From a View to a Discovery: Edmund Spenser, Sir John Davies, and the defects of law in the realm of Ireland.I
Over the course of the past two decades, Nicholas Canny has argued that Edmund Spenser's A View of the Present State of Ireland stands at the centre of the British colonial project in Ireland as a paradigmatic See paradigm. text. The program laid out in the View provided not only Spenser's contemporaries, but also subsequent generations of Anglo-Irish settlers in Ireland, "with an identity and sense of moral purpose which sustained them throughout the travails of the seventeenth century." (1) Although written around 1596 the View was not actually published until 1633; however, Spenser's dialogue circulated widely in manuscript and was available to a number of figures directly involved with Irish affairs. These included individuals such as Sir John Davies and Sir Arthur Chichester, both of whom were directly involved in planning the plantation of Ulster The Plantation of Ulster (Irish: Plandáil Uladh) was a planned process of colonisation which took place in the northern Irish province of Ulster during the early 17th century in the reign of James I of England. during the reign of James I James I, king of Aragón and count of Barcelona
James I (James the Conqueror), 1208–76, king of Aragón and count of Barcelona (1213–76), son and successor of Peter II. . (2)
Canny's interpretation is not without critics. For example, Ciaran Brady has argued that far from forming an ideologically coherent paradigm, Spenser's tract "is riddled with ambiguity." (3) The View was less a systematic statement of the Anglo-Irish program than an often contradictory response to the specific crisis facing recent, "New" English colonists in Ireland during the 1590s, an attempt "to marry expediency and morality," written in a "tortured and distorted manner." (4) Brendan Bradshaw has argued that, although Spenser's arguments were certainly of interest to contemporaries, they were neither ideologically representative of the Elizabethan colonists as a community nor even of other humanist intellectuals involved in the colonization of Ireland. Bradshaw has offered an alternative interpretation, contrasting the views of Spenser with those of his New English New English
See Modern English. , humanist contemporaries such as William Herbert William Herbert may refer to several people, including: Earls
This article challenges Canny's interpretation through a comparative analysis of Spenser's View and Sir John Davies' A Discovery of the True Causes Why Ireland was Never Entirely Subdued [And] Brought under Obedience of the Crown of England until his Majesty's Happy Reign, first published in 1612. Although these texts were composed over a decade apart in different contexts, both typified a particular genre of writing on Irish affairs, addressed the same basic issues of colonial governance in Ireland, and prescribed remedies for the defects of law and civil policy in that realm. (6) The method followed here will mirror that of Brendan Bradshaw; however, rather than considering an exact contemporary of Spenser, I will address my concerns to Davies' Discovery in extending this framework vertically into the period of Jacobean plantation.
Canny has suggested that Davies merely adopted and extended the Spenserian program, taking advantage of the English victory in the Nine Years' War (1594-1603) to make a more "perfect" conquest of Ireland. Rather than offering a rival program of colonial expansion and state building, Davies' Discovery completed and complemented the View's program with the sword having already cleared the way for the robe in the conquest of Ireland. In this interpretation Davies "adhered rigidly to the ideas of Spenser" and the Discovery reads almost as an appendix to the View rather than a rival vision of the Irish polity, the ills afflicting it, and the potentials of the English law The system of law that has developed in England from approximately 1066 to the present.
The body of English law includes legislation, Common Law, and a host of other legal norms established by Parliament, the Crown, and the judiciary. as a civilizing agent in that realm. (7)
The strategy here will be to split rather than lump. (8) Following the work of Hans Pawlisch, I will argue that the Discovery offered neither refinement nor complement to the Spenserian program and Spenser's ethnological eth·nol·o·gy
1. The science that analyzes and compares human cultures, as in social structure, language, religion, and technology; cultural anthropology.
2. view of Irish society The Irish Society may refer to:
tr.v. civ·i·lized, civ·i·liz·ing, civ·i·liz·es
1. To raise from barbarism to an enlightened stage of development; bring out of a primitive or savage state.
2. the native Irish and raise the old English Old English: see type; English language; Anglo-Saxon literature.
