My MOST HONOURABLE GOOD LORD:-
THOUGH I perform this duty of
advertising your Lordship how we proceed in the plantation
of Ulster very late, yet cannot I accuse myself either of
sloth or forgetfulness in that behalf; but my true excuse
is the slow despatch of Sir Oliver Lambert from hence,
into whose hands I thought to have given these letters
more than a month since.
In the perambulation which we made this
summer over the escheated counties in Ulster we performed
four principal points of our commission.
1. First, the land assigned to the
natives we distributed among the natives in different
quantities and, portions, according to their different
qualities and deserts.
2. Next, we made the like distribution
of the lands allotted to the servitors.
3. Thirdly, we published by
proclamation in each county what lands were granted to
British undertakers, and what to servitors, and what to
natives; to the end that the natives should remove from
the precincts allotted to the Britons, whereupon a clear
plantation is to be made of English and Scottish without
Irish, and to settle upon the lands assigned to natives and
servitors, where there shall be a mixed plantation of
English and Irish together.
4. Lastly, to the British undertakers,
who are for the most part come over, we gave seizin and
possession of their several portions, and assigned them
timber for their several buildings.
We began at the Cavan, where, as it
falleth out in all matters of importance, we found the
first access and entry into the business the most
difficult. Of our proceeding here my report to your
Lordship shall be the larger, because the best precinct in
this county fell to your Lordship’s lot to be disposed;
and the undertakers thereof do still expect to be by your
Lordship countenanced and protected. The inhabitants of
this country do border upon the English Pale, where they
have many acquaintances and alliances; by means whereof
they have learned to talk of a freehold and of estates of
inheritance, which the poor natives of Fermanagh and
Tyrconnel could not speak of, although these men had no
other nor better estate than they; that is, only a
scrambling and transitory possession at the pleasure of
the chief of every sept.
When the proclamation was published
touching their removal which was done in the public
session-house, the Lord Deputy and Commissioners being
present), a lawyer of the Pale retained by them did
endeavour to maintain that they had estates of inheritance
in their possessions which their chief lords could not
forfeit, and therefore, in their name, desired two things
: first, that they might be admitted to traverse the
offices which had been found of those lands; secondly,
that they might have the benefit of a proclamation made
about five years since, whereby the persons, lands, and
goods of all His Majesty’s subjects were taken into his
royal protection.
To this the King’s Attorney, being,
commanded by the Lord Deputy, made answer, that he was
glad that this occasion was offered of declaring and
setting forth His Majesty’s just title, as well for His
Majesty’s honour (who, being the most just Prince living,
would not dispossess the meanest of his subjects
wrongfully to gain many such kingdoms) as for the
satisfaction of the natives themselves and of all the
world; for His Majesty’s right, it shall appear, said he,
that His Majesty may and ought to dispose of these lands
in such manner as he hath done, and is about to do, in
law, in conscience, and in honour.
In law; whether the case be to be ruled
by our law of England which is in force, or by their own
Brehon Law, which is abolished and adjudged no law, but a
lewd custom.
It is our rule in our law that the King
is Lord Paramount of all the land in the kingdom, and that
all his subjects hold their possessions of him, mediate or
immediate.
It is another rule of our law that where
the tenant’s estate doth fail and determine, the lord of
whom the land is holden may enter and dispose thereof at
his pleasure.
Then those lands in the county of
Cavan, which was O’Reilly’s country, are all holden of the
King; and because the captainship or chiefry of O’Reilly
is abolished by Act of Parliament by Statute second of
Elizabeth, and also because two of the chief lords elected
by the country hive been lately slain in rebellion, which
is an attainder in law, these lands are holden immediately
of His Majesty.
If, then, the King’s Majesty be
immediate chief lord of these lands, let us see what
estates the tenants or possessors have by thne rules of
the Common Law of England.
Either they have an estate of
inheritance or a lesser estate. A lesser estate they do
not claim ; or if they did, they ought to show the
creation thereof, which they cannot do.
If they have an estate of inheritance
their lands ought to descend to a certain heir; but neither
their chiefries nor their tenancies did ever descend to a
certain heir; therefore they have no estate of
inheritance.
