Sir John Davies was Attorney General for Ireland and made Serjeant at Law in 1607. He was later elected MP for Fermanagh and after some serious political disputes became Speaker of the Irish Parliament in 1612. He returned to England in 1616 and was MP for Newcastle under Lyme in 1620 and thought to be the likely Chief Justice of England but died in 1626 before he could be appointed to that post. The letter contains a quite brilliant dissertation against Brehon Law and the reasons why the King owned the land and had the right to to redistribute it in the Plantation.

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.

t 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 ouht 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 wvere 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 1,aw; 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 villtges, 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 ivhereof 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 :

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 i6io.

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