Language spoken and written in England before AD 1100. It belongs to the Anglo-Frisian group of Germanic languages. from their degenerate state. The common law was the embodiment of practical rationality, the collective wisdom of the English nation handed down from time out of mind; its communication to the Irish was essential for raising them from their barbaric state and rendering Ireland a commonwealth after the pattern of England. These two texts, therefore, offer readers, not only competing programs or theories of colonization, but also competing narrative models for writing the history of early modern Ireland: one ethnological deriving from Spenser's View and the other sovereignty-centred deriving from Davies' Discovery.
The origins of Spenser's View have been the subject of some controversy. Even granting Brady's contention that the View was not at its inception an ideologically programmatic text, this certainly did not prevent subsequent readers from interpreting it as such. David J. Baker
David Jewett Baker (September 7, 1792 - August 6, 1869) was a United States Senator from Illinois. has suggested that the tract's avowed a·vow
tr.v. a·vowed, a·vow·ing, a·vows
1. To acknowledge openly, boldly, and unashamedly; confess: avow guilt. See Synonyms at acknowledge.
2. To state positively. criticism of the English law and its efficacy in Ireland led Elizabeth's council to suppress its publication; however, other scholarship, most notably that of Jean R. Brink, has suggested that the View was not, at least initially, intended for publication nor was it subject to Elizabethan censorship. (10) The program of violent conquest and martial law advocated in the View was nevertheless controversial when contrasted with late Tudor and early Stuart common lawyers' increasingly optimistic assessment of the English law, its superiority over other bodies of law, and its potential to solve the intractable problems of the day. (11)
The emergence of a "common-law mind" or mentality among English jurists of the late Tudor and early Stuart period has been a recurring theme among historians of political thought and culture since the publication of J. G. A. Pocock's The Ancient Constitution and the Feudal Law in 1957. (12) While subsequent interpretations have nuanced, refined, and occasionally challenged Pocock's arguments, the basic outline remains: the common law, as immemorial IMMEMORIAL. That which commences beyond the time of memory. Vide Memory, time of. and rational custom, was the fundamental law of the land, giving shape and form to the English polity as a body politic BODY POLITIC, government, corporations. When applied to the government this phrase signifies the state.
2. As to the persons who compose the body politic, they take collectively the name, of people, or nation; and individually they are citizens, when considered . The law had existed "time out of mind" since before the beginnings of written law in an unbroken continuous thread. The Norman Conquest Norman Conquest, period in English history following the defeat (1066) of King Harold of England by William, duke of Normandy, who became William I of England. The conquest was formerly thought to have brought about broad changes in all phases of English life. was not a true conquest because William the Conqueror William the Conqueror: see William I, king of England. did not give new law as a conqueror but confirmed the existing laws and customs of England. The authorities to whom Pocock and subsequent interpreters have attributed this kind of political language included such figures as Sir Edward Coke Sir Edward Coke (pronounced "cook") (1 February 1552 – 3 September 1634), was an early English colonial entrepreneur and jurist whose writings on the English common law were the definitive legal texts for some 300 years. , John Selden John Selden (December 16, 1584 – November 30, 1654) was an English jurist, legal antiquary and oriental scholar. He was known as a polymath of astounding intellectual depth and breadth; even John Milton, one of the greatest luminaries of 17th century England, hailed Selden as , Thomas Hedley, and, of course, Sir John Davies. The thesis now admits large degrees of pluralism with some common lawyers emphasizing the law's customary or immemorial character and others more concerned with its character as "tried reason." Indeed, one recent commentator has suggested that if there was a "common law mind" it was certainly a divided one. (13)
Edmund Spenser, unlike Sir John Davies after him, was most assuredly not a proponent of this decidedly optimistic view of the English law. He simply did not see the English common law as equal to the task of governing Ireland in its present disordered state. Indeed, early in the View Spenser explicitly rejected the central historical premise of the common law's continuity, arguing instead that the existing English law was the imposition of William the Conqueror. (14) In the View Eudoxus asks Iraenus why, given the common law's subsequent justness and agreeability to the people of England, he dislikes the common law and the statutes of the realm, "as not so meet for that realm of Ireland." (15) Iraenus, a veteran servitor familiar with Irish affairs, responds at length and in the ensuing dialogue he emphasizes that at the time of their conquest in 1066 the English were already in a civilized condition. (16)
This ethnological premise underlies the argument of the View from the beginning: early in the View Iraenus sets forth the argument that England was at the time of the Norman Conquest, "a peaceable kingdom A Peaceable Kingdom was a television drama aired by CBS as part of its 1989 Fall lineup.
