ciently noticing the second. That the greater barons would object to a constitution, the effect of which should soon be to set bounds to encroachment, usurpation, and arbitrary violence, is natural and not to be either defended or denied. Had there been no record, it might be inferred from the common analogy of human conduct; but though there were those who would have withheld justice, it by no means is to be inferred that the measure required was politic, prudent, or such as to ensure the object proposed. We need not enter upon the nice question, as to the possibility of governing any people in any state, by any constitution whatever; for such is the absurdity of the assumption. The operation of law must be essentially modified by the habits of a nation; for on the degree of its conformity with these, must depend the question how far it is a system of freedom or constraint. The law which is a security to the industrious, peaceable, and honest, must be a severe oppression, however necessary, to the riotous, the idle, and the dishonest. But if two races, oppositely distinguished by these respective qualities—an extreme case, which we assume for illustration should chance to be combined under the same constitution, the difficulty must be much enhanced; the effect must be, to a certain extent, the same as the insane and rash measure of attempting to quiet a country in a state of insurrection, by depriving the respectable and orderly of their means of resistance, and leaving the disaffected without control-a dastardly policy too often resorted to by public administrations. The Irish were at that time, and it implies no reproach, not to be governed by English laws, and only to be restrained by the retort of arms and the sense of their own personal safety. A law of equal justice would in the state of the country have been just barely efficient to control the industrious, the timid, and the weak, with a superfluous constraint; it would have had no effect upon the demeanour of the natives, unless so far as it was their safety and convenience, and would have been quickly converted into the stalking-horse of robbery and sedition. The duty of the English government, which was first to protect the settlement, would thus have, to some extent, deprived it of its own protection; as the law designed to protect Irish life and property against English aggression, would have been by no means reciprocal. Having expressed these doubts, we have as little hesitation in concurring with the generality of historians, in imputing the resistance made to this extension of English law to the iniquitous ambition of the barons. The Irish chiefs had, in their first cession to the English crown, made it an express stipulation that they were to retain the ancient laws and customs of the country. But in this respect experience changed the view of such of the Irish as inhabited the borders of the pale; and we may admit that those who sought the protection of the English law were, many of them, governed by the most wise and allowable policy. In the reign of Henry III. it was frequent for the most peaceable and civilized among the native chiefs to sue for and obtain a patent, specially securing to the applicant the rights of an English subject. These grants were numerous, as can be ascertained by their records. The reader of Irish history, whenever such questions recur, will do well to call to mind that the Irish, in actual contact with the settlement, were comparatively but a

small proportion. The inequalities of jurisdiction, in a small settlement thus surrounded by an Alsation sanctuary for outrage of all kinds, would be quite inconsistent with the lowest civil order.

At the same period, the disorders of the Irish barons were so great, their interests so complicated together, and their conduct therefore so little to be depended on, that king Henry adopted the plan of sending over governors, unconnected with the country and its settlers, who might thus be expected to act with independence of local and partial influences and interest, and to consult only the good of the country, and the will of the king. Of these, the names follow each other in brief and quick succession, indicating thus, says Leland, "distraction in English councils, as well as an irregular and disordered state of things in Ireland."*

Among the Irish chiefs whose names prominently recur in this time, the warlike race of Macarthy is conspicuous. Irritated by the pressure of the Geraldines in the south, they took arms, and gained a decisive victory, in which many of this English family were slain. In the course of this war they affected to be at peace with the English government; and at the very time of this victory, received a new deputy, who landed on their coast, with all marks of respect, and allowed him to proceed peaceably to his government. Elated with their success, they proceeded to further hostilities, and attacked some Irish septs which had incurred their hostility. In the course of these steps they were brought into collision with the real or supposed rights of De Burgo. He took arms against them; and, meeting them in the field, gave them a defeat which scattered their power. In this their leader was slain; and it was followed up by an inroad into their country, in which he spread devastation, and compelled them to submit and give hostages for the observance of the conqueror's conditions. By this event, the Geraldines were once more enabled to lift up their heads; but De Burgo, whose interests were those of a rival, did not quietly acquiesce in this consequence, and a long and sanguinary feud ensued. In the course of this, De Burgo obtained an advantage from the lawless violence of his opponents. The Geraldines, resenting the supposed partiality of the lord deputy's interference, seized his person, and sent him, with a son of De Burgo and others, prisoner to one of their castles. This act drew down upon them a more combined and formidable power, and gave to De Burgo's violence a lawful character. But the ambition and the violence of these powerful barons knew no prudence or moderation. De Burgo pushed his advantages in Connaught, until he roused the resentment of Aedh O'Conor, the successor of Feidlim, who rose in arms and gave him a signal defeat. His death followed soon after, in 1271, at his castle in Galway.†

Earl of Kildare.

