IN the early months of the insurrection the wild and riotous excesses of Sir Phelim’s irregulars had been a terror alike to Catholics and Protestants. The King’s courts were closed; in more than twenty counties no judge, sheriff, or constable any longer exercised authority in the royal name; and the lately restored Catholic bishops, to whom the people now cried for protection, were helpless to redress wrong. They attempted, indeed, to improvise courts of arbitration, but for want of some compelling sanction with a competent power to enforce it, their effort was hopelessly doomed to failure; and the higher clergy, recognizing the impotence of irregular equity, became the leaders of the people in a demand for some governing body strong enough to maintain law and order in the country. Clergy and laity, too, felt the common need for a central authority which in negotiation or treaty with the enemy should evidently carry the whole delegated power of the Irish Catholics in arms.
The first step towards creating a new order was therefore taken by Primate Hugh O’Reilly, who summoned his clergy to an informal council in Armagh. They there declared their opinion that ” no family, city, commonwealth, state, or kingdom may stand without concord”; and strengthened by this declaration the Primate proceeded to summon a general council of the clergy of Ireland to meet at Kells in March, 1642. But if the bishops, as the only organized body now left which could form a rallying point for the energies of Celtic Ireland, were thus forced into the position of leaders, they showed no desire to construct a purely clerical government; on the contrary, the prelates immediately joined with them in counsel the only other classes in the country who were definitely marked out from the masses of the people, and in alliance with them sought to propound a constitution acceptable to all alike. In full council assembled at Kells, the clergy first resolved that the Lords of the Pale should be taken into consultation. The Lords, who had with much difficulty restored discipline in Leinster and brought their troops under the direct control of a “Council of Generals” consisting of Leinster peers, with the venerable Lord Mountgarrett as president, and who had thus formed a sort of nucleus for a governing body, eagerly welcomed the invitation of the bishops. Great Catholic lawyers deeply trained in all questions of constitutional government were called in to help in the deliberations. Bishops, lords, and lawyers accordingly proceeded to draw up for the distracted land a constitution by which the government of civil and military affairs should be settled on a firm and enduring foundation. The task was not an easy one, for in every country these three classes include the conservative forces, and an assembly thus compounded was not likely to evolve any of the tremendously simple forms of government dear to ordinary revolutionists.
To Darcy and Cusack, as the ablest lawyers among them, the drafting of the new constitution was wisely entrusted by the assembled council; but to Darcy substantially belongs the credit as well as the responsibility of this great effort of constructive statesmanship. The only scheme of government familiar to Darcy was of course the Government in Dublin with a Parliament and an irresponsible executive. To him, as to most educated Irishmen of the time. Parliament was the natural embodiment of the national will. At no time had the Upper House been obnoxious to the Irish people (save in so far as it was dominated by the intruded Protestant prelates) for the lay lords were the proper permanent leaders of the various provinces, and being either descendants of Celtic chiefs or Anglo-Norman nobles, their authority in their own sphere was willingly accepted by their followers. To discover the first order in the new state, Darcy had, therefore, but to replace the Protestant prelates by the Catholic bishops and mitred abbots, and to join with them the Catholic lay lords who had sat in the Dublin Parliament. These lords, with the exception of Lords Clanricarde and Westmeath, had joined the Ancient Irish, and having taken the “national oath” drawn up by Roger O’Moore were marked out by rank and lineage, as well as by popular consent, as the natural leaders of the Irish Catholics; lords and prelates therefore were held as before entitled to seats in the first order of the projected National Council. More difficulty was felt when it came to the question of popular representation. Here the only model of any value was the great Parliament of 1613, which, cleared of corruption, offered an excellent basis for representative government. Darcy accepted it but instead of imaginary boroughs he looked to real existing cities and towns, and from these and the counties 226 representatives were to be drawn. Instead of slavishly following the Dublin model in every respect, however, he proposed, while maintaining the two ancient Orders of Lords and Commons, to unite them in one house, with no difference between them save the ceremonial difference of honour and precedence. This much of the Dublin plan however was retained; that, whereas the Lords in Dublin communicated their views to the Commons through the judges, the first order of the new Assembly was allowed the right to consult in private, and make known the result of their deliberations through some judicial officer, usually through Darcy.
