 ) . 3 Ibid., iii. 49. 4 The more dignified the lieutenant or deputy, the larger and more expensive his household would be. 6 Proc. Privy Council, iii. 68. The indenture of 1 3 April 1 4 2 5 with the earl of Ormond, who succeeded the earl of March, provided for a stipend of 3000 marks, to be met, if possible, in part from Irish revenues (Analecta Hibernica, i. 2 1 7 - 1 8 ) . 8 Rot. Pari., iv. 434, 436. Sir John Sutton, appointed lieutenant in 1428, had had 5000 marks in the first year and 4000 marks in the second (Cal. Rot. Pat. Hib., p. 249, no. 2 2 ) . 7 Proc. Privy Council, vi. 92-93. 8 Gilbert, Viceroys, pp. 585-86. 2

227

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Under Edward IV the same spirit of economy in regard to expenditure in Ireland obtained. The details of the arrangements with lieutenants and deputies varied and are not always easy to follow, but for nearly twenty years they provided for the maintenance of a force of archers, between three hundred and five hundred strong, as a direct charge upon the English exchequer.9 Thus, the agreement with Roland fitz Eustace, who was deputy for the duke of Clarence for a few months in 1462, stipulated for the provision by the English exchequer of the pay of a force of three hundred archers.10 The earl of Worcester, a later deputy of the duke's, was to receive a stipend of 2000 marks, but various charges additional to the wages of his soldiers were borne by the exchequer.11 On the other hand, lord Grey, as deputy for the king's infant son, George of Windsor, was to receive the round sum of £,2000 a year, out of which he was to maintain a force of three hundred archers.12 This agreement was made in 1478 and is the last of its kind. Under Robert Preston, lord Gormanston, who succeeded Grey for a few months in 1479, the armed forces at the deputy's disposal were reduced to forty archers and twenty men-at-arms with their captain, and the charge was mainly met from the Irish revenue.13 The terms of Gormanston's appointment anticipated the arrangement with his successor, Gerald, earl of Kildare, who received a stipend of £.600 out of the Irish revenue, so far as this was available, only the balance being met from England. 14 Actually all that Kildare seems to have received 9 A force of approximately this size had long been regarded by the English government as reasonably sufficient when no extraordinary effort was contemplated, as the following examples show. The numbers agreed with Sir John Stanley were 300 mounted archers and 100 archers on foot in 1389 (P.R.O., E. 101/247/1, no. 3) and 99 serjeants-at-arms and 300 archers in 1399 (E. 101/247/6). In 1406 it was agreed that Thomas of Lancaster should have 100 men-at-arms and 200 archers, together with such numbers of the English in Ireland as might be expedient (Foedera, viii. 431-32). In 1428 Sir John Sutton covenanted to provide 24 menat-arms and 500 archers in his first year and a hundred fewer archers in his second year (Cat. Rot. Pat. Hib., p. 249, no. 22). Sir Thomas Stanley's retinue in 1432 mustered 400 archers (Register of Primate Swayne, pp. 145-46). In 1442 the earl of Ormond agreed to provide 300 archers (Analecta Hibemica, i. 215-16). In 1468 the duke of Clarence is maintaining a force of 500 archers (ibid.., x. 43), and his agreement of 1474 provided that the numbers should vary between 300 and 500 according to the season (ibid., p. 46). These figures, of course, take no account of forces raised by royal service or by subsidies in Ireland. 10 Ibid., pp. 39, 41. 11 Ibid., pp. 29-30, 43. 12 Ibid., pp. 38-39. 13 Ibid., p. 31. 1 4 Gilbert, Viceroys, pp. 600-601.

TAXATION IN T H E F I F T E E N T H CENTURY

229

16

was an occasional grant of £,100 from the king. The force Kildare was to maintain, although double that of Gormanston's, was no more than eighty yeomen and forty horse.18 The earl remained in office continuously until 1492, and there was no heavy call upon the English exchequer for expenditure in Ireland until Henry VII began its reconquest with the dispatch of Sir Edward Poynings in 1494. Throughout the period we have been treating, the English exchequer was as dilatory in its payments as it had been earlier. The earl of Ormond in 1421 anticipated that this would be the case and set aside the rents of certain of his properties to satisfy the debts that he would unavoidably contract on the king's behalf. 11 In 1428 the Irish parliament pressed for payment to the lieutenant, Sir John Sutton, and to the earl of Ormond, who had been justiciar and lieutenant in 1425-27.18 When Thomas Stanley, Sutton's successor, was appointed in 1431, the treasurer had to defer the initial payment to him because of more urgent calls for money,19 and he did not sail for many months.20 At the beginning of 1434 he was owed 5000 marks, and the treasurer reported to the king's council that he dared not take it upon himself to make either payment or assignment for this sum.21 The next year Stanley proceeded to England, bearing with him a letter from the Irish council, asking that he should be paid in order that he might be able to return speedily to Ireland.22 Unless he drew upon his own resources, it is difficult to understand how he kept his force of four hundred archers together, as he undoubtedly did.23 It is the same story with later lieutenants and deputies. In 1442, messengers from the Irish parliament pressed for payment to the earl of Ormond, or an assignment, to enable him to maintain the number of soldiers stipulated in his indenture. They were put off with the reply that an arrangement had already been 15

Analecta Hibemica, x. 32, 50. This was the arrangement in 1481 (Gilbert, loc. cit.), but presumably it continued what had been agreed previously. 17 Early Statutes Ireland, p. 572. 18 Betham, Early Parliaments of Ireland, pp. 353-55. 19 Proc. Privy Council, iv. 79-80. This was on 18 March. 20 His appointment was to take effect from 1 2 April (Cal. Patent Rolls, 14291436, p. 105), but he did not arrive until September, and Richard Talbot was still acting as justiciar on the thirtieth of that month (Cal. Rot. Pat. Hib., p. 253, nos. 12-14, 16). 21 Proc. Privy Council, iv. 197-98. 22 Betham, op. cit., p. 360. 23 Register of Primate Swayne, pp. 145-46. 16

230

THE I R I S H P A R L I A M E N T IN THE M I D D L E

AGES

24

made. Actually the indenture with the earl provided that, of his stipend of 3000 marks, only the payment of the first half-year should definitely be met by the English exchequer. Future half-yearly payments were to be met, if possible, from Irish revenues and any deficit would be met from England.26 It was made plain to Ormond, however, that the ordinary expenditure of the Irish government must be met before any balance became available for the lieutenant's stipend.26 This meant that he would receive nothing from the Irish treasury, and a cumbrous system of certification resulted in the earl's receiving an assignment many months after expenditure had been incurred.27 The tallies the earl received were not readily cashed and his resources were obviously strained,28 so much so that, when he married his daughter to the earl of Shrewsbury's son, a substantial part, at least, of her portion was provided in tallies, which were subsequently cashed, as a favor, for his son-in-law.29 The insolvency of the Irish exchequer, and the inability of the English exchequer to make good the deficiency, led in 1443 to proposals for an act of resumption,30 but no statute of the kind was passed in Ireland until 1450.31 Meanwhile, it was realized that the Irish revenues could not be expected to pay the lieutenant's stipend and, when, in 1445, the earl of Shrewsbury was appointed for a term of seven years from 20 April, the whole cost was charged on the English exchequer.32 The English exchequer, 24

Proc. Privy Council, v. 184. The parliament was that of November 1441, held by Ormond as deputy for lord Welles. Ormond was appointed lieutenant for seven years from Easter 1442. His indenture is dated 26 February (see following note). The draft, giving the reply to the messengers, is dated 24 March. 25 Analecta Hibemica, i. 215-16: the lacunae can be supplied from P.R.O., E. 404/60, no. 107. 28 Proc. Privy Council, v. 206. 2 7 For example, the Irish council certified under the Irish great seal to the keeper of the privy seal that nothing could be paid to the earl at Michaelmas 1443: this certificate was received in the office of the privy seal on 22 October, and on 18 January 1444 a warrant was sent to the English exchequer to make an assignment for £.1000 (P.R.O., E. 404/60, no. 70). The same process was repeated the following term: in respect of the deficiency at Easter, a warrant was issued in May (ibid.., no. 107). 2 8 Cf. Graves, RoU, of King's Council, p. 309. 2 9 P.R.O., E. 404/61, no. 227: warrant of 8 June 1445. The amount of the tallies was £.300. For the marriage, see above, p. 202. 30 Proc. Privy Council, v. 297. 81 Statutes, Henry VI, p. 180. 3 2 P.R.O., E. 404/61, no. 138: indenture of 14 February 1445. The stipend was fixed at 4000 marks in the first year and £2000 in succeeding years. In addition, the lieutenant was to receive all issues and profits of Ireland, but this could mean little. The exchequer was instructed the same day (ibid., no. 139). On 3 March a

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231

however, could pay only in tallies, and without ready money the earl could not cross to Ireland. To enable him to do so, the exchequer was instructed on 16 August 1446 to cash tallies to the amount of 2000 marks,33 but it was not until the following November that he was able to take up the government.34 The story of Talbot's successor is a variant of his. The duke of York was appointed lieutenant in 1447.35 Evidently he had difficulty in raising money, and he did not arrive in Ireland until July 1449.36 In September of that year he sought and received the king's licence to sell or mortgage part of his inheritance held in chief of the Crown to enable him to meet the charges of his office.87 The following December he received an assignment of £,1200 in respect of payments overdue.38 By May 1450 the amount outstanding to the duke had increased to 4700 marks.39 Under Edward IV it continued to be usual to pay by means of assignments.40 As before, these assignments could not always be met, and thus in 1470, for example, the earl of Worcester returned the tallies he held and agreed that the arrears of £-4535 due to him should be treated as a loan by him to the king.41 It is unnecessary to emphasize the bearing of this perpetual financial struggle on the measures of economy adopted in the last years of Edward's reign. The effect upon Ireland can be put in words written in 1428 by John Swayne, archbishop of Armagh: All the lieutenants that have been in this country, when they come thither, their soldiers live on the husbandmen, not paying for horse-meat nor manmeat, and the lieutenants' purveyors take up all manner of victuals, that is to say, corn, hay, beasts and poultry and all other things needful to their warrant was issued, authorizing payment of 1750 marks: this states that the stipend for the first year was to be 3500 marks, and apparently the terms had been revised (P.R.O., E. 28/75)33 E. 404/61, no. 2 3 1 . The exchequer had been instructed to provide shipping on 24 July (ibid., no. 2 2 6 ) . 34 Wood in Proc. R. Irish Acad., xxxvi. C. 235. 35 The indenture was dated 30 July: he was to receive 4000 marks for the first year and 2000 marks annually for the remainder of a term of ten years (P.R.O., E. 28/79: warrant of 4 December 1449). His patent was not issued until 9 December 1447 (Cal. Patent Rolls, 1446-1452, p. 1 8 5 ) . 36 Wood in Proc. R. Irish Acad., xxxvi. C. 236. 37 E. 28/79: warrant of 8 September 1449. 38 Ibid.: warrants of 3 and 4 December. 39 Proc. Privy Council, vi. 92-93. The date of the indenture is here given as 29 September 1447: presumably there was a revised agreement. 40 Analecta Hibemica, x. 28, 38. 41 Ibid., p. 45.