DIED A. D. 1316.

JOHN, the eldest son of Thomas Fitz-Gerald, lord Ophaly, was the first earl of Kildare. The most remarkable event in which he is directly concerned, is the dispute with Vesey, the lord justice, which ended in a large accession to his possessions, and ultimately in his promotion to the title. Though the circumstances of this quarrel are by no means of historical importance, yet Cox's narration of them is for many reasons interesting; we shall therefore extract some of the very quaint and amusing speeches which this writer has put into the mouths of the contending parties.

6

"The lord justice," writes Cox, "hearing many complaints of the oppressions the country daily received, which he thought reflected on him, and insinuated his maleadministration, therefore to disburthen and excuse himself, he began, in misty speeches, to lay the fault on the lord John Fitzgerald's shoulders, saying (in parable wise) that he was a great occasion of these disorders, in that he bare himself in private quarrels as fierce as a lyon, but in these public injuries as meek as a lamb. The baron of Ophaly, spelling and putting these syllables together, spake after this manner:

"My lord, I am heartily sorry, that among all this noble assembly you make me your only butt, whereat you shoot your bolt; and truly were my deserts so hainous, as I suppose you wish them to be, you would not cloud your talk with such dark riddles, as at this present you have done; but with plain and flat English, your lordship would not stick to impeach me of felony or treason; for as mine ancestors with spending of their blood in their sovereign's quarrel, aspired to this type of honour, in which at this day (God and my king be thanked) I stand; so your lordship, taking the nigher way to the wood, by charging me with treason, would gladly trip so roundly on my top, that by shedding of my blood, and by catching my lands into your clutches, that butt so near upon your mannors of Kildare and Rathingham, as I dare say are an eyesore unto you, you might make my master, your son, a proper gentleman!'

"A gentleman!' quoth the lord justice, thou bold baron, I tell thee the Vescies were gentlemen before the Geraldines were barons of Ophaly; yea, and before that Welch bankrupt, thine ancestor (he meant Sir Maurice Fitz-Gerald), feathered his nest in Leinster. And whereas thou takest the matter so far in snuff, I will teach thee thy syripups after another fashion, than to be thus malapertly cocking and billing with me, that am thy governour. Wherefore, albeit thy taunts are such as might force the patientest philosopher that is, to be choakt with choler, yet I would have thee ponder my speech, as though I delivered it in my most sober and quiet mood. I say to the face of thee, and I will avow what I say unto thee, that thou art a supporter of thieves, a bolsterer of the king's enemies, an upholder of traytors, a murderer of subjects, a firebrand of dissension, a rank thief, an

arrant traytor, and before I eat these words, I will make thee eat a piece of my blade.'

"The baron, bridling with might and main his choler, bare himself as cold in countenance as the lord justice was hot in words, and replied in this wise:

66 6

My Lord, I am very glad that at length you unwrapt yourself out of that net wherein all this while you masked. As for mine ancestor (whom you term bankrupt), how rich or how poor he was, upon his repair to Ireland, I purpose not at this time to debate; yet thus much I may boldly say, that he came hither as a buyer, not as a beggarhe bought the enemies' land by spending his blood. But you, lurking like a spider in his cobweb to entrap flies, endeavour to beg subjects' livings wrongfully, by despoiling them of their innocent lives. And you charge me with malapertness, in that I presume to chop logic with you, being governour, by answering your snappish quid with a knappish quo. I would wish you to understand (now that you put me in mind of the distinction), that I, as a subject, honour your royal authority, but as a nobleman I despise your dunghill gentility. Lastly, whereas you charge me with the odious terms of traytor, murtherer, and the like, and therewithal you wish me to resolve myself, that you rest upon reason, not upon rage; if these words proceed from your lordship as a magistrate, I am a subject to be tried by order of law, and am sorry that the governour, who ought, by vertue of his publick authority, to be my judge, is, by reason of private malice, become

mine accuser.