So far, with unimportant modifications, the makers of the constitution follow old models. Their originality, however, was brought into play when they came to deal with the executive. At a time when in no country in the world, whether monarchy or republic, had rulers or people conceived the idea of a responsible representative executive, still less of an elected one, this great principle was embodied in the new Irish constitution. Twenty-four supreme councillors were to compose the Irish cabinet. The members of the General Assembly representing each province were out of their own number to elect by ballot six councillors or, as they are sometimes called, magistrates. They might be all bishops, all lay lords, or all commoners, or, as invariably happened, a compound of all three, such as we find in the first Supreme Council, to which were elected three Archbishops, two bishops, four peers, and fifteen lay commoners. Nine members at least were required to validate any administrative act; and of these it was necessary that six at least should give their assent, and sign every decree or order, thus ensuring the personal responsibility of ministers in the clearest manner. To the council sovereign power was temporarily delegated. But all its acts were liable to be reviewed by the General Assembly, which was to meet at least once in every year. Each province was to have its Provincial Council on the same plan, and each county its County Council; the wider the space over which jurisdiction extended the higher naturally was the jurisdiction itself, and in every grade appeals lay from the inferior to the superior till the ultimate and highest court, the Supreme Council itself was reached. In contemplation of law, the whole system of government was thus conceived as a system of concentric circles, having for their common middle point the Supreme Council, which like the king in previous times was the source and fountain of all authority, military and civil.
This Model of Government was adopted by the general meeting of clergy, peers, and lawyers which assembled at Kilkenny in May, and a temporary Supreme Council was chosen to act as a Provisional Government, and to issue writs to the constituencies for the return of members to meet in the following October, on the first anniversary of the Ulster rising. The country, in so far as it was articulate at least, acquiesced in the proposed basis of government. Owen Roe O’Neill readily assented, for to him any system of ordered rule was better than confusion and anarchy. Nor did he feel any objection whatever to the creation of a power by which his own conduct was to be controlled; for although the national rising had been inspired and directed by the heart and brain of Owen O’Neill, that great man looked upon himself, upon any soldier, as an instrument in the hand of the State or nation which he served, and by the highest loyalty forbidden to resist the form in which sovereignty is cast by the people in solemn and deliberate judgment. Personally, moreover, he had no desire to criticize the prominent part played in the new movement by the priests. In the Spanish dominions he had grown familiar with a spectacle which had not yet shocked the ecclesiastical conscience or alarmed the civil administrator — the spectacle of great churchmen administering justice, governing States, commanding armies and navies; few of his own counsellors were so valuable to him as Primate O’Reilly, the originator of the Assembly; above all, a deeply religious man himself, spiritual sanctions seemed to him powerful auxiliaries to human law. O’Neill therefore willingly obeyed, and all Ulster did as he did. And so the first popular Constitution for Celtic Ireland was issued and accepted without one murmur of disapproval.
There can be no doubt as to the singular merits of the new scheme and the breadth of mind shown by its provisions. But dangers lurked in the whole plan, some inherent in the very system itself, some accidental and external. All elective responsible forms of government are less fitted for war than for peace, and the famous Confederation, with its minute and complex machinery, was in fact only suited for a reign of order in a settled kingdom. But there were other perils no less grave. In the anxiety of the authors of this Constitution to respect local feeling, they unconsciously set up barriers between province and province, and fatally strengthened the old danger of halting policy and disjointed action. What Ireland needed was a National Union, not a Catholic Confederation. But the Lords of the Pale would on no account consent to any closer tie than that of alliance between themselves and the men of Ulster, and they insisted on having religion put in the forefront as the motive and purpose of their appeal to arms. Any attempt to form a wider basis would have been immediately defeated by the lay peers; and in that time of danger the full price had to be paid for the adhesion of the Leinster Lords. And so a confederacy of Catholics, and not a union of Irishmen, was announced and sanctioned — a policy which, while it had many attractions for timid men, perpetuated old lines of difference, and the painful sight was seen of an exclusively Protestant Parliament in Dublin confronted by an exclusively Catholic Assembly in Kilkenny.