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household, and pay nothing therefor to account but tallies, so far forth that, as it is told me, there is owing in this land by lieutenants and their soldiers within these few years £20,000. And, more also, at parliaments and great councils the lieutenants have great subsidies and tallages granted to tnem. And all this the poor husbandry beareth and payeth for, and the war on the other side destroyeth them. 4 2 T h e evils of which the archbishop complained were known familiarly in Ireland as coign and livery, and they were linked both with the failure of payments from England and with Irish taxation. Coign was the custom whereby soldiers exacted payments, in kind or money, from the countryside where they were quartered: in 1 4 2 2 it was stated that coign was levied at a weekly rate round about twenty pence for every man, 4 3 a sum approaching the soldier's standard rate of pay of fourpence a day. Coign had been repeatedly forbidden by statute, but proved impossible to eradicate. Livery, or purveyance as it was known in England, was the requisitioning of supplies which, in principle, were paid for, but the payment took the form of tallies or bills. 44 If the lieutenant cashed these only to the extent to which he himself received payment from the king, it might be a long time before the debt was honored: hence the reiterated requests from Ireland that the king should pay arrears. 45 Ormond was praised b y the Irish parliament in 1 4 2 1 for two things: for setting aside his own rents to pay his official debts and for renouncing the 'evil, most hateful and unbearable custom called coign.' 46 In fact, a subsidy had been granted him on the express condition that he would renounce coign and livery, 4 7 and 42

Register of Primate Swayne, p. 108. Proc. Privy Council, iii. 46. 4 4 Tallies are mentioned by Archbishop Swayne (see above). For payment 'par bille assignez,' see Proc. Privy Council, ii. 46. According to Richard Wogan, in 1442 one of the principal requirements in a chief governor was 'to holde his pointementes of his bills and to make dewe paiement unto youre trewe liege peple' (P.R.O., E. 101/248/16, m. 2). 4 5 In 1428, the year in which Archbishop Swayne wrote the letter cited above, the Irish parliament made strong representations regarding arrears of payments to and debts due by former lieutenants and deputies under Henry V as well as the present king (Betham, Early Parliaments of Ireland, pp. 353-57). For later representations, see Proc. Privy Council, v. 184, 297, 325; P.R.O., E. 101/248/16, m. 2; Graves, floß of King's Council, p. 310. See also above, pp. 150, 153. 46 Early Statutes Ireland, p. 572. 4T Parliaments and Councils of Mediaeval Ireland, i. 140, 144-45, 148. The earl obtained letters from the county of Kilkenny, dated 22 March 1421, and from the city of Waterford, dated 25 March 1421, formally certifying that he had paid for all supplies (P.R.O., E. 101/247/17, nos. 2, 3). Presumably he obtained similar letters from other counties and towns. 43

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233

we must suppose that every grant of a subsidy carried with it the implication that the people would be spared arbitrary exactions. Quite certainly, if the troops were not adequately provisioned, they would live upon the country and, if they were not paid, the ancient custom of coign would revive. Before we discuss the two main elements in Irish taxation in the fifteenth century—general subsidies, granted to the lieutenant or his deputy, and local subsidies, usually confined to one county, for local purposes—it will be well to say a little of the old feudal tax of scutage or royal service.' This tax was still occasionally imposed, but it seems to have been regarded as an alternative to a general subsidy.48 In strict law parliamentary authority was not required for the proclamation of royal service.49 The justification for levying the tax rested on the principle that those who did not answer the summons—a purely formal summons—to appear at the appointed place and time to perform their service in the feudal host must make payment instead at the recognized rate of composition.50 However, the object of a proclamation of royal service and of a parliamentary grant was the same, namely, to enable professional soldiers to be engaged under the lieutenant, deputy or justiciar, and scutage, despite its historical justification, was manifestly inequitable in that it was a burden on landed 48 In 1450 the duke of York, then lieutenant, decided to proclaim royal service as an alternative to imposing a subsidy. In order that this should be done it was necessary to suspend a statute of 23 Henry VI (1445), which provided that royal service should not be proclaimed for ten years (Statutes, Henry VI, pp. 186-88). For later references to royal service, which indicate that the tax was still occasionally levied, see Statutes, 1-12 Edward IV, pp. 130, 136-38, Statutes, 12-22 Edward IV, p. 96. When royal service was proclaimed by the earl of Kildare, as deputy lieutenant, in 12 Edward IV, it was limited to the four counties of the Pale: Dublin, Meath, Louth, and Kildare (ibid., p. 766). This seems to have been the last occasion of the levy of the tax under Edward IV and perhaps in the fifteenth century. 40 Though there were precedents for seeking the assent of the magnates (Cal. Justiciary Rolls, 1295-1303, p. 362; Parliaments and Councils of Mediaeval Ireland, i. g-10), in 1342 a suggestion to the king's council that such assent was necessary met with the reply that the decision to summon those owing service was a matter for the justiciar (Cal. Close Rolls, 1341-1343, p. 515). This principle seems thereafter to have been respected. 50 For the formal writ directing the sheriff to summon those owing service and the operative writ to levy the tax (which, by this time, had become a fixed charge on land), see Cal. Rot. Pat. Mb., pp. 105-6, nos. 90-91, 112, and Analecta Hibernica, ii. 289-90. These examples come from 1378 and 1384, but the form does not seem to have been subsequently varied. It should be noticed that royal service was still proclaimed under Richard II in twelve counties—Dublin, Louth, Kildare, Carlow, Waterford, Wexford, Cork, Limerick, Meath, Kilkenny, Tipperary, Kerry— though not in Connacht or Ulster.

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property alone. In the fifteenth century it was an anachronism. Having said so much, we can pass on to a discussion of the two types of subsidy. The documents of the years 1420 and 1421 are singularly full and illuminating,51 and without them we should be at a loss to describe in any detail the system of granting and assessing general subsidies. During the parliament that met for the first time on 8 June 1420 two subsidies were granted to the earl of Ormond, then lieutenant: at the first session a subsidy of 700 marks was granted, and this was followed at the second session, which began on 2 December, by a further subsidy of 300 marks. In the following year Ormond summoned a great council for 10 October, and on that occasion a subsidy of 400 marks was granted to him. For all three subsidies we possess the indentures binding the commons and clergy of the several counties and dioceses to pay the appropriate assessment: the three series of indentures are not quite complete, but they are sufficiently so to give us a full picture of the whole transaction.52 Each subsidy was first divided between the counties (with which the dioceses were coterminous), and each several portion was, in turn, divided between the commons and the clergy. Further subdivisions were required where the crosslands were separately assessed, and also in the case of cities and boroughs.53 In Dublin the clergy were themselves divided between the 'chapter' (that is, of St. Patrick's and Holy Trinity) and the rest.54 In accordance with ancient custom, we are told, any subsidies and tallages granted in parliaments and great councils for the whole of Ireland were borne, as to a half, by the clergy and commons of the cross and the commons of the county or franchise of Meath and by the chapter, clergy, and commons of the cross and the commons of the county and city of Dublin: of this half, two-thirds were borne by Meath and one-third by Dublin. 55 Here we have the first division of any given sum. But the gross contributions of Meath and Dublin were, in turn, broken up between the several communities upon what seems to be a customary basis of division. In Dublin the clergy bore one-third and the laity two-thirds; the clerical share was again divided in equal parts between the chapter and the other clergy; the share of the laity was divided between the commons of the county, who 51

Parliaments

52

Ibid., pp. xxv-xxvi, xxxviii-xl. Ibid., pp. xxxi-xxxvii.

53 54

55

Ibid.,

and Councils

pp. 133, 161, 181.

Ibid., pp. 173-74. 179-81.

of Mediaeval

Ireland,

i.

131-82.

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bore six-sevenths, and the citizens of Dublin, who bore one-seventh.56 The figures for Meath are difficult to interpret, but when we turn to other counties we find intricate partitions similar to that in Dublin. Thus in Louth the contributions of the commons, the clergy, and the town of Drogheda are in the ratio of 6:2:1. The complexities of the arithmetic involved led to some ragged results, and it seems that small adjustments were made from time to time to compensate for overassessments or perhaps earlier overpayments or underpayments. In the process there was doubtless some haggling, and the commons of the crosslands, where assessment was small, might on one occasion be taxed with the commons of the county, and on another with the clergy.57 The next step was to prepare the indentures. These indentures state that the parties have grant«! a certain sum to the lieutenant or deputy —in 1420 and 1421, to the earl of Ormond—subject to certain conditions or reservations,58 and, as a rule, the assessors and collectors are named.59 Indentures might be given on behalf of the county, as a whole, for the entire contribution, or separate indentures might be given by the commons of the county and also by the contributing communities for their respective shares. When an indenture covered more than one contributory, it appears to have been usual for subsidiary indentures to be given by the smaller contributory: but no principle seems to underly the different contrivances, the only object being to see that every contributing community was effectively bound.80 We have described the procedure in detail for two reasons. Firstly, because it helps to give an answer to the question that must be present in our minds when we speculate how the commons and proctors were occupied during their stay at parliament while the lords and councillors were engaged upon other business in which they had little or no part. Secondly, because what must seem to be the extraordinary elaboration of the procedure emphasizes the unusual nature of the taxation, for parliamentary subsidies are granted not to the king or to 56

Ibid., pp. xxxiv-xxxv. Ibid., pp. xxxv-xxxix, where the figures and their implications are analyzed. 58 For example, that coign and livery should cease (ibid., pp. 140, 144-45, 148), that any customary usage limiting the proportionate contribution of a particular community should be reserved (ibid., pp. 134, 173-74, 179-81), that lands in the king's hands should be liable and that tenants at will should be exempt (ibid., pp. 134. 138), that there should be no interference by lay collectors with the tenants of the clergy ((bid., p. 1 3 7 ) , that those not assessed on lands should relieve their lords by paying iad. in the £ on chattels (ibid., p. 138). 59 Ibid., pp. 131-82. 80 Ibid., pp. xxxvii-xxxviii. 57

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the lieutenant as the king's representative but, in 1420-21, to the earl of Ormond himself in his personal capacity. Hence many of the indentures are careful to specify that the collectors will account for the money collected to an auditor appointed by the earl, and not at the royal exchequer.61 And while the details of the arrangements may have varied, we have every reason to suppose that, in its main features, the procedure in 1420-21 had been anticipated in the later fourteenth century62 and continued to be observed until the end of the Middle Ages. It is certain that the earl of Ormond did not receive the total amounts granted to him by the parliament and great council. The exact size of the deficiency is uncertain, but it seems to have been at least a tenth,63 for, apart from minor deductions in the course of collection, it would not appear possible that anything was contributed by those communities which were summoned to send representatives but had failed to do so. The defaulting counties would seem to have been Ulster and Kerry and perhaps Connacht, with the towns of Athenry and Galway: 64 certainly writs were addressed to all, or nearly all, of these later in the century and probably therefore in 1420 and 1421, but there is no sign of the appearance of representatives.66 The procedure we have described was not adapted for absentees: there was no way of compelling the defaulters to make out indentures and, in any case, there was no effective way in which the lieutenant could exact contributions from distant counties and boroughs.66 Inevitably in such circumstances there must have been a deficit upon the total amount of a general subsidy, for the communities represented in parliament or 61

Ibid., pp. 131, 132, 135, et passim. Above, pp. 154-56. Ibid., pp. xxxiv-xxxv. 6 4 From none of these are there any indentures. Towns distant from Dublin were probably already ceasing to account at the exchequer. In 1443 the Irish council reported that Cork, Limerick, and Galway no longer paid their fee-farms, 'cockets' (fees due under the cocket seal for staple goods), or the customs duties collected at these ports (Proc. Privy Council, v. 326: cf. p. 166, n. 27, above). 6 5 Above, pp. 143, 179. 6 6 In 1443 uie only remedy that occurred to the Irish council for compelling the ports of Cork, Limerick, and Galway to account at the Dublin exchequer was to arrange with the king's council in England that ships from these ports arriving in Bristol should be arrested and the merchants required to provide security that the townsmen would account for monies due (Proc. Privy Council, v. 326). The king's council preferred to try the effect of a writ under the great seal (ibid., p. 297). Ormond, as lieutenant, appears soon after to have abandoned all past debts from Cork and Limerick on payment of token amounts (ibid., pp. 327-28). 02 63

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great council would be unwilling to make good the missing contributions. Plainly Meath and Dublin, the largest contributories, were insistent that their traditional moiety should not be increased, and they seem further to have taken exception to the fact that the moiety was assessed upon the nominal total, and not upon the realizable total, of the subsidies.67 The modesty of the amount of the three subsidies will have been noticed: a gross total of 1400 marks spread over two years. This average of 700 marks a year appears to have been maintained. It may occasionally have been exceeded, as in 1428 when 750 marks were granted to Sir John Sutton,68 but it is noteworthy that in 1477 the sum of 700 marks was regarded as the customary amount of a general subsidy.69 One of the reasons for the regular summoning of parliaments and great councils in Ireland was certainly the necessity lieutenants and deputies were under of obtaining this subsidy, and it would seem that there was some fear lest, being hardly pressed, they would endeavor to multiply the occasions for demanding subsidies.70 The limitation of parliaments and great councils to one a year would prevent embarrassing demands.71 Though Edward IV put the matter rather differently in 1479, there can be no mistaking the meaning of his instruction to the earl of Kildare that 'in no parliament to be holden hereafter there shall no subsidy be asked nor granted in the same upon the commons nor levied but one in a year . . . as hath been accustomed.'72 On this occasion the king limited the amount of a single subsidy to the traditional total of 700 marks.73 But, so far as 67