A Peaceable Kingdom starred Lindsay Wagner as the recently-hired managing director of the Los Angeles County Zoo, who was also recently widowed with three children. , and but lately enured to the mild and godly god·ly
adj. god·li·er, god·li·est
1. Having great reverence for God; pious.
god government of King Edward King Edward has been the name of several monarchs in English history:
2. ." (17) Although the English were once a people as barbaric and uncivil as the native Irish, they had, through the harsh policies of the Saxon kings, already been gentled to a civil condition. (18) The English were thus able to accept the laws of Normandy and make them their own because those laws were suited to their condition and because the conqueror was personally present to see their enforcement. (19)
Ireland, however, was a very different case with the native inhabitants recently existing in an uncivil, barbaric state lacking the fully-developed rational capacity for moral deliberation that marked a civilized people. (20) Bradshaw has suggested that Spenser operated within the framework of sixteenth-century anthropology in arguing that the native Irish exhibited a primacy of will over intellect common to primitive man; this condition "was typified essentially by an unruly will, by the absence of self-discipline and the rejection of social discipline which together made for anarchy." (21) But Spenser went further than merely classifying the native Irish as uncivilized barbarians. The old English, the descendents of Anglo-Norman colonists, had over the centuries become a degenerate people who had, through intermarriage in·ter·mar·ry
intr.v. in·ter·mar·ried, in·ter·mar·ry·ing, in·ter·mar·ries
1. To marry a member of another group.
2. To be bound together by the marriages of members.
3. , fostering, and the adoption of Gaelic customs such as coign and livery, "degenerated and grown almost mere Irish, yea and more malicious to the English than the very Irish themselves." (22)
Spenser's ethnological views, of course, fell far short of the sort of biologically derived, racialist theories that would come to predominate during the nineteenth-century debates on African slavery. (23) Spenser and his contemporaries would not have considered the native Irish a separate species from the civilized peoples of Europe--merely a twisted and imperfect branch extending from the common trunk of humanity. However, these presumptions remained strong enough to lead Spenser to question the efficacy of the jury system, the cornerstone of common-law procedure in both England and Ireland. Iraenus explained the unfitness of the jury system for Ireland in terms of the fundamental unsuitability of Irish as jurors. (24) The jury system was subject to abuse on many grounds. It allowed the accused a number of peremptory peremptory adj. absolute, final and not entitled to delay or reconsideration. The term is applied to writs, juror challenges or a date set for hearing.
PEREMPTORY. Absolute; positive. A final determination to act without hope of renewing or altering. challenges of potential jurors allowing the dismissal of the existing "small store" of honest jurors. (25) Furthermore, the common law had the added disadvantage that accessories could not be proceeded against until the principal was tried and convicted. (26)
The main problem, however, was simply that the jurors themselves, the native Irish and degenerate old English who made up the majority of freeholders in Ireland, could not be relied upon to act in the interest of justice because of their depraved moral condition: they were simply unreliable as moral agents. Spenser, therefore, premised his attack on the jury system on his ethnological view of Irish society. The Irish needed to be civilized before they could properly receive and enjoy the law of a civilized people in the same way that the English had been prior to 1066. The agent of civilization was not the rule of English law but military and judicial violence. (27)
Spenser's attack on the jury system was critical to his broader program because the common law was a body of law defined as much by its customs and procedures as its written sources. The common law was a body of practical knowledge rather than a written code after the model of Roman and civil law. (28) By the end of the sixteenth century the right to trial by jury had assumed an integral role in the procedures of the common law. Although we know today that the rise of the jury system occurred primarily after the medieval church's ban on trial by ordeal in 1215, early moder common lawyers had a very different view of the jury system. (29) They saw it as a heritable her·i·ta·ble