Besides these two organic evils inherent in the constitution, there were others which were accidental and superinduced. The choice of Kilkenny as the seat of government was in itself disastrous, and yet no choice could seem more promising. Kilkenny was the natural metropolis of the Catholic lords of Leinster. A little outside the walls stood the residence of Lord Mountgarrett, the greatly respected president of the Council of Generals, “the chief of those in the associated counties and the remoter counties of Cork and Limerick, which the extirpation of the Catholic religion and the enslaving of the nation by a foreign power equally concerned;” now verging on his seventieth year, the son-in-law of the great Hugh O’Neill, Mountgarrett claimed by age, station, and public services the willing allegiance of the Confederates. Unfortunately, however, Kilkenny was overshadowed by the Ormond influence. It would indeed be impossible to blame the framers of the constitution for seeing no danger in that fact, Ormond was bound by many ties to the Irish Catholic cause. His brother Richard was a colonel in the army of the Confederate Catholics; his two sisters were nuns; Lord Mountgarrett was his uncle, and Lord Muskerry his brother-in-law. The choice of his city as the meeting-place of the Assembly might well seem both prudent and inevitable, and only subsequent events could bring the lurking peril to light. But for mere geographical reasons alone Kilkenny was wholly unfit to be the governing centre in Ireland at that time. Placed within easy reach of all Leinster, of Ormond’s great possessions in the south, and of Clanricarde’s in the west, it might well serve as the capital of central and southern Ireland; but Ulster was far off, and travellers who had to face not only the hardships of a long journey but the risk of falling into the hands of the intercepting armies of Dublin and Drogheda, rather adventured the perils of the sea than the terrors of the land; and Ulster was practically disfranchised. It followed from this that there were in course of time two political centres of gravity in Ireland: the council-room of the Kilkenny cabinet, and the tent of Owen Roe O’Neill. Had there been complete agreement in policy this might not have mattered much, but there was no such agreement. Those who circled round Kilkenny — bishops, peers, and lawyers— looked only for Catholic emancipation; religious, agrarian, tribal, and national claims united the men of the north. To use modern words the Leinster Confederates were Whigs, the men of Ulster were Nationalists. Between such diverse elements union could not be. Possibly wise and moderate administration might have lessened the points of difference, but weakly yielding to that fatal tendency which we find too often in every era of Irish history, those who held power would permit no criticism of their conduct, and in the name of union drove out all who did not fully accept their views.
All the members of the Supreme Council save those from Ulster were Ormond’s friends; and as the Ulster members rarely attended, the “Ormondian faction” quickly gained supreme control. Those who resided permanently in Kilkenny managed affairs; and of these there were four of special importance. In the circle of sycophants that surrounded Lord Clanricarde, Darcy and Cusack were by far the most conspicuous. Although Cusack held the high offices of Chancellor of the Exchequer and Attorney-General in Kilkenny we have, apart from the general opinion of his contemporaries, no definite proof of his claims to a place in history. But with Darcy it is far otherwise. He may rank as a constitutional statesman and lawyer with the great founders of the American Constitution, and his claim to the highest legal place cannot be questioned. Lest the title of Lord Chancellor might suggest any encroachment upon the king’s prerogative, it was thought better to allow Darcy while holding an innominate office to exercise all the functions usually associated with the Chancellorship. These two accomplished and learned lawyers were at worst men whose only fault was weakness; but they were unfortunately as clay in the hands of more subtle and designing colleagues, personal friends of Ormond’s. Richard Belling was the Secretary of State to the Supreme Council; by far the most important office in the administration. He was the son of the man who had made up evidence against the Wicklow O’Bymes in Faukland’s time (1626-7). He had literary pretensions, wrote a continuation of the Countess of Pembroke’s Arcadia, and gracefully toying with compliments lamented his insufficiency to reach “Divine Sidney’s” height. Between him and Ormond the closest intimacy was kept up, and most of the Cabinet deliberations at Kilkenny were as well known in Dublin as they were in the Council chamber. Angry men called Belling a traitor; but Owen Roe deprecated such a charge. “Belling is no traitor. Remember an oath is binding only in prose; and as Belling only talks a kind of half-mad rhapsody, he breaks no vow.” Dr. Fennell angered Owen much more. Fennell was one of the tribe of persons always too numerous in Ireland, who are devoured with zeal when there is no risk to be run; who are overflowing with noble sentiments; ready to make all sorts of sacrifice in the indefinite future, but who meantime plunder with both hands. As Ormond’s physician, he gave himself the airs of one who was the friend and adviser in high politics of the great, although he cared little himself, he said, for these things. He was now installed in a profitable office, and his face, weighty with the load of State cares, was to be seen daily as he drove in his open carriage from the residence of “My Lord Mountgarrett,” or “My Lord Muskerry,” to the offices of the Council. Mountgarrett himself being “Lord President,” and Muskerry in command of the Munster troops, the “Ormondian faction” was thus easily dominant in the Kilkenny counsels, even if we acquit Darcy and Cusack of anything more serious than facile acquiescence. Another scandal too common and familiar now unfortunately rose into public notice. The taxes and rates assessed by the Assembly and intended mainly for the support of the Army, were in great part diverted to the use of favourites and friends. Offices and salaries multiplied daily.