Parliaments and Councils of Mediaeval Ireland, i. p. xxxiv. Liber Primus Kilkenniensis, p. 57, where 'subsidii et ccL marcarum' should read 'subsidii dccL marcarum.' That the latter is the true reading is confirmed by an entry in the Register of Primate Swayne, p. 85, where the contribution of the clergy of Armagh is stated to be 14 marks 12s. lod. + 15s. 3d., which, it is evident, is quite out of proportion to a subsidy of 250 marks. In 1420-21 their contribution to a subsidy of 700 marks had been 1 3 marks 8s. n d . , with roughly proportionate contributions to subsidies of 300 and 400 marks (Parliaments and Councils of Mediaeval Ireland, i. p. xxxii). 69 Statutes, 12-22 Edioard IV, p. 462. 70 Compare the remarks of Archbishop Swayne in 1428 regarding the great subsidies and tallages granted to lieutenants in parliaments and great councils (above, pp. 2 3 1 - 3 2 ) . 71 The customary rule limiting the number of parliaments or great councils was affirmed in 1450, when it was suspended in special circumstances. The rule was reaffirmed in 1 4 5 5 (Statutes, Henry VI, pp. 258, 3 5 4 ) . 72 Gilbert, Viceroys, p. 599. 73 Gilbert read '1200 marks,' but this and other misreadings are corrected in Deputy Keeper's Report, Ireland, lvii. 569. 68

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our scanty information permits us to draw any conclusion, it looks as if, for some time, no attempt had been made to levy a general subsidy and that the four counties of Dublin, Kildare, Louth, and Meath alone had regularly contributed, though there may have been occasional small contributions from Wexford and Waterford.74 Presumably in consequence of the restricted area of contribution, the rate of tax had tended to rise. In 1476 the rate on the ploughland had been fixed at 13s. 4d. in Dublin and 16s. 8d. in Louth, while Meath and Kildare were to pay double the rate customarily charged when a 'common' (i.e., general) subsidy of 700 marks was levied.75 No figures have survived to indicate the actual amounts received by the deputy at this period. Exemptions and deductions would diminish the receipts. Lands gone to waste were not assessed,76 and in Kildare assessment by the ploughland gave way to a customary assessment that must certainly have favored the taxpayer.77 It is evident that the high rate of 1476 provoked some resistance, and in 1478 and 1479 the rate fell to a level ten shillings a ploughland.78 The rate had risen again to 13s. 4d. by 1485,79 and under Poynings' administration it rose again sharply to 26s. 8d., and this not as an exceptional rate for a single year but for five, though 13s. 4d. was as much as could be permanently maintained.80 The relative lightness of general taxation was offset by the frequency of local subsidies. Of these we learn a good deal as efforts were made during the fifteenth century to bring them under parliamentary control. It has already been shown that in the earlier years of the century an elaborate procedure was devised for imposing a local subsidy and that, while in the background there seems to lie the county court, the machinery for levying the tax was provided by specially elected bodies.81 What is not altogether clear is the validity of any tax so imposed. What sanction could be applied to enforce payment from a 7 4 Up to 1435, according to the Irish council, in the 'outer most parts and comities . . . the liege people have paid their subsidies and other grants duly' (Betham, Early Parliaments of Ireland, p. 362). Early in Henry VII's reign it was only from Wexford and Waterford that contributions were obtained (Quinn in Proc. R. Irish Acad., xlii. C. 229). 75 Statutes, 12-22 Edward TV, p. 462. 76 Statutes, Henry VI, p. 448; ibid., 12-22 Edward IV, p. 464. 77 Ibid., 12-22 EdwaralV, pp. 462, 684, 730. 78 Ibid., 12-22 Edward TV, pp. 672, 682, 730. 7 9 Bryan, Great Earl of Kildare, pp. 282-83. 8 0 Quinn in Proc. R. Irish Acad., xlii. C. 225-26. 8 1 Above, p. 158.

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reluctant or recalcitrant contributor? When a grant limited to a county or group of counties was made in a parliament or an afforced council, we recognize the nature of the authority behind it, even though that authority might be somewhat attenuated and might need reinforcement by indentures, in the manner we have seen, since the grant was made not to the king but personally to the king's representative. Indeed, it is a little difficult to draw more than a formal distinction between a general subsidy which could not be enforced in certain parts of the country, and a subsidy that was expressly limited to certain counties. But what was the position when there was no parliamentary authority behind a local grant? Now in 1449 we hear of subsidies, taxes, and tallages, ordained and granted by sheriffs, guardians of the peace and of the marches, sovereigns, portreeves, and other officers of the king and other lords of Ireland, with the assent of the communities of counties, boroughs, and other places,82 and it is evident that local taxation was widespread, not only in counties and chartered towns, but also in areas that had no recognized legal identity, although they may have been, for some purposes, administrative units. In such cases there must have been much informality which, however justified by practical considerations, would hardly stand the scrutiny of a court of law: but we know no details, and we are equally ignorant of the happenings in little Irish towns. It is, then, only of the counties that we can speak. The body that obviously represented the community of a county was the comity court: indeed, it is reasonable to say that the acts of the county court are the acts of the county. When, therefore, we learn that the commons of the franchise of Meath appeared before the lieutenant at Rathgirdle on 10 July 1421 in response to a royal writ, we are justified in seeing in this assembly a special meeting of the county court. There was no other method known to the law of calling the commons together. At this particular meeting the commons of Meath granted to the lieutenant, as an aid and for the support of the king's wars, ten shillings from every ploughland within the franchise, and they appointed collectors to whom letters patent were subsequently sent by the Irish chancery, empowering them to levy distress on any who refused to contribute to the subsidy.83 Certain points call for remark. The commons of Meath had been the largest single contributory to the two subsidies of 700 marks and 300 marks that had 82 83

Statutes, Henry VI, p. n 8 . Parliaments and Councils of Mediaeval Ireland, i. 183-84.

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been granted at the Dublin parliament in June and December 1420, and they were to make the largest contribution to the subsidy of 400 marks granted at the great council at Dublin in October 1421. 84 Taxpayers in Meath, therefore, had four demands for taxes within sixteen months and, although two of the demands had the authority of parliament, one of the county court and one of a great council, all the taxes were for essentially the same purpose and all were paid to the lieutenant personally. There is no suggestion that the local subsidy had any authority other than that of the county court, and the lieutenant assumes that he is justified in invoking the king's authority to collect what has been promised to himself. Not all local subsidies, however, were paid to the lieutenant or his deputy—as when, in 1427, 'all the whole county [of Wexford] ransomed themselves and paid 280 marks to McMurgh that he should not destroy them all'85—and there are good reasons for believing that the formal approval of a meeting of the county court was not always obtained. No doubt in Irish county courts, as in English county courts, there were prominent, managing men on whose nod (in Bracton's phrase) the views of the others depended,86 and who might feel themselves justified in assuming the concurrence of the freeholders of the county without troubling to ask for it. But even if the assent of the county court was formally given, how were dissentients to be bound? Since subsidies were normally assessed upon ploughlands, as many references make plain, and many landowners sought either complete exemption or a reduction in the assessment of their lands,87 we may be sure that, whenever it was proposed to levy a local subsidy, there would be dissentients. It was necessary, therefore, for the promoters, whoever they might be, to obtain a writ from the chancery enforcing collection. Such writs became known as writs of 'assenting and dissenting,' and in 1430 it was enacted that no such writs should be issued and no subsidy collected unless it had been granted in parliament or great council. This act, however, depended for its enforcement upon the enterprise of a dissentient. Any person aggrieved by a local 84

Ibid., p. xxxiv. Register of John Suiayne, p. 1 1 0 . 86 Bracton, fo. 1 1 5 6 : 'ad quorum nutum dependent vota aliorum.' 87 Statutes, 1-12 Edward TV, pp. 194-96, 202, 576-78, 708-10, 746, 754, 758, 794-96, Statutes, 12-22 Edward IV, pp. 54, 74, 1 5 2 , 220, 250, 274-76, 282, 344, 420, 426, 452-56, 472-74, 480, 492, 5 1 4 - 1 6 , 6 1 4 , 720, 746-48, 810. As a number of these references show, it became the rule to exempt demesne lands in the occupation of the owner, but resort to parliament was frequently necessary to ensure that this rule was observed. 8r>

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241

subsidy collected without parliamentary authority had a right of action against those who had authorized it and was entitled to treble damages, but there can be no room for doubt that the act was ill observed.88 Not only are there a number of subsequent acts granting exemption to particular localities from all forms of taxation except subsidies granted in parliaments and great councils89—exemptions which carry an obvious inference—but we are afforded apposite illustrations of extra-parliamentary taxation in a few cases where enforcement proved impracticable. In the parliament of July 1454 the gentry of Meath, Kildare, and Louth were discharged from subsidies assessed upon the county with their assent but without further authority.90 From other sources than the parliament roll we can reconstruct the course of events. On 12 May 1453 Richard, duke of York, was superseded as lieutenant by the earl of Ormond,91 and consequently the duke's deputy, Edward fitz Eustace, was also superseded, some weeks later,92 by the earl's deputy, John Mey, archbishop of Armagh.93 The Butlers under the leadership of the earl's cousin, William Butler, thought it a favorable opportunity to settle by force a dispute between Ormond and the earl of Kildare over the manor of Maynooth and Rathmore.94 They ravaged the Geraldine lands, lifted the cattle, took the husbandmen as hostages, and demanded a ransom. Appeals for assistance to the lieutenant and his deputy having fallen upon deaf ears, there was no immediate alternative but to submit to the demand. Instigated, however, by Edward fitz Eustace, the lords and gentry of Kildare, with the assistance of the citizens of Dublin, drove the Butlers out.95 They also 88

For the whole subject, see Appendix IX. Statutes, Henry VI, pp. 92, 210, 236; Statutes, 1-12 Edward IV, p. 496. 90 Statutes, Henry VI, p. 296. 91 Cal. Patent Rolls, 1452-1461, p. 102. 92 He was holding a great council on 25 May (Statutes, Henry VI, pp. 432, 788). 93 Although appointed on 25 June (Cal. Patent Rolls, 1452-1461, pp. 82-83), he would not be likely to assume office until some date in July. 94 These manors had passed in 1432 to the fourth earl of Ormond in right of his wife Elizabeth, daughter of the fifth earl of Kildare, but subsequently are found in possession of the seventh earl of Kildare (Cal. Ormond Deeds, iii. 86-89, 192, 219; Statutes, 12-22 Edward TV, p. 274). 95 The letter of 22 January 1454, addressed to the duke of York, which gives these details is supported generally by the parliament roll, which survives in abstract (Ellis, Original Letters, Second Series, i. 117-22; Statutes, Henry VI, p. 293). The letter is written from a Geraldine standpoint and mentions an assessment made by William Butler in Kildare, saying nothing of the assent of the gentry or of an assessment in Meath and Louth. In this letter Thomas fitz Maurice is not given the title of earl of Kildare and it may be that his title was not recognized 89

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appealed to the duke of York, with the result that Ormond was in turn superseded by him, and Edward fitz Eustace, once more the duke's deputy, held the parliament at which the subsidies assessed for the ransom were annulled.96 We have another detailed story in 1463 which shows how a local subsidy might more legitimately originate. In July of the previous year, at the instance of the earl of Kildare and other gentlemen of Meath, lord Gormanston and eight other knights and esquires entered into a bond to raise the sum of a hundred marks required for the protection of the county. The earl and those who acted with him promised that this sum would be speedily paid by all the gentry of Meath, but nothing had been done. An act was therefore passed for levying the amount on the gentry and freeholders of the county.97 It was, in fact, impossible to prevent the levying of extra-parliamentary subsidies of this kind, and attempts were made to regulate them by requiring the authority of the council or of commissioners composed of the leading local gentry.98 But it was also necessary from time to time to recognize as lawful subsidies granted without any parliamentary authority, direct or indirect. There are a number of examples,99 but we may select an instructive one from 1485. It was presumably at the instance of the deputy, the earl of Kildare, that a local subsidy of forty-pence on the ploughland was imposed by the parliament of this year upon Meath in order to provide the wages (or black rent) due to Cahir O'Connor, which were in arrear for a year: this subsidy was collected with the general subsidy authorized by this parliament. For all its apparent regularity, the procedure adopted was exceptional, for, as an earlier act of the same parliament shows, the sheriff usually levied the amount required in accordance with ancient custom: a former sheriff, Alexander Plunket, seems to have paid O'Connor his wages but to have found it impossible to collect the full amount, and this act authorizes him to distrain for the arrears still until later in the year, but he was certainly entitled earl on 22 November 1454 (Statutes, Henry VI, pp. 324-26), and it is difficult to account for his dispute with Onnond in 1453 unless he had then succeeded his father. 9 6 Since the parliament met on 5 July 1454, it is presumable that fitz Eustace was in office during May (Statutes, Henry VI, pp. 348, 368, 408-14). The date of the duke of York's restoration is uncertain. 97 Statutes, 1-12 Edward IV, pp. 176-78. 98 Ibid., 1-12 Edward IV, pp. 468, 766-68; ibid., 12-22 Edward IV, pp. 138-40, 760-64. 99 Statutes, Henry VI, pp. 674-76; ibid., 12-22 Edward IV, pp. 462, 550.