1. Capable of being passed from one generation to the next; hereditary.
2. Capable of inheriting or taking by inheritance. birthright handed down, time out of mind from before the Norman Conquest: the right to trial by jury was not only of pre-conquest origin but had also received affirmation under chapter twenty-nine of the Magna Carta Magna Carta or Magna Charta [Lat., = great charter], the most famous document of British constitutional history, issued by King John at Runnymede under compulsion from the barons and the church in June, 1215. . (30) Without juries the common law was not recognizable as such.
Spenser's program for Ireland, therefore, included not only a violent and total conquest followed by the erection of strategically-located garrisons, but also a program of judicial violence that included the widespread re-imposition of martial law, the use of which had fallen largely into abeyance from 1586 onwards. (31) According to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. Iraenus' plan, a Provost Marshal pro·vost marshal
The head of a unit of military police.
the officer in charge of military police in a camp or city
Noun 1. would be appointed for every shire who would then patrol the countryside with six to ten mounted men looking for "such loose persons as they should find thus wandering." (32) The Provost Marshal would punish on his own authority, in the first instance lightly with stocks, in the second instance more harshly with flogging, and in the third instance with "the bitterness of martial law"--summary execution. (33) Old rebels who had failed to come in and submit themselves to the law and those who having submitted themselves did "break forth again or walk disorderly" were to meet the same fate. (34) Because commissions of martial law did not rely on the fickleness of juries, they were not subject to the sort of subversions and procedural abuses that Spenser saw the Irish perpetrating on the English legal system. In order to civilize the Irish and prepare them to receive English law (and English religion) it was necessary first to break them to an adequate level of servility ser·vile
1. Abjectly submissive; slavish.
a. Of or suitable to a slave or servant.
b. Of or relating to servitude or forced labor. . Essentially, Spenser advocated the Elizabethan equivalent of "shock and awe Shock and awe, technically known as rapid dominance, is a military doctrine based on the use of overwhelming decisive force, dominant battlefield awareness, dominant maneuvers, and spectacular displays of power to paralyze an adversary's perception of the battlefield and "; violence became the primary agent of cultural change.
Elsewhere I have argued that Thomas Wentworth, Earl of Stratford and his adherents adopted a position of Irish constitutional exceptionalism ex·cep·tion·al·ism
1. The condition of being exceptional or unique.
2. The theory or belief that something, especially a nation, does not conform to a pattern or norm. in defending their actions during Wentworth's tenure as Charles I's deputy in Ireland (163-341). (35) Simply put, this position held that while the common law and Magna Carta generally held sway in Ireland, because of circumstances unique to that kingdom, there were significant exceptions with regard to the legal rights and privileges that English customs and statutes conferred on the king's subjects in Ireland. At his trial, Wentworth attempted to justify his rough handling of Magna Carta, his use of martial law in time of peace, and his expansion of the equitable jurisdiction of Council Board in these terms. Spenser's View, appearing in print for the first time in 1633 with a dedicatory to Wentworth, provided a potential justification for many of his administration's legally questionable methods and practices. (36) In essence it offered an ethnological underpinning to the position of Irish constitutional exceptionalism on which Wentworth attempted to justify his frequently harsh policies during his trial before the House of Lords House of Lords: see Parliament. in the spring of 1641.
Spenser's analysis of the state of Irish affairs reflected a deep scepticism of late Tudor reformist arguments advocating persuasion over military force in the settling of Ireland. An adjunct to this was his equally deep scepticism of the common law and its powers as a civilizing agent. Simply put, the depraved moral condition of the Irish and the degenerate condition of the old English rendered them unable to accept the practices of the common law without subsequently attempting to subvert the ordinary course of justice. For Spenser the common law was not the agent of cultural change in Ireland but its completion and complement; the true agent of cultural change was military and judicial violence. Only a violent and total conquest followed by the widespread imposition of martial law would prove successful in the settling of Irish affairs. Sir John Davies, however, offered a very different vision of the Irish polity and the role of the English law as the primary agent of cultural change.