“Soon there was a world of clerks and attorneys, commissioners in every county, receivers, and applotters. The exchequer was full with daily taxations, customs monopoly, enemy land custodiums, excise and many more, so that there was a world of money; but the most part or rather all was spent in daily wages of the Supreme Council, judges, clerks and other mechanical men, and little or nothing went to the soldiers.”
The first business of the Council was to carry out the orders of the General Assembly with regard to the subject which had been specially urged by the bishops — the regular administration of justice. Judges were appointed, circuits, assizes, and essoyns;” sheriffs, justices of the peace, and constables were duly commissioned; County Courts, Provincial Courts, and Courts of Appeal were established. The Supreme Councillors themselves were to hear and determine all important questions of criminal and constitutional law, as well as to hear on appeal all questions arising between party and party. One subject alone was reserved. No question involving the title to land was to be decided; de facto possession alone was to be judicially noticed, as the very question of such title was one of the causes of the rising, and could only be finally decided by the issue of the insurrection. In this matter bishops and abbots were alike agreed, although church lands were then in the actual possession of many of the lay lords who sat in the General Assembly. The Great Charter, the common law, and all safeguards of personal liberty were declared to be fundamental rights of all citizens, and the courts were directed without distinction of persons to apply their principles to all suitors whatever.
In the conduct of government, as we have seen, four Councillors practically gained the whole authority; calling in the necessary number for a quorum to ratify their acts, but otherwise ignoring the existence of their colleagues an evil which became but too apparent in course of time, though it would be altogether unjust to hold the authors of the plan of government answerable for the perverted policy of the “Ormondian” clique. The first official acts of the Supreme Council under their guidance were of momentous importance. They reorganised the forces, dismissing from the service most of the commanders who had taken part in the rising of October 23rd; Colonels Hugh McPhelim Byrne, Brian O’Neill, and Rory O’Moore! Then they named the generals for each province, but in their fear of Owen Roe’s commanding influence they nominated no Commander-in-Chief, knowing that none but he could be invested with that great office. This step further deepened and widened the dividing lines between the Ancient Irish and their modern allies, and indeed made Ulster into a foreign country. Still, had the Council allowed the Ancient Irish to run their own course, Ulster, Wicklow, and Connaught might have worked out a common deliverance. This however, was made impossible from the moment when they summoned Owen O’Neill and his chief officers to Kilkenny, and tendered to them the oath of allegiance. In Owen’s eyes the military arm was subject to the properly constituted national government, and from the moment when the Irish people had invested the Supreme Council with sovereign authority, he felt bound to yield complete and ready obedience. He now became a mere officer of the Council, and his army became a branch of their service, his very frigates and stores were made the property of the Supreme Council, and Owen had to sue respectfully for some arms out of one of his own ships which had just come from Dunkirk to Wexford abundantly laden. At the same time Colonel Thomas Preston, Owen’s competitor in Flanders for the allegiance of the men of Leinster, landed in Wexford. The Supreme Council seemed to have centred all their hopes on Preston, Lord Gormanstown’s uncle, and the special favourite of the Leinster Lords. He was an able commander, and now in his fifty-seventh year he was of ripe experience in the art of war. Partly to honour him, and partly by contrast to belittle Owen, the Kilkenny rulers received Preston with regal magnificence. Kilkenny was for weeks permanently en fete; illuminations, receptions, banquets, and balls went on in gay succession. Preston was declared “Lord General of the Army of Leinster,” marking off still more the northern Irish from their countrymen in the Pale. The Leinster army was admirably equipped; for Owen O’Neill had enlisted the services of “Don Antonio of Dunkirk, and Captain Doran, an old Irish naval commander,” and these men with Owen’s frigates held the southern seas, and were engaged in a large carrying trade between Ireland and Flanders. “Arms, ammunition, and artillery came in plenty; yet