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outstanding.100 Legislation to deal in any way with local taxation was practically discontinued after the medieval period, though a few instances are known. The cumbrous procedure requisite to give effect to Poynings' Law, 101 and the relative infrequency of parliaments, introduced conditions that necessitated a break with earlier practice and, in place of parliament, the council assumed power to authorize or impose local subsidies.102 i«o Bryan, Great Earl of Kildare, pp. 82-83. Below, pp. 274-79. 102 Quinn in Proc. R. Irish Acad., xlii. C. 2 2 0 - 2 1 .

101

16 I R E L A N D AND T H E ENGLISH CROWN

E H A V E depicted the medieval parliament of Ireland in the last phase of its history and it remains to explain the transition, by way of Poynings' L a w , to the modern history of the Irish parliament. F o r a full understanding of the issues involved it is necessary to look back and to consider the relation of the Irish administration to the English Crown. Of the power of the Crown to legislate for Ireland there was no question or, at least, no question that was seriously put and maintained by legal argument. Not only were English statutes, as part of the common law, binding in principle upon Ireland, but the king legislated from time to time specifically for Ireland. 1 It is true that much English statutory law of the fourteenth and fifteenth centuries was irrelevant, and the Irish government and parliament were moved at times to select what should be enforced; this action, however, was not to question the validity of English legislation but to make its application more effective. 2 We know of only two instances where the power of the Crown to legislate for Ireland was challenged.

W

In the Westminster parliament of 1380 the ordinance was promulgated which was known in Ireland as the Statute of Absentees. 3 In a subsequent English parliament, apparently that of November 1 3 8 1 , the prelates and clergy of Ireland presented a petition against the ordinance. They protested not only against the provisions of the ordinance but against the manner of its promulgation, saying that they had neither been summoned to the parliament nor had they assented to the ordinance and claiming, therefore, that the legislation was against the liberties of the Church. 4 They did not develop the argument on this point nor did they notice that absentee laymen were as much subject to the penal clauses of the ordinance as absentee churchmen. And while the mere fact is noteworthy that the principle was raised that legislation affecting Ireland should not be passed without consulting the parties affected, its assertion on this occasion is of little significance: there is no echo in after years. The protest was unheeded, 1 2 3 4

Above, p. 93. Above, p. 147. Rot. Pari. iii. 85-86 (no. 42). Parliaments and Councils of Mediaeval Ireland, i. 205-6. 244

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and, when a new king came to the throne, he confirmed the ordinance. 5 There is no reason to suppose that the ordinance did raise any general resentment in Ireland: rather the reverse. 6 And royal legislation for Ireland was, in general, innocuous, even if it conferred no great benefit. The second occasion when the power of the Crown to legislate for Ireland was challenged was in 1460, but, as w e shall explain in due course, this was a political maneuver of York against Lancaster and we need not dwell upon it now. The first Yorkist king demonstrated how hollow the challenge was and with what lack of serious intention it was uttered. 7 In Ireland, however, the suggestion that English legislation was not binding lingered, and in 1468 it was considered desirable, in order to remove doubts, to enact that a statute of Richard II's against rape, the validity of which had been questioned, was adjudged to be in force in Ireland. 8 This confirming statute was limited in its effect, but the underlying principle is manifest, and, though the point was argued on occasion,9 English legislation continued to be applied to Ireland. 10 Legislation was one function of the kingly office: a closely allied function was the dispensation of justice. W e have seen how, in the 5

Early Statutes Ireland, pp. 500-502. There were representations regarding its administration but not against its principles (ibid., pp. 578-80). In 1480 the 'statute' was confirmed (Statutes, 12-22 Edward TV, pp. 816-18). 7 A more lasting consequence of the act of 1460, and one that seems to have given rise to some anxiety in England, was the perpetuation of the alleged 'custom' which gave protection to refugees in Ireland against writs and letters ordering their arrest and extradition to England: see below, pp. 260-63, 266. 8 Statutes, 1 - 1 2 Edward IV, p. 618. This statute of 6 Richard II was ordered by a writ of 2 September 1391 to be proclaimed in Ireland as applicable to that country (Harris Collectanea, iv. 40). 9 As in the action brought by the citizens of Waterford against the treasurer of Calais. This was begun by petition to the king's council and referred to the judges in the exchequer chamber. The case is reported in the Year Books of 2 Richard III and Michaelmas, I Henry VII. It was argued that, by reason of their charters and licenses granted by Henry VI and Edward IV, wool and other merchandise shipped overseas from Waterford were not required to be landed at the staple at Calais. A preliminary point was whether English statutes bound the king's subjects in Ireland, and Sir William Hussey, chief justice of the king's bench, overruling the opinion of other judges, held that they did. The main argument was on the point whether the king's license was valid. The fact that the Waterford shippers sought licenses is, of course, evidence that they believed that otherwise the statute might be enforced against them (Year Book, 2 Richard III, fo. nfc-12; Year Book, Michaelmas, I Henry VII, fo. 2^-3. The report of 2 Richard III is printed also in Hemmant, Select Cases in the Exchequer Chamber, ii. 94-96, and that of I Henry VII in Pollard, Reign of Henry VII, iii. 292-94). 10 Below, pp. 273-74. 6

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early years of the thirteenth century, the court at Westminster was hearing Irish actions and by what slow stages jurisdiction was delegated to the Irish justiciar. 11 It was not until the reign of Henry III that the medieval judicature, whether in England or Ireland, achieved an enduring structure. The continuous history of the king's bench does not begin in England until 1234, from which year we have the threefold division of the courts of common law—king's bench, common bench, exchequer of the pleas12—and the organization of the courts of common law in Ireland was longer delayed. 13 Moreover, the relation of the Irish to the English courts was complicated by the grant of the lordship of Ireland to the king's first-born, Edward. 1 4 The interference of the Crown was, however, occasionally sought, and there is a noteworthy case in which the defendant, the abbot of Mellifont, having pleaded in the common bench at Dublin that he could not answer without the king, was summoned to England where the action was tried during the parliament of Oxford in 1258. 1 5 But until the lord of Ireland was once more king of England, it was not to be expected that there would be any organized scheme of appellate jurisdiction. Early in Edward I's reign the justiciar had protested against the practice of the English chancery in granting writs to prosecute appeals from Ireland, 16 though Irish courts might themselves give a plaintiff permission to seek a remedy in England. 17 There was, however, no desire on the part of the English government to encourage the trial of Irish causes in the first instance in England, and in 1305 the judges, sitting with the rest of the council present in London, assented to a judgment, proposed by the council with the king, to the effect that for a trespass in Ireland the writ should issue from the Irish chancery and not from the English chancery. 18 This decision would not and was not intended to stay the stream of appeals from Ireland, which came to the king's bench by means of writs of error and 11

Above, pp. 2 2 - 2 4 . Richardson and Sayles, Select Cases of Procedure without Writ, pp. xv-xvi; Jenkinson and Fermoy, Select Cases in the Exchequer of Pleas, pp. xxxix, liii. 13 Above, pp. 3 6 - 3 7 . The organization was not completed until the justiciar's court was reconstituted in 1 3 2 4 . 14 Above, pp. 5 7 - 5 8 . 15 Above, p. 62, n. 29. 16 Cal. Docts. Ireland, 1254-1284, p. 296. 17 John le Juvene, in a petition to the king in the Easter parliament of 1 2 9 0 , states that he had applied to the treasurer and to the justices in Ireland 'e nul dreit ne ly voleint fere, mes ly donerent cunge de aler en Engleterre pur se pleindre' (Cole, Documents, p. 7 8 ) . 18 Cal. Chancery Warrants, i. 2 5 3 - 5 4 . 12

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certiorari' and were sometimes evoked also for reasons of public policy or equity. 18 The development of petitory procedure in parliament, which characterizes the reign of Edward I, made it easy for the king's Irish subjects to approach him with grievances which the ordinary processes of the law would not remedy. It is clear too that the king himself encouraged this resort to the English parliament. Thus, one petitioner, who wished to appeal from a decision in Ireland, had taken the record and process to the king in Beam and had been adjourned to the Hilary parliament of 1290. 2 0 In March of the same year an agent of the citizens of Waterford had followed the king to Down Ampney and had been adjourned by the controller of the wardrobe to the Easter parliament.21 Again, an Irish petitioner in the Lenten parliament of 1305 reminds the king of a promise made by word of mouth in Scotland. 22 With such encouragement, the stream of petitions coming to the English parliaments steadily grew, 2 3 despite the expense of the journey if the petitioner appeared in person or, if he did not choose to travel, the cost of an attorney, 24 and also despite the hazards against which it was prudent, and perhaps necessary, to 19 Sayles, Select Pleas in the King's Bench, ii. pp. cxvi-cxvii. It should be noted that the references there given cover only a small part of the Irish appeals on the kings bench rolls of Edward I. 20 Cole, Documents, p. 57. 21 Ibid., pp. 72-73. The king was at Down Ampney from 9 to 16 March (Gough, Itinerary of Edward I, ii. 67). 22 Maitland, Memoranda de Parliamento, p. 237. 23 The roll for the Hilary parliament of 1290 preserves eighteen petitions, including those of Walter of Bodenham, who sues for the king, and other plaintiffs against Nicholas of Clare (Cole, op. tit., pp. 55-67). The roll for the Easter parliament of 1290 preserves a much larger number of petitions, thirty-nine by our reckoning (ibid., pp. 68-82). The roll for the Lenten parliament of 1305 preserves forty-four petitions, not all in point of fact (e.g., no. 410) actually concerning Ireland (Maitland, op. cit., pp. 232-54). 24 As to attendance in person or by attorney, see the reply to Adam of Fulbourn, who wished to expound the griefs of his uncie and brother: 'veniant ad proximum parliamentum post Pascha per se vel attornatos suos' (Cole, op. cit., p. 56). In the previous Hilary parliament the bishop of Emly was represented by an attorney (ibid., pp. 63-65). The following letter illustrates not only this point but also the practice of looking to England for relief: 'Suis domino Iohanni de Kirkeby et Willelmo de Odiham, salutem. Cum difficile sit abbati sancti Thome Dublinie frequenter ad curiam Anglie pro remediis requirendis de oppressionibus suis recurrere, vobis mandamus quod, auditis et intellectis peticionibus vobis per canonicos domus predicte porrigendis, sibi fieri faciatis remedium quale de iure et gracia curie videritis faciendum. Datum apud Acton' BumelT mi. kalendas Septembris' (Ancient Correspondence, ix. 116). The letter was probably written in 1283: cf. Maxwell Lyte, The Great Seal, p. 36.

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purchase letters of protection.25 Naturally enough, the larger proportion of the petitioners came from the ranks of the bishops, monastic clergy, magnates, and ministers, and those of humbler status are few, though it seems that they were increasing in number toward the end of Edward's reign.26 We have, however, more than one indication that the king and his council were not minded to draw to the English parliament and the English courts matters properly falling to the justiciar and ministers in Ireland. 27 The council, indeed, found it difficult to spare time even for the weightiest business from Ireland. In the Hilary parliament of 1290 the justiciar, John of Sandford, archbishop of Dublin, begged Edward to take counsel concerning the affairs of Ireland, but while the king agreed that he should do so as soon as possible and, indeed, had the matter much at heart, he was so occupied with arduous questions arising from his long absence from England that he could not find the necessary leisure.28 Nevertheless, a great amount of legal and administrative business did come from Ireland to the English parliament and king's bench. One reason doubtless was the political weakness of the Irish justiciar and the Irish council and the consequent difficulty of controlling Irish magnates who, though they were not all turbulent and might, as we have seen,2" themselves play an active part in the council, kept the land in perpetual turmoil. Hubert de Burgh, for example, appeared before the king in the Easter parliament of 1281 to answer for his trespasses and was required to appear again in the Easter parliament of the following year. 30 John fitz Thomas, the most lawless, perhaps, of all the Irish barons, engaged the attention of the English parliament on several occasions. In 1294 a n accusation of treason, brought by him against the justiciar, William de Vescy, and a countercharge of defamation would have been determined by 25 See the letter from the prince of Wales of 5 September 1305: 'Supplicatum est domino Willelmo de Hamilton', cancellario domini regis, quod habere faciat Willelmo de Caunton', vicecomiti de Cork', litteras domini regis de protectione in forma que conceditur aliis hominibus de Hibernia Venturis ad proximum parliamentum (Letters of Edward Prince of Wales, p. 104). 26 They are certainly more numerous in 1305 than in 1290. 27 This is evident from the replies to petitioners in the Easter parliament of 1290 and the Lenten parliament of 1305 (Cole, op. cit., pp. 68-82; Maitland, op. cit., pp. 232-54), as well as from the ruling regarding actions of trespass mentioned above, p. 246. 28 Cole, Documents, p. 56. 29 Above, pp. 26-27. 30 Cal. Docts. Ireland, 1252-1284, pp. 377, 390; Cal. Patent Rolls, 1272-1281, p. 426; Cal. Close Rolls, 1279-1288, p. 91.