Were one to look for an official statement of the Dublin administration's policies in Ireland during the first two decades of the seventeenth century, one need look no further than Sir John Davies' A Discovery of the True Causes Why Ireland was Never Entirely Subdued [And] Brought under Obedience of the Crown of England until his Majesty's Happy Reign first published at Dublin in 1612. (37) As Attorney General in Ireland Davies enjoyed an indisputable claim to articulate official policy. Furthermore, although the Discovery echoed many of the complaints of the View, it took a decidedly more optimistic view of the common law and its potential as a civilizing agent in the realm of Ireland. Davies argued that, far from being unsuited to the native Irish in their present barbaric condition, the English common law represented the best available instrument for "civilizing" the Irish as part of a broader program of Anglicization.
Davies' central premise was that English monarchs For the various rulers of the kingdoms within England prior to its formal unification, during the Heptarchy, see Bretwalda. For a comprehensive list of English, Scottish, and British monarchs, see List of monarchs in the British Isles. since the time of Henry II had failed to subject Ireland to their rule because they had failed to gather all the marks and rights of sovereignty into their sole possession in that realm. Davies defined "sovereignty" in terms borrowed from the late sixteenth-century French jurist A judge or legal scholar; an individual who is versed or skilled in law.
The term jurist is ordinarily applied to individuals who have gained respect and recognition by their writings on legal topics.
jurist n. Jean Bodin Jean Bodin (1530–1596) was a French jurist and political philosopher, member of the Parlement (not to be confused with the English Parliament) of Paris and professor of Law in Toulouse. He is best known for his theory of sovereignty. : "... to give laws unto a people; to institute magistrates and officers over them; to punish and pardon malefactors; to have the sole authority of making war and peace, and the like, are the true marks of sovereignty, which Henry II had not in the Irish countries, but the Irish lords did still retain all these prerogatives to themselves." (38) The native Irish lords had continued to govern themselves according to Brehon law, to appoint their own magistrates, to pardon and punish wrong doers, and to make war and peace on each other "without any controlment." (39) They were, at best tributaries and not subjects and vassals of the English king because they continued to exercise the rights and marks of sovereignty independently from the English crown. According to Davies, Medieval Ireland was less a unitary commonwealth after the pattern of England than a clustered multitude of sovereignties.
Like Spenser, Davies was critical of the military failures of the English in Ireland, arguing that a combination of rebellious barons and European wars had frequently distracted English monarchs from the task of fully conquering Ireland. English Kings such as John I and Richard II who did make concerted efforts to reduce Ireland militarily often found their efforts undermined by rebellious barons in England. (40) As a result, for a period of approximately 150 years "between 12 King John and 36 King Edward III ... although there were a continual bordering war between the English and the Irish, there came no royal army out of England to make an end to war." (41) Only with Mountjoy's victory in the Nine Years War and the subsequent imposition of English legal customs over the whole of Ireland was the conquest of Ireland made perfect.
While Davies did not completely discount the historical shortcomings of English military policies in Ireland, he held that it was primarily the failures of "Civil Policy" that had frustrated the extension of English sovereignty over the whole of Ireland. The primary defect of civil policy was that English monarchs had not exercised the first and most crucial of Bodin's marks of sovereignty over the native Irish: "power to give lawes to all ... subjects in generall, and to euerie one of them in particular ... without consent of any other greater, equall, or lesser." (42) In the case of Ireland the law that they had failed to give was the commonlaw of England. (43) This was crucial because Davies unlike Spenser shared with many of his contemporaries a decidedly optimistic view of the common law as the tried reason of the ages. While Spenser saw the uncivil condition of the native Irish as an impediment to the common law's extension to Ireland, Davies saw the common law as the necessary, rational, civilizing agent for raising the Irish from their barbaric condition. The common law would impose an external juristic ju·ris·tic also ju·ris·ti·cal