though Owen O’Neill was the sole author of this so beneficial a traffic, I never heard” (says a contemporary observer) “that he ever got by it as much as thanks. Indeed, they would wish him no nearer than Grand Cairo while they sang gratulatory poems to their ne plus ultra Prestonian Blade.” Preston’s army, thus created and supplied by Owen, consisted of 6,000 foot and 600 horse; and Leinster was quite at ease, “not once; calling to mind the bleeding wounds of Ulster, bearing on its shoulders the brunt of all the blows of bloody Mars in Ireland.” Indeed, Ulster was treated as a foreign and a savage country. The Supreme Council never visited it. Its members on the contrary progressed in glorious state from Kilkenny to Wexford, from Wexford to Waterford, thence to Limerick, winding up at Galway, surrounded as they journeyed by hundreds of horsemen with drawn swords, and accompanied by an army of officials; “with civil and military representations of comedies and stage plays, feasts, and banquets, and palate-enticing dishes.” The Leinster soldiers were comfortably quartered in the towns and villages of the great rich central plain of Ireland, so that the whole province was really a thriving and well-ordered State. Owen, neglected and maligned, was as it were banished to the distant fastnesses of the north, where without aid or recognition he laboured to recruit and furnish an army for the protection of Ulster.
The history of these unfortunate months proclaims but too loudly that the new constitution, and the administration of lords and lawyers untrained in great affairs, however it may have been adapted for peace, was woefully unsuited for a state of war. Possibly the evil might not have proved so fatal had there been in Kilkenny really representative men; but, in addition to all its other weaknesses, the Supreme Council merely represented the lords of Leinster; and this flaw permeated the whole political and military administration, although it very little affected the local government of counties or the administration of the law. But while in politics the Lords of the Pale and the bishops directed affairs, military movements were made subservient to political necessities. While the lords and bishops who were more or less subservient to them were acting in this way a new and most remarkable force began to stir the masses. For outside the legitimate constituted authorities of the Model there grew up a Clergy Congregation where the lower ecclesiastics met and deliberated. They had themselves consented to the Model of Government; which had given them no constituent rights in the General Assembly, though it allowed them as a congregation to meet, deliberate, and advise. In process of time, this unrecognised body dominated the regular assembly. For the lower clergy were mostly men of the people. Primate Lombard, as long back as 1627, had sorrowfully noticed how the clerical students then to be met with differed from the men of higher station and culture with whom he had passed his professional years. “They swarmed,” he said, “over Alps and Apennines, carrying their brogues in their hands, and seeking degrees to entitle them to Holy Orders, but knowing little of the world’s culture or of the knowledge to be found by long study and meditation.” All this was so; but on the whole they were better guides than the bishops, especially; than the bishops of Leinster, kinsmen of the Lords of the Pale and in constant contact with worldly ambitions and political intrigue. The lower clergy had no power, of course, over the daily acts of administration, and only asserted themselves on great emergencies, often when the intervention was necessarily too late. They performed, in fact, the functions of a really powerful press arrayed all on one side.
In course of time, indeed, they came to exercise so great a political influence in the south, particularly in the cities of Limerick and Waterford that the Supreme Council was forced more than once to yield to their demands. From beginning to end these preachers among the people were entirely opposed to all secret treaties, understandings, and accommodations between Ormond and the Kilkenny Cabal, and were steadily on the side of Owen O’Neill. But such support, however enthusiastic and zealous, can little help a commander who needs the regular assistance of the constituted authorities which he serves rather than the mere sympathy of any extraneous body however distinguished and powerful it may be. The good wishes and prayers of the patriotic pastors availed little to the poor famishing soldiers on the hills of Ulster; but in later days when even soldiers had to become politicians, Owen Roe found in the “Clergy Congregation” his truest and most steadfast support.
 Aph. Dis.