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a judicial duel in Ireland, had not the parties, as well as the chief ministers, been summoned to the king's parliament at Westminster.31 Later in the same year John fitz Thomas seized and imprisoned the earl of Ulster: but although the Irish council enforced the release of the earl and the justiciar pardoned the offense, fitz Thomas was summoned to the parliament at Westminster to answer for his misdeeds.32 Again, in 1304 directions were given to summon him to appear at the next parliament, if this were legally permissible, to answer for wrongs committed against Agnes of Valence33—an old quarrel dating back to 129534—and in the Lenten parliament of 1305 the case actually came up, but it was on the complaint of Agnes that the justiciar, John Wogan, who was present in parliament, had failed to do justice, despite writs repeatedly addressed to him.35 So much Irish business in the English parliament necessarily entailed the presence there of Irish ministers. We have references to the presence of the justiciar and members of the council in 1290 and 1305; 36 in 1303 the archbishop of Dublin, in his capacity as justiciar, is required to come to England to advise the king as soon as possible 'or at least at the next parliament.'37 The escheator, a prominent member of the Irish council, is present at the Easter parliament of 1290.38 Accusations against the treasurer brought him several times to the English parliament. In 1290, at the Hilary session, Nicholas of Clare had to answer a number of charges laid against him by the king, by the executors of the archbishop of Tuam, by William of Beltesdale, a disappointed seeker after a benefice, and by the bishop of Emly.39 At the Easter session fresh charges were brought against him by Adam gl

Rot. Pari. i. 127-28, 132-34. Annals of Ireland, p. 323; Rot. Pari, i. 135-37. 3 3 P.R.O., C. 81/44/4396: 'a respondre a nous e a la dite Agneis a nostre prochein parlement, si ley Ie sueffre.' 34 Rot. Pari, i. 130-31. 3 5 Wogan made no defense and was required to do speedy justice and report to the next parliament. Agnes was given a writ accordingly from the English chancery (Maitland, Memoranda de Parliamento, pp. 240-42). Agnes appears to have neglected to obtain a writ from the Irish chancery, and John fitz Thomas seized upon the technicality: the point was considered by the council in England and Agnes was nonsuited on the ground that a common trespass in Ireland should not be pleaded in Ireland by writ of the chancery of England (CaZ. Chancery Warrants, i- 2 53"54) • The important conclusion follows that a suitor cannot obtain a remedy in parliament if he has failed to take the proper steps in inferior courts. 3 8 Cole, Documents, pp. 56, 58; Maitland, op. cit., p. 248. 37 Parliamentary Writs, i. 134. 3 8 Cole, Documents, pp. 69-70, 81-82. 39 Ibid., pp. 58-65. 32

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Gaynard, a minister of the queen's in Ireland, by Adam's son, William, by the bishop of Waterford and by John le Juvene. 40 In the same parliament the deputy treasurer, William of Clare, had also to appear, for, in the preceding January when the treasurer was in England, he had put under arrest merchants of the society of the Ricardi at Dublin who were engaged in collecting the new custom. This he had done in an endeavor to extract money to meet the king's demands, but the Ricardi enjoyed the king's protection and they would not brook arbitrary exactions and violence. 41 A later treasurer was the subject of complaints to the king, *by reason of which it seems to us that he is appealable before us at our parliament,'42 and the treasurer accordingly appeared at Westminster in the Lenten parliament of 1305. 43 It is evident that Edward I attempted to exercise personal control over the administration of all his dominions, largely through his parliaments, which were originally intended to meet twice a year, in the Easter and Michaelmas terms, very much on the model of the parliament of Paris, which provided a central court for all the dominions of the French king.44 But consequent upon Edward's preoccupation, first with his continental possessions and, in the second half of his reign, with Scotland, this scheme of terminal parliaments tended to break down, and in his latter years parliaments were held intermittently in England. 45 Nevertheless he adhered to the principle that petitioners should be encouraged to come to the English parliament, not only from Ireland but also from Gascony and the Channel Islands and, after he had made himself lord of Scotland, from that country as well. 46 The infrequency of parliaments in the latter part of his reign is an indication of the difficulty experienced in maintaining the continuous control that it was Edward's desire to apply to his outlying dominions. It is unlikely that there entered into the king's calculations the grave consequences that were likely to proceed from the constant attendance in parliament of ministers from overseas. The few surviving rolls of Irish petitions presented at parliaments of Edward I furnish 40

Ibid., pp. 77-78. Ibid., pp. 1 1 7 - 2 1 . Chancery Warrants, Series 1, C. 52/5234: 'par les quelles il nous semble qu'il est appelable devant nous a nostre pallement a respondre audit Geoffrei [de Mortone] sur les pleintes avantdites.' 43 Gilbert, Hist, and Mun. Docs., p. 224; Placitorum Abbreviatio, p. 255a. 44 Trans. R. Hist. Soc., Fourth Series, xi. 1 5 5 - 6 1 ; ibid., xxviii. 23. 45 Bulletin Inst. Hist. Research, v. 133-48. 46 English Hist. Review, xlvi. 542-46; the practice, of courfe, continued (ibid., xlvii. 195-99, 380-86). 41

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but fragmentary evidence, and to obtain a true appreciation of the strain upon the Irish administration, we must imagine the details we have given multiplied many times over. Centralization and delegation are incompatible, and the problem of reconciling the two principles was not solved by Edward I or by any later medieval king. The Irish administration was certainly not strengthened when every minister was subject to attack in England and had placed upon him the onus of defending his actions in parliament. For good or ill, it became impossible, however, during the distracted reign of his successor to maintain the system of Edward I. After his reign petitions in parliament from the outlying dominions of the English Crown, as well as from private petitioners in England, markedly diminished, and gradually fell to inconsiderable numbers under Edward III and later kings.47 Parliament is an aspect of the king's council and, as parliaments came to be summoned with less frequency, so, inevitably, petitions and representations came to be addressed in increasing numbers to the council for consideration, not at specially afforced meetings, but at its day-to-day sessions.48 It was, for example, before the council that the complaints against William of Windsor's administration were, for the most part, heard.49 In this case the council itself endeavored to reach a solution, but in other cases, where there was a more strictly justiciable issue to be tried, the council might transfer the matter to the king's bench. This happened, for example, when the family of Lawless and others presented a series of bills to the council, alleging that Elias of Ashbourne, chief justice of the justiciar's court, had been guilty of malpractices.50 The procedure is sometimes complicated, as when proceedings had been taken against the prior of Llanthony in respect of monies received by him from a former archbishop of Dublin. The prior obtained a writ of 'certiorari' returnable in the English chancery and then petitioned the council, asking that the errors in the process might be determined in the king's bench, to which court the action was remitted.51 In another case the burgesses of New Ross presented a petition to the council against the citizens of Waterford, and the parties were summoned to the English chancery, whence the case was transferred to the king's bench; but, in order that the action Bulletin Inst. Hist. Research, ix. 3-5. Baldwin, King's Council, pp. 283-84, 342-43. The connection with the intermittence of sessions of parliament is not, however, noticed here. 4 9 Above, pp. 81, 84. 60 K.B. 27/337 (Trinity 18 Edward III), Rex, m. 27. 5 1 K.B. 27/378 (Hilary 29 Edward III), m. 46. 47

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should be determined, the plaintiffs thought it necessary to petition the king in parliament, since his assent was required before judgment could be given in a case that turned upon conflicting royal charters.52 It must be remembered that, among the outlying dominions of the English Crown, Ireland stood in an exceptional relation. Alone it was subject to the English common law and to English legislation. Consequently the king's bench was in every way qualified to hear appeals from Irish courts and being, moreover, the court held technically coram rege and exercising its appellate jurisdiction by direct delegation from the king, it was the appropriate tribunal to which to refer appeals of a strictly judicial character. The existence of royal parliaments both in England and Ireland complicated the prosecution of appeals, as we shall shortly explain,53 and there were appeals to the king from Ireland which were extra-judicial in character, and upon which the king's bench was not competent to adjudicate. The immediate point to notice, however, is that the infrequency of sessions of parliament or the diminution of petitions to parliament left the king's bench unaffected: the court could still, in the exercise of its normal jurisdiction, hear appeals from Ireland. While there was nothing unusual in an action's finding its way to the king's bench as the result of a petition to the king in council or in parliament,54 appeals in error from Irish courts came, and continued to come, directly before the king's bench without recourse by way of petition to the king's council or to parliament. Appeals came not only from the justiciar's court (the Irish equivalent of the English king's bench), 55 but also from the Irish common bench 56 and justices itinerant,57 and in certain circumstances, when the king's interest was involved, an action, purely Irish in subject matter, might originate in the king's bench. 58 These actions were principally concerned with land and the right of presentation to churches, but others touched such issues as the right of Roger MorK.B. 27/462 (Trinity 50 Edward III), Rex. m. 19. Below, pp. 254-60. 5 4 K.B. 27/290 (Michaelmas 6 Edward III), m. 28; Rot. Pari. II, 98-99 (no. 5); K.B. 27/459 (Michaelmas 49 Edward III), m. 55. 5 5 K.B. 27/283, m. 155; 286, m. 128; 3 1 8 , m. 156; 342, m. 163; 344, m. 60; 353» m. 1 1 8 ; 354, m. 133; 369, m. 64; 401, m. 72: the cases cited fall between Hilary, 5 Edward III, and Michaelmas, 34 Edward III. 5 6 K.B. 27/323, m. 1 1 7 : printed Year Books, 14-15 Edward III (Rolls Series), pp. 326-32, 373-836 7 K.B. 27/273, m. 128: printed, from another source, by Wood, 'Muniments of Edmund de Mortimer,' in Proc. R. Irish Acad., xl, C. 337-47; K.B. 27/364, m. 18. 5 8 K.B. 27/334 (Michaelmas 17 Edward III), Rex, m. s8d. 52

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timer to hold pleas in the franchise of Trim,58 and the misdeeds of the first earl of Desmond, who was accused, among other crimes, of conspiring to make himself king of Ireland and of entering into treasonable correspondence with the kings of France and Scotland.60 To complete our account of the supervision exercised in England over Irish affairs, it is necessary to do no more than refer briefly to the relation of the English exchequer to the Irish exchequer. We need not go back beyond the reform of 1293, the effect of which was to require the treasurer of Ireland to account periodically at Westminster for his receipts and expenditure.61 Normally there was no serious question to be raised and the treasurer obtained his discharge without difficulty. Occasionally detailed inquiries were pursued, as when, in 1326, the treasurer, one of the chamberlains, and the archbishop of Dublin (a former treasurer) were implicated in extensive frauds on the Irish exchequer.62 The examination of the treasurer's account afforded, moreover, an opportunity for attacking the Irish administration, ostensibly on financial grounds, but fundamentally on political ones, and, in this way, William of Windsor was attacked on the examination of the account df the treasurer, Stephen Vale, bishop of Limerick.63 But this was only one line of attack, and it was found more practicable to approach the council direct.64 With the change in methods of administration which placed the revenue of Ireland at the disposal of the lieutenant and, in addition, provided him with a stipend from the English exchequer, financial control was relaxed, and though, from time to time, an audit was made, the relative paucity and meagerness of the accounts rendered show that close supervision was no longer exercised.68 Here, then, is the outline of the relations of the Crown to the Irish administration and the king's Irish subjects as they began in the 69 Proc. R. Irish Acad., xl., ut supra. so K.B. 27/364 (Trinity 25 Edward III), m.18. 61 Rot. Pari., i. 98 (no. 11); Red Book of the Exchequer, iii. 974-78; Madox, History of the Exchequer, ii. 135-36. The reform seems to have arisen out of the charges against Nicholas of Clare, the Irish treasurer (Cole, Documents, pp. xiiixxxi, 58-65, 83-128; Rot. Pari., i. 144a; above, pp. 249-50). 6 2 The proceedings fill a number of rolls: E. 101/238/23, 25, 29; 239/1, 11-13. 63 Parliaments and Councils of Mediaeval Ireland, i. 39-44. 6 4 Above, p. 84. 6 5 This will be apparent by comparing the number of accounts to the end of the reign of Edward III with those rendered thereafter, as summarized in P.R.O., Lists and Indexes, no. xxxv. pp. 152-60, and no. xi. pp. 51-52. The series is not complete, but nearly so. For the scanty financial returns of the reign of Henry VII, see Analecta Hibemica, x. 9, 17-28.