Their chiefries were ever carried in a
course of tanistry to the eldest and strongest of the sept,
who held the same during life if he were not ejected by a
stronger.
This estate of the chieftain or tanist
hath been lately adjudged no estate in law, but only a
transitory and scambling possession.
Their inferior tenancies did run in
another course, like the old gavelkind in Wales, where the
bastards had their portions as well as the legitimate
;which portion they held not in perpetuity, but the chief
of the sept did once in two or three years shuffle and
change their possessions by new partitions and divisions;
which made their estates so uncertain as that, by opinion
of all the judges in this kingdom, this pretended custom
of gavelkind is adjudged and declared void in law.
And as these men had no certain estates
of inheritance, so did they never till now claim any such
estate, nor conceive that their lawful heirs should
inherit the land which they possessed, which is manifest
by two arguments :(i) They never esteemed lawful
matrimony, to the end they might have lawful heirs ; (2)
they never did build any houses, nor plant orchards or
gardens, nor take any care of their posterities. If these
men had no estates in law, either in their mean chiefries
or in their inferior tenancies, it followeth that if His
Majesty, who is the undoubted Lord Paramount, do seize ind
dispose these lands, they can make no title against His
Majesty or his patentees, and consequently cannot be
admitted to traverse any office of those lands ; for
without showing. a title no man can be admitted to
traverse an office.
Then have they no estates by the rules
of the Common Law; for the Brehon Law, if it were a law
in force and not an unreasonable custom, is abolished; yet
even by that Irish custom, His Majesty, having the supreme
chiefry, may dispose the profits of all the lands at his
pleasure, and consequently the land itself; for the land
and the profit of the land are all one. For he that was
O’Reilly, or chieftain of the country, had power to cut
upon all the inhabitants, high or low, as pleased him;
which argues they held their lands of the chief lord in
villeinage, and therefore they are properly called natives
; for nativus in our old register or writs doth
signify a villein; and the writ to recover a villein is
entitled De nativo habendo; and in that action the
plaintiff doth declare that he and his ancestors, time out
of mind, were wont tallier haut et bas upon the
villein and his ancestors; and thence comes the phrase of
cutting [ Cutting is an English form of tallage, a tax on
tenants towards public expenses ], used among the Irish at
this day.
Thus, then, it appears that, as well by
the Irish custom as the law of England, His Majesty may,
at his pleasure, seize these lands and dispose thereof The
only scruple which remains consists in this point, whether
the King may, in conscience or honour, remove the ancient
tenants and bring in strangers among them.
Truly, His Majesty may not only take
this course lawfully, but is bound in conscience so to do.
For, being the undoubted rightful King
of this realm, so as the people and land are committed by
the Divine Majesty to his charge and government, His
Majesty is bound in conscience to use all lawful and just
courses to reduce his people from barbarism to civility;
the neglect whereof heretofore hath been laid as an
imputation upon the Crown of England. Now civility cannot
possibly be planted among them but by this mixed
plantation of civil men, which likewise could not be
without removal and transplantation of some of the natives
and settling of their possessions in a course of Common
law; for if themselves were suffered to possess the whole
country, as their septs have done for many. hundred of
years past, they would never, to the end of the world,
build houses, make townships or villages, or manure or
improve the land as it ought to be; therefore it stands
neither with Christian policy nor. conscience to suffer so
good and fruitful a country to lie waste like a
wilderness, when His Majesty may lawfully dispose it to
such persons as will make a civil plantation thereupon.
Again, His Majesty may take this course
in conscience, because it tendeth to the good of the
inhabitants many ways; for half their land doth now lie
waste, by reason whereof that which is habited is not
improved to half the value ; but when the undertakers are
planted among them, there being place and scope enough
both for them and for the natives, and that all the land
shall be fully stocked and manured, 5oo acres will be of
better value than 5000 are now. Besides, where before their
estates were altogether uncertain and transitory, so as
their heirs did never inherit, they shall now have certain
estates of inheritance, the portions allotted unto
them, which they, and their children after them, shall
enjoy with security.