1. Of or relating to a jurist or to jurisprudence.
2. Of or relating to law or legality.
ju·ris order, enfranchising and denizening the Irish making them lawful subjects of the crown; this change in their legal status would, given the passage of time, eventually effect their inward transformation into rational civil beings and their assimilation to English culture. (44)
Historians of political thought have frequently advanced Sir John Davies, along with Sir Edward Coke, as an exemplar of the "Common Law Mind." (45) This categorization remains justified with the proviso that Davies be considered among those common lawyers who emphasized the presumptive pre·sump·tive
1. Providing a reasonable basis for belief or acceptance.
2. Founded on probability or presumption.
pre·sump rationality of English law over its historical immemoriality. (46) The interpretation here, therefore, derives as much from Davies' argument in the Case of Tanistry as from the Introduction to his Irish Reports--the text that was foundational to Pocock's original interpretation of the "Common Law Mind." (47) Indeed, Davies' political thinking is significant in that it represents an intriguing synthesis of Bodinian statism stat·ism
The practice or doctrine of giving a centralized government control over economic planning and policy.
statist adj. with the language of the ancient constitution. For all his borrowings from Bodin and the sources of the civil law, Davies remained very much part of a legal culture that had come to venerate the English law as fundamental to England's constitution as a body politic; the common law was both integral to English national identity and the embodiment of practical reason.
The common law was not only the collective reason of the English people Noun 1. English people - the people of England
nation, country, land - the people who live in a nation or country; "a statement that sums up the nation's mood"; "the news was announced to the nation"; "the whole country worshipped him" but also the very vessel of Englishness. Consequently, the common law's imposition abroad would have the effect of rendering a barbaric land's inhabitants more English and hence more rational and civilized. Although he shared with Spenser the common objective of Anglicization, Davies argued that military means alone could not achieve this objective. Past conquests had failed not just militarily but because they had not consolidated their gains with the imposition of the English law. While he was quite happy to accept that Ireland was a conquered realm and the Irish a conquered people, consistent with the historical foundations of the "Common Law Mind," Davies argued both in the Discovery and in the Case of Tanistry for the historical continuity of the common law in England from pre-Norman times. In the latter instance he cited Sir Edward Coke with approval and repudiated Bodin's contention that William I William I, king of England
William I or William the Conqueror, 1027?–1087, king of England (1066–87). Earnest and resourceful, William was not only one of the greatest of English monarchs but a pivotal figure in European had conquered England and imposed Norman law Norman law refers to the customary law of Normandy which developed between the 10th and 13th centuries following the establishment of the Vikings there and which survives today still through the legal system of the Channel Islands. there. (48)
For Davies, the legal status of the native Irish as aliens was the cause of their continued barbarity:
This, then, I note as the great defect in the civil policy of this kingdom, in that for the space of 350 years at least after the conquest first attempted, the English laws were not communicated to the Irish, nor the benefit and protection thereof allowed unto them, though they earnestly desired and sought the same. For, as long as they were out of the protection of the law, so as every Englishman might oppress, spoil, and kill them without controlment, how was it possible they should be other than outlaws, and enemies to the Crown of England? If the king would not admit them to the condition of subjects, how could they learn to acknowledge and obey him as their sovereign? (49)
For Davies the changing of the native Irish's legal status from "Irish enemies" to lawful subjects of the crown was essential to raising them from their barbaric condition. Although "some few septs of the Irishry" had been enfranchised by specific charters, "the Irish generally were held and reputed aliens, or rather enemies, to the Crown of England; insomuch as in·so·much as
1. To such extent or degree as.
2. Inasmuch as; since. they were not only disabled to bring any actions, but they were so far out of the protection of the law as it was often adjudged no felony to kill a mere Irishman in the time of peace." (50) In short, the native Irish were not legal persons at common law; they could not hold suit in the king's courts in Ireland and their lives, goods, and estates did not fall under the protection of the king's law.