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thirteenth century and evolved in the fourteenth century. The fifteenth century saw no essential change. Financial control, as we have just explained, became intermittent, and, with the decay of the Irish courts, fewer Irish cases were likely to be brought before the king's bench. But, on the other hand, the king's council had frequently to turn its attention to Irish affairs. Until Edward IV remitted the government of Ireland to the earl of Kildare there was the ever-present problem of finance.66 The lamentable administration of the land during the lieutenancy of Thomas of Lancaster troubled the council in the early years of the fifteenth century,67 while the Ormond-Talbot feud and, after that was composed, the charges brought against Ormond by the prior of Kilmainham and Giles Thomdon, occupied the council constantly for thirty years or more.68 Any administrative controversy that concerned the conduct of the lieutenant or his deputy or a justiciar was bound to come to the king's council, for there was no other way of resolving it. Ancient precedent alone decided this course, and any possible doubt was removed in the fifteenth century when a clause was introduced into patents of appointment, stipulating that, if the lieutenant or his deputy did anything unlawful, the council in England was to correct and reform the matter.68 Justiciable issues might still come before the English parliament in circumstances that are illustrated by two instructive examples. In the reign of Henry IV the prior of Llanthony in Wales brought an action against the prior of the Maison Dieu in Mullingar before the Irish common bench, and thence, on a writ of error, before the Irish king's bench. The process was removed in 1427 to the Irish parliament, where the decision of the king's bench was reversed. The prior of Llanthony thereupon obtained a writ from the English chancery removing the process into the English king's bench and, thereafter, because that court had no authority to review the acts of the Irish parliament, petitioned the king in the Westminster parliament of 1429 and obtained a writ directed to the Irish chancery calling the process before 6,1

Above, pp. 227-33, 237. Above, pp. 163-64. 68 Above, pp. 170-71, 200-202, 206, n. 63. 69 The first instance appears to be the patent of Edmund, earl of March, 9 May 1 4 2 3 ( F o e d e r a , x. 282-85). No such clause appears in the patent to the earl of Ormond of 10 February 1420 (Cal. Patent Rolls, 1416-1422, p. 256: text printed by Prynne, Animadversions, pp. 4 1 2 - 1 3 , and thence by Lascelles, Liber Munerum, iv. 4 7 ) . 67

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the English parliament.70 The principle thus established, that the acts of the Irish parliament could not be reviewed in the English king's bench, created a difficulty for litigants which was clearly present in the mind of the complainant in the second of our cases. This case has a complicated history which, since it throws a good deal of light upon the control of Irish appointments by the Crown and the relations between the Irish government and the king's council in England, it will be well to set out in detail. John Pillangton had been appointed escheator of Ireland by letters patent of the English chancery, dated 8 February 1419. 71 Despite this, John Charnels was appointed to the same office later in the year by Richard Talbot, archbishop of Dublin, when acting as deputy lieutenant,72 and Charnel's appointment was confirmed by the English chancery on 26 November 1424. 73 His tenure of the office seems to have been intermittent,74 but he was still being addressed as escheator in October i428.7S Subsequently Pilkington took proceedings against him in England, and Charnels was ordered to appear in chancery to show cause why the letters patent in his favor should not be annulled. He made default and on 8 May 1430, in his absence, decision was given against him on the advice of the judges, the serjeants-at-law, and other learned members of the council.76 There seems no room for doubt that Pilkington's had been the prior appointment and that the only issue to be decided by the council was whether the later confirmation by the king of Charnels' appointment superseded the earlier grant. At this stage, therefore, no constitutional issue appears to have been involved. But though it might be thought that there could be no question of an appointment in Ireland superseding an appointment by the king, especially in face of the decision that Pilkington had obtained in his ™ Statutes, Henry VI, pp. 2-8; K.B. 27/669 (Trinity 6 Henry V I ) , 111.41; Rot. Pari. iv. 3 6 1 - 6 2 ; Ancient Correspondence, xliii. 1 8 1 . 71 Cal. Patent Rolls, 1416-1422, p. 3 3 1 . The appointment was confirmed on 14 February 1 4 2 3 (Cal. Patent Rolls, 1422-1429, p. 5 1 ; Cal. Rot. Pat. Hib., p. 227 [no. 4 2 ] ) . 72 Cal. Patent Rolls, 1429-1436, p. 57. Charnels' appointment cannot have been earlier than Talbot's own appointment, about the beginning of July (Wood in Proc. R. Irish Acad.., xxxvi. C. 2 3 3 ) , and he was in office before the end of the year (Cal. Rot. Pat. Hib., pp. 2 1 5 [no. 2 1 ] , 2 2 3 b [no. 2 b ] ) . 73 Cal. Patent RoUs, 1422-1429, p. 257. 74 He evidently lost the office before the accession of Henry VI (Cal. Rot. Pat. Hib., p. 2 3 3 b [no. 1 6 ] ) . 73 Ibid., p. 248 (no. 10). 76 Cal. Patent Rolls, 1429-1436, p. 57.

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favor, nevertheless, although he recovered the escheatorship for a time77 and was being addressed as escheator in September and October 1435, 78 early in 1436 he had been replaced by James Blakeney, the chancellor of the Dublin exchequer. 79 It does not appear whether Pilkington took any immediate steps to assert his rights and, when we next obtain information, the position had been radically changed. In a parliament that met at Dublin on 16 November 1437, it was enacted that all those who held office in Ireland by the king's gift and were absentee should serve their office in person or, if they failed to do so, should automatically forfeit it.80 This parliament, it is important to note, had been summoned by Richard Talbot in his capacity as justiciar, elected in May 1437 when the office of lieutenant was left vacant after the retirement of Sir Thomas Stanley. 81 Under the statute a period of grace until Easter 1438 was allowed to absent office-holders, but since Pilkington, who appears to have been continuously resident in England, 82 had not then taken up his duties in person, his office was regarded as vacant. When this news reached him, he decided to appeal to the English parliament and presented a petition to the commons, apparently in the session which began on 12 November 1439. He challenged the action of the Irish government on two grounds. In the first place he argued that the archbishop of Dublin had no authority from the king to summon or hold a parliament83 and, in the second place, that his election as justiciar did not empower 'the assembly called their parliament' to override an instrument under 7 7 By 27 November 1434 (Cal. Rot. Pat. Hib., pp. 256-57 [no. 32]). The gaps in the series of Irish chancery rolls leave it in doubt when Pilkington recovered his office, but entries of 30 September 1434 and 22 February and 16 July 1435 from the close roll of 13 Henry VI show that he was addressed as escheator on these dates and that he was serving the office by deputy (B.M., Additional MS. 4798, fos. 29-31). 78 Cal. Rot. Pat. Hib., pp. 259 (no. 5); 260 (no. 39); 261 (nos. 41, 42). 79 Ibid., pp. 259 (nos. 3, 9, x i ) ; 260 (no. 28); 261 (nos. 42-44). For Blakeney's appointment as chancellor of the exchequer, see ibid., p. 250 (no. 18). 80 Statutes, Henry VI, p. 84. This is a recital of the act which has not survived. 8 1 Wood in Proc. R. Irish Acad., xxxvi. C. 235. 8 2 As indicated by his appointment of attorneys in Ireland (Cal. Patent Rolls, 1416-1422, p. 426; Cal. Patent Rolls, 1422-1429, pp. 140, 457). 8 3 It had become customary to insert a clause in the lieutenant's commission empowering him 'ad parliamenta et concilia . . . quociens opus fuerit summoned et convocari seu assignari facienda' (Prynne, Animadversions, pp. 412-13; Foedera, x. 282-85; Cal. Patent Rolls, 1423-1436, p. 105). This left it open to argument whether a justiciar had the like authority.

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the great seal of England. The petition was passed by the commons to the lords, but the final decision does not appear.84 In any case it was not likely to have been helpful to Pilkington, for his information was at fault. He believed, and stated in his petition, that his old adversary, John Charnels, had been appointed to the escheatorship under the great seal of Ireland. Whether this had actually been done or not, Thomas Bathe, unknown apparently to Pilkington, had solicited the king for the office and had obtained a grant under letters patent from the English chancery, dated 1 1 July 1439.85 Further, Bathe had succeeded in making good his claim in Ireland and, since he was resident there, he was protected by the Irish statute. Again, there was the position that two men claimed the Irish escheatorship under direct grants from the king. When Pilkington realized this, he decided to bring an action against Bathe in the English king's bench, and the action was tried in the Michaelmas term 1441. 86 The same issues were raised as in his petition to parliament and, though there is no report of the judgment, it seems evident that he failed in his action, presumably on the ground that the court would not question the acts of the Irish parliament. Here perhaps the matter might have rested, had not a very similar issue been raised shortly afterward by Giles Thomdon. Thorndon had been appointed treasurer of Ireland by letters patent of the English chancery of 12 May 1437; 87 the terms of his appointment had been enlarged and, by letters patent of 6 January 1440, he was permitted to hold office during good behavior instead of at the king's pleasure.88 Also, by letters patent of the English chancery, he was granted the offices of constable of Dublin castle88 and of constable of the castle and keeper of the town of Wicklow.90 However, in circumstances that are quite obscure, the parliament that met at Dublin on 17 November 1441 passed an act, the effect of which was to deprive Thorndon (at 84

C. 49/49, no. 12. Cal. Patent Rolls, 1436-1441, p. 302. 86 Year Book, Michaelmas 20 Henry VI, fos. 8b-gb. W e have failed to trace the record of this action on the plea roll. In the report the defendant's name is represented by 'A,' but there can be no doubt that this stands for Bathe. 87 Caí. Patera Rolls, 1436-1441, p. 63. The appointment was repeated, with licence to appoint a deputy, on 1 3 July (ibid., p. 7 3 ) . 88 Ibid., p. 3 6 1 . 89 Ibid., p. 197. 90 Ibid., p. 240. 85

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least, so he alleged) of all his offices except the treasurership. 91 Since the parliament roll has disappeared, the terms of any legislation are unknown: what is known is that the archbishop of Dublin, Richard Talbot, with others, crossed over to England as messengers from the parliament to the king and that certain of them took the opportunity of attacking the earl of Ormond. 92 Thorndon crossed over about the same time but upon another errand, having been summoned for the audit of his accounts. 93 H e took the opportunity to present a petition to the king in the parliament that met at Westminster from 2 5 January to 2 7 March 1442, in which he asked that the act of the parliament of Dublin to which he took exception should be revoked and annulled. This request was ignored, but the lords agreed that Thorndon should be confirmed in his offices, except the treasurership, which should be at the disposal of the king or the lieutenant. 94 T h e answer could have been little to Thorndon's liking, for if letters patent had been based upon it, his tenure of the treasurership would have been precarious. Whatever motive lay behind this petition, it seems highly doubtful whether he had, in fact, been deprived of his offices, for, as the sequel shows, he was still in possession of them the following year. Thorndon continued for several months in England, giving evidence before the king's council on the state of Ireland, 95 and, perhaps incautiously, 91 In Ancient Petition, no. 7179 (which, as indicated below, can be dated January-March 1442), Thorndon speaks of 'an act made in the parliament last holden in your same land.' This can only be the parliament of 17 November 1441. The earl of Ormond was then deputy to Lord Welles: he was himself appointed lieutenant on 27 February 1442. 92 Richard Talbot was accompanied by the abbot of St. Mary's, Dublin, and brought a message, the terms of which are indicated by the replies of 24 March 1442 (Proc. Privy Council, v. 184-85). But it appears that Richard Wogan, the chancellor, was also one of the messengers and, according to his account, which was challenged, he and his companions were charged with the request that 'a mighty lord of this your realm of England' should be appointed lieutenant (E. 101/248/16, m.2: cf. Proc. Privy Council, v. 3 1 7 - 1 8 ; Graves, Roll of King's Council, pp. 273, 277). 93 Proc. Privy Council, v. 328. 84 Ancient Petition, no. 7179. This petition is inscribed with a note of the lords' decision and also a note of the commons' assent. The petition must be dated after the letters patent of 6 January 1440, to which reference is made, and before Thorndon's visit to England in 1443, for it is expressly stated that he had not been deprived of the treasurership. The only parliament in which the petition could be presented is therefore that of January-March 1442. 95 The articles printed in Proc. Privy Council, v. 321-24, are anterior to 5 June 1442, for that is the date of the letters of protection (CaZ. Patent Rolls, 1441-1446, p. 73), issued in compliance with Thorndon's request at pp. 323-24. He was still in England on 24 August (Proc. Privy Council, v. 202).