"But if you utter these speeches as a private person, then I, John Fitzgerald, baron of Ophaly, do tell thee, William Vescie, a singesole gentlemen, that I am no traytor, no felon; and that thou art the only buttress by which the king's enemies are supported; the mean and instrument by which his majesties subjects are daily spoiled; therefore, I, as a loyal subject, say traytor to thy teeth; and that shalt thou well understand when we both shall be brought to the rehearsal of these matters before our betters. Howbeit, during the time you bear office, I am resolved to give you the mastery in words, and to suffer you, like a brawling cur, to bark; but when I see my time, I will be sure to bite.''

After these "biting speeches" had passed, and a considerable ferment was raised on both sides, lord Ophaly came to the determination to bring the quarrel before the king, and went to England for this purpose, whither he was quickly followed by Vesey. Lodge, with more probability, represents them both as having been summoned by the king. The king now fixed a day for the hearing of their quarrel. They met before the council. Being placed on their knees before the throne, Vesey was commanded to begin. He accused his enemy of being the main cause of all the troubles in Ireland; for such he observed was his authority with the Irish, that all their actions were governed by his will. He attributed the numerous depredations which were daily committed to his secret suggestion or command; accused him of attending at disaffected and seditious meetings, and of encouraging rebellion, and then exclaiming against the governor himself for not preserving order. He then complained of the insult

ing and outrageous language which he offered in answer to his own peaceable and moderate rebukes for such conduct; and concluded by pledging himself in a few days to bring forward and prove charges of the utmost criminality against him.

Lord Ophaly listened with cool and scornful intrepidity to these vague charges, and when his accuser had concluded, he "prest himself somewhat forward," to reply. He ridiculed the dilatory conduct of Vesey, in having suffered such accusations to sleep for so many years, and at last having brought them forward in so crude and indefinite a form; so that while he accused him in general terms of being the main cause of all the Irish disorders, he did not specify a single act of disloyalty on his part. As for his menace of treasonable accusations at a future day, he laughed it to scorn, and compared his enemy to the philosopher of antiquity who proposed to teach an ass to speak in seven years, provided he might be allowed to live so long; knowing that within that time, the king, who had menaced his life, or himself, or the ass, would probably die. He himself, he observed, would not, like his adversary, lose his errand on the way, and having come before his majesty forget or retract any thing he had spoken in Ireland. He then accused Vesey of corruption, and of excluding himself and all the best nobility of Ireland from his presence, while "an Irish cow could at all times have access." ""* He significantly alleged that a cow, a horse, a hawk, a silver bell, were the real operating motives of his conduct, and the cause of all the disorders in Ireland; and that the nobility were accused, to cover his own treasonable connivance at rebellions. He appealed to the obvious reason of the case, and observed that no one could be so far imposed upon by representations so evidently opposed to the most notorious facts. That the lord justice, having the royal army and treasure at his command, and all the authorities of the country at his beck, should not be able, if he so willed, to look out "such bare breeched brats as swarm into the English pale."† He concluded this dexterous reply with a challenge, thus reported by Cox: "But so much as our mutual complaints stand upon the one his yea, and the other his nay, and that you would be taken for a champion, and I am known to be no coward, let us in God's name leave lying for varlets, berding for ruffians, facing for crackers, chatting for twatlers, scolding for callets, booking for scriveners, pleading for lawyers; and let us try with the dint of sword as becomes martial men to do, our mutual quarrels. Wherefore, to justifie that I am a true subject, and that thou Vescie art an arch-traytor to God, and to my king, here in presence of his highness, and in the hearing of this honourable assembly, I challenge the combat.' Whereat all the auditory shouted."

The challenge was accepted, the day fixed, and much preparation made for an occasion so much in accordance with the taste and spirit of the time. But the expectation of the court was disappointed: when the day came, Vesey was in France, as Cox quaintly says, "Vescie turning his great boast to small roast, began to cry creak, and secretly sailed into France."