fine fairly incurred, to the unrelenting infliction of the full measure of punishment for crimes committed, or to the confiscation of property duly forfeited; but it is a miserable departure from historical justice, to apply it, as in the present instance, to an act of absolute regal robbery; for the dispossession of persons whose families had undisputed possession for centuries, on such grounds as Leland states, is undoubted robbery. What would be said of the historian who should descant on the "apparent severity" of Blackbeard or Morgan, the pirates, in their attacks on the defenceless inhabitants of Lima or Cuzco, or the "apparent severity" of William III. in the massacre of Glenco, or the persecution and ruin of the ill-fated Scotch colony at Darien ?

Before the poor plundered people were expelled from their homes and farms, and turned adrift on the world, they made a legal effort to prove the wickedness and injustice of the procedure; "to maintain," in the language of Sir John Davies, "that they had estates of inheritance in their possessions, which their chief could not forfeit." Sir John, the attorney-general, pleaded against their claims; and has fortunately left on record his speech on the subject, which

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"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 estates of inheritance, which the poor natives of Fermanagh and Tyrconnel could not speak of; although these men had no

exhibits a most extraordinary specimen of chicane and quibble, that would have better become

other nor better estate than they; that is, only a scambling 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 Sessions-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'Rilie's country, are all holden of the king: and because the

an Old Bailey pettifogging attorney, than such a high and responsible officer of the crown. He

captainship or chiefrey of O'Rilie is abolished by act of Parliament, by stat. 2. of Elizabeth; and also because two of the chief lords elected by the country have 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 the 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 ever descend to a certain heir; therefore they have no estate of inheritance.

"Their chiefries were ever carried in a course of tannistry, 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 tannist 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.

"1. They never esteemed lawful matrimony, to the end that they might have lawful heirs.

sought to convince them, that "his majesty was the most just prince living, and would not

"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 and 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 shewing a title, no men can be admitted to traverse an office.

"Thus then it appears, that as well by the Irish custom as the law of England, his majesty may, at his pleasure, seize those 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" [without plundering them of their estates] "but by this mixed plantation of civil men, which likewise could not be without removal and transplantation of some of the natives, and settling 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 hundreds 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" [reduce the right owners to beggary,

dispossess the meanest of his subjects wrongfully, to gain many such kingdoms." This was a very

and] "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 lands doth now lie waste; by reason whereof that which is inhabited 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,)" [yet a large portion of them were transported to the wild wastes in Connaught and Munster,]" and that all the land shall be fully stocked and manured, five hundred acres will be of better value than five thousand 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 portion allotted unto them, which they and their children after them, shall enjoy with security.

"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 these four years past, the Græmes were removed from the borders of Scotland to this kingdom, and had not one foot of land allotted to them here: but these natives of Cavan have competent portions of land assigned to 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."212

212 Davies, 276.