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criticized Ormond. 9 6 On his return to Ireland his relations with the lieutenant seem to have been outwardly friendly, 97 but soon after Easter 1 4 4 3 he left the country surreptitiously. 98 There is no question but that he now had the intention of making common cause with Ormond's enemies, w h o hoped to bring about the earl's downfall by a series of trumped-up charges before the king's council. 99 Thorndon appointed a deputy before vacating his post, but this appointment was ignored and the lieutenant filled the office by appointing Robert Dyke, archdeacon of Dublin. 1 0 0 Thorndon's other offices were seized into the king's hand. 1 0 1 T h e situation had now arisen which Thorndon alleged to have existed in his petition in the previous year. The unh a p p y treasurer appealed once more to the king and was confirmed in all his offices on 1 8 M a y 1 4 4 4 . 1 0 2 Whether or not he was assisted by the answer to his petition and whether or not that petition had been strictly truthful, it might well appear, on Thorndon's showing, that the king had overruled an Irish statute that conflicted with a grant under the great seal of England. 96

Ibid., pp. 321-22. It is likely that he disclosed more under examination. On 25 April 1443 he joined with Richard fitz Eustace, keeper of the great seal, and the rest of the council in requesting payment to Ormond of the arrears of his stipend (ibid., pp. 325-27). 98 That Thorndon left Dublin surreptitiously is evident from his anxiety to protect those who had aided his departure—the masters of the boats that conveyed him and his goods to England and the mayor of Dublin (E. 101/248/12). According to his own account he left Ireland at Easter ( 2 1 April) 1443 (Cal. Ormond Deeds, iii. 152-53), though his presence at Drogheda on 25 April is shown by the letter mentioned in the preceding note. 99 See above, pp. 200-202. The prior of Kilmainham was committed to Thorndon's keeping in London (Cal. Ormond Deeds, iii. 153; Devon, Issues of the Exchequer, pp. 450-51), and other evidence shows that they were associated (C. 49/34/31, no. 2 ) . Moreover, another of Ormond's adversaries, Edmund Brian (Devon, op. cit., p. 4 6 1 ) , left Dublin with Thorndon (E. 101/248/12) and is subsequently associated with him in London (C. 49/34/31, no. 3). 100 T h i s rests on Thorndon's assertion (E. 101/248/12). It may be that Dyke was appointed merely to act, but the effect seems to have been that Thorndon lost his salary for a time (Proc. Privy Council, v. 332-33). Thorndon appointed Christopher Bamewell, chief justice of the king's bench, as his deputy on this occasion. When he had crossed to England in the previous year, he had appointed William Chever, secc ' " * ''ie king's bench, as his deputy, apparently at Ormond's instance 101 E. 101/248/12. 102 Cal. Patent Rolls, 1441-1446, p. 271. At the same time, instructions were issued to the authorities of Dublin and Drogheda to pay him his fees (Col. Close Rolls, 1441-1447, p. 1 7 5 ) . These instruments are clearly consequent upon E. 101/248/12. It is difficult to reconcile these instruments with Thorndon's allegation that similar instructions were sent to Ormond and that he ignored them ( Proc. Privy Council, v. 332-33 ). 97

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This can hardly have been unknown to Pilkington, and he resolved to reopen his dispute with Thomas Bathe. To this end he put forward a bill in the next parliament that met at Westminster in 1445-46. In this bill he denied that a justiciar had power to summon or hold a parliament or to make statutes or 'establishments.' The next stage in the proceedings is obscure, but Bathe received a writ from the English chancery—served, of course, by an agent of Pilkington's—reciting the purport of the bill and doubtless calling upon him to answer. Bathe, however, who, as lord of Louth, sat as a peer, produced the writ in the parliament that met at Trim in January 1447 before John Talbot, earl of Shrewsbury, then lieutenant. Thereupon it was decided to include in the 'message' to the king a refutation of Pilkington's assertion, as being in lesion of the privileges, liberties, and usages of Ireland, had and used without interruption from its conquest by King Henry fitz Empress to that very day. 102a The extent of an elected justiciar's authority does not, however, seem to have excited controversy with the Crown, although in 1485 a justiciar's power to summon parliaments was reasserted. 103 There is, of course, no suggestion that a justiciar's authority was more than temporary, pending the appointment of a lieutenant by the king or of a deputy by the lieutenant, nor is there any challenge to the appellate jurisdiction of the king's bench and parliament in England, for that would be to challenge the ultimate authority of the Crown. We must not be misled by the declaration at the parliament of Drogheda in 1460 that Ireland was a 'separate body corporate . . . enfranchised from the operation of any specific law of the realm of England, save only those laws admitted, accepted, approved and proclaimed by the lords spiritual and temporal and the commons in great council or parliament,' 104 for this declaration, as the context shows, was a mere measure of protection devised by the duke of York, the lieutenant, who was then a refugee in Ireland from the Lancastrians. 105 The declaration went on to maintain that there was an ancient custom, privilege, and franchise that any Irish resident ought not to obey any direction, given under any other seal than the Irish great seal, requiring him to answer outside 102« statutes, Henry VI, p. 86. 103 Below, pp. 327, 3 3 1 . 104 Statutes, Henry VI, p. 644. 105 Cf. Statutes at Large, Ireland, i. 43-44: this is the repealing act of Poynings' parliament (10 Henry VII, c.3).

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Ireland or, in other words, that writs and letters to this effect from England were invalid.106 Let us, in the first instance, examine this claim, leaving aside for the moment the question of the veto exercised by the Irish parliament on the application of English legislation to Ireland. The grievance underlying the claim was of long standing. In June 1441 a message had been sent to the king from a great council at Naas, in which there was an article claiming that the Irish courts—chancery, king's bench, common bench, exchequer, parliaments, and great councils—were competent to determine all manner of pleas and plaints arising in Ireland, as well touching the king as other persons, and that it had not been the practice for Irish residents to plead or to be impleaded in such causes outside Ireland by means of writs and privy seals from England. In particular, it was claimed that no ministers or others had, by color of such writs or privy seals, been removed from Ireland to England to defend themselves, except only in two cases, where treason against the king's person was alleged or where the Irish parliament had failed to do justice and a writ of error was brought.107 In support of this claim there was cited the ordinance for Ireland made at Westminster in 1357, one clause of which provided for the transmission and trial in Ireland of complaints made in England against Irish ministers and others,108 but the draughtman evidently had in mind also the king's reply in 1342 to a petition from Ireland, when he agreed that, except where treason or anything touching the royal person was in question, anyone indicted for felonies or trespasses committed in Ireland should not be required, by writ of the English chancery, to answer in the English king's bench, but should be tried in Ireland, as the practice had hitherto been.109 The representations were grounded in law and were moderately expressed. They do not seem to have been given an immediate reply and were repeated in a message from the parliament that met at Dublin in November 1441. The king at last replied in March 1442 that he was not disposed to summon men out of Ireland to England unless 'similar matters and causes shall move us as have moved our noble predecessors herebefore.'110 It was too 106 Statutes, Henry VI, pp. 644-46. IOT P.R.O., E. 1 0 1 / 2 4 8 / 1 6 , m . i . 108 Statutes of the Realm, i. 360-61: this ordinance was confirmed on 26 June 1 3 9 3 (Cal. Patent Rolls, 1391-1396, p. 298). 109 Cal. Close Rolls, 1341-1345, p. 5 1 3 ; Early Statutes Ireland, p. 350. 110 Proc. Privy Council, v. 184-85.

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much to expect that the growing and vigilant activity of the king's council would be deflected by fourteenth-century precedents. That there were restraints on summoning ministers and others from Ireland and that these restraints were relaxed at discretion is suggested by the application made by Giles Thorndon in 1443 for writs to summon before the king's council the men whom Ormond had appointed to replace him in the offices of which he had been deprived: in drafting the writs he desired, he inserted a clause: 'any statute or privilege of the said land of Ireland thereof contrary made or had notwithstanding.' 111 To what extent Thorndon was gratified is uncertain, but he complained in the following year that Ormond Tiath made Robert Dyke, archdeacon of Dublin, to bide at home and not to appear afore the king and his council in England, notwithstanding the said Robert Dyke had in commandment by the king's writ out of England upon pain of his allegiance.' And although Thorndon protested that 'the said lieutenant taketh upon him the king's part and comforteth the said Robert Dyke to disobey the king's commandment aforesaid,' 112 it is clear that both Ormond and Dyke had a strong case for resisting a writ of very dubious legality. Ormond seems to have taken this course consistently, for Thorndon made a general charge against him of having 'disobeyed many times the king's commandment under the king's great seal out of England, privy signet and signet of the Eagle to the said lieutenant directed and delivered upon pain of his allegiance and otherwise.' 113 We may add another instance of an application for a writ to summon an Irish minister to England to defend an action brought by a subject, an application that is not without its irony, for it was made by Richard, duke of York, himself in 1446, the year before he became lieutenant of Ireland. In a petition to the king he complained that the Irish chancellor had deprived him of the patronage and advowson of the church of Rathwere, and he asked for letters under the privy seal, addressed to the archbishop of Dublin, 'your justice there, and to the remnant of your council,' requiring restitution. He asked further that, if the chancellor refused to comply with this order, then a writ of 'sub poena' should be issued, requiring him E. 101/248/12: see above, p. 259. Proc. Privy Council, v. 333. Since Ormond is said to be in England (p. 332, no. 8), the date of this document must be late in 1444, for the earl was still in Ireland in August (Graves, Roll of the King's Council, pp. 3 1 1 , 3 1 3 ) . 113 Proc. Privy Council, v. p. 333. The privy signet is doubtless the seal which is elsewhere called the signet of arms. For these two seals of Henry VI's, see Maxwell Lyte, The Great Seal, pp. 121-25. 111 112

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to appear in person in England to answer the charge.114 It is evident from these examples that, if they thought it would serve their turn, litigants with interests in Ireland had no scruple in seeking to transfer their actions to England or to secure the examination of Irish ministers before the king's council. On the other hand, it cannot be doubted that such attempts were generally resented in Ireland, although a distinction was drawn in matters which affected the king's interest and no objection was taken to appeals in error. The possibility is plain, however, that a rule, salutary where private litigants were concerned, might be stretched to impede royal jurisdiction, and there can be no doubt that this was the intention of the duke of York in 1460 and that this was feared when Edward IV and Henry VII decided that the rule should be abrogated. 115 But to return to the other claim asserted in 1460, that only those English laws were in operation in Ireland that were admitted, accepted, approved, and proclaimed in Irish parliaments and great councils. We have already said enough to show that this assertion had no basis in history, 118 and we shall see that after 1460 English legislation was enforced in Ireland, although it was deemed necessary in Poynings' parliament to enact a statute that reasserted the principle and removed any doubts there may have been on the subject.117 Moreover, the true relation of Ireland to the English Crown was demonstrated in 1479 when it was necessary to clarify the position created by the acts of two rival parliaments. The occasion arose in this way. Edward IV's brother George, duke of Clarence, who had been appointed lieutenant in 1471, was attainted on 7 February 1478 and secretly executed. His deputy, William Sherwood, bishop of Meath, must have vacated office when news of the attainder reached Ireland, and though on 10 March the king appointed the duke of Suffolk in Clarence's place for a term of twenty years, 118 he did not take up office, and consequently Ireland was left without a governor. To carry on the government, Thomas, seventh earl of Kildare, was elected justiciar and, when he died on 25 March, his son Gerald, the eighth earl, was elected in his place. 119 These successive elections mark the dominance of the Geraldines. Their perpetual feud with the Butlers had flared up in 114 118 118 1,7 118 119

P.R.O., E. 28/76 (15 July 1446). Below, p. 266. Above, pp. 92-93. Below, pp. 273-74. Cel. Patent Rolls, 1476-1485, p. 90. Above, pp. 168-69.