Again, His Majesty’s conscience may be
satisfied, in that his Majesty seeks not his own profit,
but doth suffer loss by this plantation, as well in
expense of his treasure as in the diminution of his
revenue; for the entertainment of Commissioners here and
in England, and the extraordinary charge of the army for
the guard of the Lord Deputy and Council in several
journeys made into Ulster about this business only, hath
drawn no small sum of money out of His Majesty’s coffers
within these three years ; and ‘whereas Tyrone did the
last year yield unto His Majesty $2000, for four years to
come it will yield nothing; and afterwards the fee-farm of
the undertakers will not amount to £600 per annum.
Again, when a project was made for the
division of that country about twenty years since, Sir
John O’Reilly being then, chief lord and captain, they all
agreed, before divers Commissioners sent from the State to
settle that country, that Sir John O’Reilly should have
two entire baronies in demesne, and ten, shillings out of
every poll in the other five baronies; which is much more
than His Majesty, who hath title to all the land in
demesne as well as to the chiefry, hath now given to
undertakers or reserved to himself.
Lastly, this transplantation of the
natives is made by His Majesty rather like a father than
like a lord or monarch. The Romans transplanted whole
nations out of Germany into France; the Spaniards lately
removed all the Moors out of Grenada into Barbary, without
providing. them any new seats there. . When the English
Pale was first planted all the natives were clearly
expelled, so as not one Irish family had so much as an
acre of freehold in all the five counties of the Pale; and
now, within those four years past, the Graemes were
removed from the borders of Scotland to this kingdom, and
had not one foot of land allotted unto them here ; but
these natives of Cavan have competent portions of land
assigned unto them, many of them in the same barony where
they dwelt before, and such as .are removed are planted in
the same county, so as His Majesty doth in this imitate
the skilful husbandman, who doth remove his fruit-trees,
not with a purpose to extirpate and destroy them, but that
they may bring better and sweeter fruit after the
transplantation.
Those and other arguments were used by
the attorney to prove hat His Majesty might justly dispose
of those lands both in law, in conscience, and in honour;
wherewith the natives seemed not unsatisfied in reason,
though they remained in their passions discontented, being
much grieved to letave their possessions to strangers,
which they had so long after their manner enjoyed.
Howbeit, my Lord Deputy did so mix threats with entreaty,
Precibusque minas regaliter addit, as they promised
to give way to the undertakers, if the sheriff, by warrant
of the Commissioners, did put them in possession, which
they have performed like obedient and loyal subjects.
Howbeit, we do yet doubt that some of them will appeal
unto England, and therefore I have presumed to trouble
your Lordship with this rude discourse at large, that your
Lordship may understand upon what grounds we have
proceeded, especially in that county where your Lordships
precinct doth lie.
The eyes of all the natives in Ulster
were turned upon this county. Therefore, when they saw the
difficulty of the business overcome here, their minds were
the better prepared to submit themselves to the course
prescribed by His Majesty for the plantation; and the
service was afterwards performed in the rest of the
counties with less contradictions. The British undertakers
are preparing their materials for the erection of their
buildings the next spring; the servitors and natives are
taking out their Letters Patent with as much expedition as
is possible.
The agents for London have made better
preparation for the erection of their new city at
Coleraine than expected; for we found there such store of
timber and other materials brought in places, and such a
number of workmen so busy in several places about their
several tasks, as methought I saw Dido’s colony erecting
of Carthage in Virgil :
Instante ardentes, Tyrii: pars ducere
muros,
Molirique arcem, et manibus subvolvere
saxa:
Pars optare locum tecto, et concludere
sulco.
Fervet opus, &c
Thus, craving pardon, and presenting my
humble service to your Lordship, I leave the same to the
Divine preservation, and continue your Lordship’s in all humble
duties,
JO. DAVIES.
DUBLIN, 8th November 161o.
POSTSCRIPT.
This worthy servitor, Sir Oliver
Lambert, is like to prove a good planter in the county of
Cavan; whereof he hath made better proof than any man of
our nation, having at his own charge voluntarily made a
singularly good plantation in the wild and most dangerous
places in Leinster, more for the Commonwealth than his own
profit.