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1476, and early in the following year Sherwood had visited England to solicit the good grace of the king and the lieutenant for the public weal and relief of Ireland. 120 In July 1477 the king had dispatched a mission to Ireland, consisting of the archbishop of Armagh and one of his own household, Alfred Comburgh, squire of the body, in an endeavor to compose the quarrels of the factions. 121 Evidently their efforts met with no lasting success. Meanwhile, the earl of Kildare was in power and in no mind to relinquish it. However, on 6 July 1478, the king appointed his infant son, George of Windsor, to be lieutenant, Henry, lord Grey, being appointed deputy. 122 In the interval the earl of Kildare had summoned a parliament that met at Naas on 29 May and was adjourned to meet at Dublin on 6 July, with a further adjournment to Connell for 14 September. 123 In justification of the proceedings of lord Grey, who had identified himself with Kildare's opponents, it was later stated that the king had sent letters under the privy seal and the signet to Kildare, canceling his appointment as justiciar and ordering him not to hold a parliament or to impose any taxation.124 But it seems manifest that any such letters could not have been written before 6 July, when the new lieutenant was appointed, and possibly not until after Grey had arrived in Ireland, apparently late in August or in early September, 125 and had reported back to the king. Since the letters have not survived we can only guess at their purport, but it is evident from the sequel that the summary given on Grey's behalf does not merit credence. It would appear also that Grey's own authority was questioned, that the chancellor refused to acknowledge it, and that Grey obtained a mandate from the king empowering him to make temporary provision while the use of the great seal was in suspense. 126 Before effect could be given to this mandate, perhaps before it was received, Grey had summoned a parliament to meet at Trim on 6 November. At this parliament, which 120

Statutes, 12-22 Edward TV, p. 464. Foedera, xii. 44. 122 Cal. Patent Rolls, 1476-1485, p. 1 1 8 ; Foedera, xii. 89. 123 Statutes, 12-22 Edward IV, pp. 584, 624, 628. 124 ibid., p. 650. 1 2 5 Grey must have been in Ireland in time to issue writs forty days before his parliament assembled on 6 November. On the other hand, the force of 300 menat-arms and archers, which was to accompany him, was not given instructions to assemble at a convenient place near Conway until 9 August (Foedera, xii. 89): the muster had previously been fixed for 19 August (Analecta Hibemica, x. 49), but the actual dates of the muster and of embarkation are not known. 126 Statutes, 12-22 Edward IV, p. 662. 121

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was adjourned successively to Drogheda and Dublin, all the acts of Kildare's 'pretended' parliament were quashed and Grey's own authority was confirmed.127 The last session of Grey's parliament began on 31 May 1479, 128 but in the previous March the infant lieutenant had died and with him Grey's authority had expired. There is nothing to show that it had been renewed, and on 5 May another infant prince, Richard, duke of York, had been appointed lieutenant and, two days later, Robert Preston, lord Gormanston, was made his deputy.129 In the meantime the dispute regarding the validity of the acts of the two parliaments had been referred to the king. Grey himself seems to have crossed over for a brief visit to England late in 1478, leaving lord Gormanston to act in his place.180 Kildare also was in touch with the court, and on 10 February 1479 a protection was issued in his favor and that of the archbishop of Dublin, the prior of Kilmainham, the prior of All Hallows, Dublin, and Alexander Plunket, who were about to cross to England because the king proposed to issue certain ordinances and directions for restoring peace to Ireland. 131 After hearing Kildare and his associates, the king decided that the proceedings of both parliaments should be treated as nullities. But he upheld Kildare, whom he appointed deputy in place of lord Gormanston, and gave him verbal instructions for resolving the confusion into which the rival parliaments had plunged affairs. Later, presumably at Kildare's request, these instructions were put into writing, but not until October, more than two months after the earl's return to Ireland.182 Broadly, the king's intention was that, while the minor acts of the two parliaments should be ignored, certain of the matters dealt with in the major acts should be introduced in a new parliament in a modified form. The parliament met on 10 September, and the king's instructions were carried out by means of bills presented by the commons in 12T Ibid., pp. 650-52. 128 Ibid., p. 646. 1 2 » Cai. Patent Rolls, 1476-1485, p. 153; Foedera, xii. 109-10. 1 3 0 That lord Gormanston was in office on 14 January and 6 February 1479 is shown by two deeds of those dates (Deputy Keeper's Report, Ireland, xxiv. 107-8; Chartulary St. Mary's Abbey, Dublin, ii. 13-14). 131 Foedera, xii. 99-100. 132 -phis must be inferred from the entry of 5 October on the English patent roll (Cal. Patent Rolls, 1476-1485, p. 164), compared with Edward IV's actual instructions entered on the Irish close roll (Cal. Rot. Pat. Hib., p. 270, nos. 7-12: text printed by Gilbert, Viceroys, pp. 592-99, corrected in Deputy Keeper's Report, Ireland, lvii. 569). Kildare must have been back in Ireland by the beginning of August in order to be able to summon a parliament for 10 September.

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the first session. 133 On one point the instructions seem not to have been obeyed and that was to repeal an act invalidating 'any precept or commandment under the king's great seal, privy seal or signet in England,' which summoned any man out of Ireland. 134 No such act can be found on the rolls of Kildare's or Grey's parliament and the act that appears to be meant is the one of 1460, procured by the duke of York for his own protection, which we have already examined. 135 Perhaps the inexact reference was not understood, but, in any case, this act seems to have been unrepealed until 1494. 136 We cannot, however, suppose that there was a deliberate flouting of the king's wishes in 1479. His will was absolute and unquestioned, and his instructions dealt not only with the conflicting parliaments but with the whole structure of Irish government, endeavoring, in particular, to regulate the 'demeanour of the great officers' from the deputy downward. 137 One article is of immediate interest: the king ruled that in no parliament to be held thereafter—and we must remember that at this period a parliament might, by successive adjournments, extend into three years—were subsidies to be granted more than once a year and then within the accustomed limit of 700 marks. 138 The purpose of this instruction was doubtless to restrain the deputy's demands rather than the generosity of the commons,139 but it illustrates the minute care with which the king thought fit to order the business of the Irish parliament. If in these instructions and their execution we have a complete and conclusive demonstration of the control over parliament exercised by the king, we must not suppose that we are confronted with a new expression of royal sovereignty, for it is not the earliest example of the kind that we can discover. In the parliament held by the seventh earl of Kildare, as deputy of the duke of Clarence, in March 1474 a 1 3 3 With the king's instructions (Gilbert, op. cit., pp. 592-93; Statutes, 12-22 Edward TV, pp. 680-81), compare the related legislation (ibid., pp. 682-84 [nos. 4. 5]» 726-28 [no. 19], 730-36 [nos. 21-24]). Tne presumption is that the bills upon which the earlier statutes (nos. 4 and 5) were founded were introduced at Kildare's instance before the king's written instructions were received and that subsequently further bills were introduced resulting in the later statutes. 1 3 4 Gilbert, op. cit., p. 593; Statutes, 12-22 Edward IV, p. 681. 1 3 5 Above, pp. 260-63. 136 Statutes at Large, Ireland, pp. 43-44 ( 1 0 Henry VII, c.3). The repealing statute suggests that refusal to obey writs was claimed as a prescriptive, as well as a statutory, right, thus echoing the words of the act of 1460, 'auncient custumez, privilege et franchise.' Gilbert, op. cit., pp. 594"9913S Ibid., p. 599; Deputy Keeper's Report, Ireland, lvii. 569. 1 3 9 Above, p. 237.

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statute had been enacted, terminating a dispute between the archbishop of Dublin and the dean and chapter of St. Patrick's.140 This statute the archbishop regarded as derogatory, and he therefore appealed to the king and to the lieutenant, both of whom addressed letters to 'the deputy lieutenant and the lords spiritual and temporal and commons of the royal parliament in Ireland,' commanding them to repeal the statute in the next parliament.141 Since the deputy lieutenant in question was the earl of Kildare, these letters must have been written before June 1475, when the earl had been replaced by the bishop of Meath; 142 but they were seemingly withheld by the archbishop until 1478, when he produced them in the parliament held by the eighth earl of Kildare at Naas. On this occasion the repealing statute was passed at the instance of the archbishop,143 who had, of course, procured the letters and retained them until he thought fit to use them. The delay may suggest that some protest might have been raised on behalf of the dean and chapter in earlier parliaments—for three parliaments had been held in the interim by the bishop of Meath —and that the influence of Kildare was exerted on behalf of the archbishop.144 But the very fact that the royal prerogative to direct the repeal of a statute was exercised at the request of a subject in a personal matter indicates how ample was the control claimed by the Crown. The same point is enforced by one of the charges brought against the earl of Kildare by the earl of Ormond early in the reign of Henry VII. Ormond alleged that, after he had been restored to all the inheritance of his father and brother (in 1477), 145 an Irish statute had been enacted under which lands that had formerly been forfeited and subsequently restored were resumed by the Crown: 148 in this way he lost his land by reason of his father's attainder. "Whereupon King Edward 140

Statutes, 12-22 Edward IV, pp. 196-202. " I Ibid., p. 596. 142 The bishop is described as deputy lieutenant on 15 July 1475 ( Cat. Patent RoUs, 1467-1477, p. 592). Since, however, the first parliament he summoned met on 2 1 July 1475 (Statutes, 12-22 Edward TV, p. 252), he must have issued writs early in June. 143 Ibid., p. 594. 144 He is found in Kildare's company in February 1479, about to cross over to England (above, p. 265). 148 Cal. Patera Rolls, 1476-1485, p. 53. 14« The act intended is presumably that passed at the Dublin parliament that met on 10 December 1479: the earl of Kildare, as deputy lieutenant, was empowered to make provisos in favor of persons not specified in the principal act (Statutes, 12-22 Edward IV, pp. 684-94, 732).

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directed his commandments unto the said earl of Kildare, under his privy seal, to reverse the same resumption by another act of parliament.' A bill, Ormond asserted, passed the lords and commons, but the deputy lieutenant withheld his assent, contrary to the king's command. Kildare, in his answer, protested that he had received no such privyseal letter. Moreover, he denied that an act of resumption had been passed, such as was alleged, so that, even if the privy-seal letter had been received, the king's instructions could not have been carried out and if a bill had been passed by the lords and commons in pursuance of the instructions, this bill could not have been approved. 147 If Ormond was misinformed on points of detail, Kildare was evasive, for there had been an act of resumption in December 1479 and in April 1481 Edward IV had sent a privy-seal letter to secure Ormond's exemption. 148 But, whatever may have been the rights or wrongs of the dispute, the outstanding fact is that both disputants accepted without question the king's right to give directions that a statute should be passed in the Irish parliament, and that deputy lieutenant, lords, and commons would all act upon these directions. 147 148

C. 49/53/5. Below, p. 276, n. 41.

17 P O Y N I N G S ' LAW

T

O SAY that Tudor policy was a continuation of Yorkist policy is to speak truly, but we must not imagine that either Edward IV or Henry VII had any deliberately elaborated and far-reaching plans for governing Ireland. Rather they attempted to solve problems as they arose, guided by much the same ideas, which were the current ideas of rulers of their age, owing a great deal to the ideas of the past and notably in all that concerned kingship and the duties of loyal subjects. If they were fortunate in that the ruinous century-old war with France was a thing of the past, which they had no serious intention of reviving, and if they were both masters of England, both ruled by a doubtful title and both had restricted resources. Their hands were not free enough, their purses not deep enough, to rule Ireland as well as they wished, but they wished to rule well. In employing Kildare to rule Ireland for him Henry was consciously following Edward's footsteps. "The king,' he said, 'shall as benignly, tenderly and largely take him into the favour of his grace as ever did King Edward IV.' 1 And when Henry sent for the earl to come to him in 1490, it was to "have plenary communication with him in all such things as might concern the weal of Ireland and that the king's subjects of the same may be reduced to a good and lawful order and obedience, to the pleasure of God and the weal and profit of the same land.'2 Kildare, however, who was slow to learn the wisdom of loyal service to Henry, could not well be the chosen instrument for accomplishing the king's purpose. That purpose had matured as he increasingly realized that want of governance in Ireland meant insecurity to his throne and that, unless the whole land was brought under subjection, the task was hardly begun. And so, as he said in his instructions to his ambassador to the king of France, he had resolved to bring order into his land of Ireland, among those that are called wild Irish, to the end that they might henceforth live under good rule and justice. He explained that, with this intention, he was sending a good and sufficient army, accompanied by persons of disGairdner, Letters and Papers of Richard IV and Henry VII, i. 92. Ibid., i. 378, 380: w e have put the message into the third person. For the date, see C o n w a y , Henry VII's relations with Scotland and Ireland, p. 48; Bryan, Great Earl of Kildare, pp. 278-82. 1

2

269

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tinction both in warfare and in law. 3 It was not necessary that Henry should also tell the French king that he had resolved that Irish revenues should, as far as possible, pay the cost of Irish government. In this, too, he was following where Edward IV had led. When Edward was renewing Kildare's appointment as deputy in 1480, he had undertaken to provide finance from England only if the earl failed to make the Irish revenue go far enough and, even so, his assistance was limited to £600, the cost of maintaining the small force of eighty archers and forty horse.4 The contrast with the numbers maintained at the king's cost earlier in the century is striking.5 Henry VII, following the same line as Edward, instructed John Estrete to tell Kildare, in his negotiations in i486, to bring to the king an accurate statement of the Irish revenue and the fixed charges upon it: if then there was a balance of CO

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