As for the alternative legal regime of Gaelic lordship, Davies argued that the irrationality of Irish legal customs was manifest. Felonies that were punishable by death at common law were commutable com·mut·a·ble
1. That can be substituted, interchanged, or revoked: a commutable prison sentence.
2. to a fine at Brehon law fostering lawlessness and uncivil behaviour. (51) Another target of Davies was, of course, Tanistry, the native Irish system of landholding land·hold·er
One that owns land.
landholding n. under which the "most worthy" of the clan inherited rather than the first-born male heir. (52) The English custom of primogeniture primogeniture, in law, the rule of inheritance whereby land descends to the oldest son. Under the feudal system of medieval Europe, primogeniture generally governed the inheritance of land held in military tenure (see knight). was more rational because it provided for certainty of title avoiding the sort of internecine in·ter·nec·ine
1. Of or relating to struggle within a nation, organization, or group.
2. Mutually destructive; ruinous or fatal to both sides.
3. Characterized by bloodshed or carnage. warfare that was endemic among the native Irish. (53) For Davies, only the extirpation ex·tir·pa·tion
The surgical removal of an organ, part of an organ, or diseased tissue.
extir·pate of such customs and the imposition of the time-tested, rational practices of the common law could bring the Irish to a state of civility.
These failures of civil policy also included the failure to gather the sole power of war and peace into the hands of a single sovereign authority. Davies argued that in the previous four hundred years Ireland was less a sovereign entity than a cluster of sovereignties or "little kingdoms" each intermittently levying war on each other and on the authority of the crown. (54) The problem was not merely the barbarity and wilfulness of the native Irish, but that the initial grants to the original Anglo-Norman adventurers had been too generous. As a result, the great old English lords, most notably Kildare and Ormond, "presumed to make war and peace without direction from the state." (55) Consequently, the crown's interests in Ireland had been at the mercy of over-mighty subjects from the beginning.
Further exacerbating the situation, the old English magnates had turned increasingly to the "damnable dam·na·ble
Deserving condemnation; odious.
dam " native Irish custom of coign and livery in maintenance of their private armies. (56) Under this customary right of Irish Lordship troops could be quartered without payment directly on the population. Because the power of war and peace was not gathered to a single sovereign authority, Ireland was in a state of continual warfare and this evil custom had become "universal and perpetual" much to the rain of "the better sort of subjects" in that realm regardless of ethnicity. (57) Only with the end of the Nine Years' War, the Act of Oblivion, the dismantling of the oppressive and uncertain socio-legal apparatus of Gaelic lordship, and the extension of the Assize assize
In law, a session, or sitting, of a court. It originally referred to a judicial inquest in which a panel of men conducted an investigation. It was later applied to special sessions of high courts in England and France. to all of Ireland did the Irish begin rise to a civilized state.
The old English community's increasing resort to native customs was crucial for Davies' analysis of Irish affairs because law was not only integral to cultural identity, it was also the primary agent of cultural change. To exercise Bodin's first and "chiefest" mark of sovereignty and give law to a people as a conqueror had the potential to alter their character, condition, and identity. Furthermore, this change could be both positive and negative; just as the laws of a civilized people could have a civilizing effect when communicated to a barbaric people, so too could the laws of a barbaric people have a degenerative effect on a hitherto civilized race such as the old English in Ireland. For Davies the English common law, the customary, collective reason of the English people, was the agent of both Anglicization and civilization.
The View and the Discovery represent something more than simply rival programs of colonization and state building. They strongly suggest very different visions of the Irish polity, its place in the emerging British Atlantic World The Atlantic World is an organizing concept for the historical study of the Atlantic Ocean rim from the fifteenth century to the present. Geography
The Atlantic World comprises the four continents bordering the Atlantic Ocean: Europe, Africa, North America, South America; , and, more fundamentally, diverging narrative models for writing the history of early modern Ireland and interpreting the Irish past.
The first, exemplified by Spenser's View, argues for an ethnological conception of Irish history that emphasizes both the diasporic movement of peoples in the Atlantic and the resulting contact between disparate cultures, in this case the New English and native Irish with the existing Anglo-Norman population increasingly caught between. This narrative framework, most fully developed in Nicholas Canny's work, sets the Irish history in the context of the movement of peoples, not only within Europe's western archipelago, but also in the broader context of the emerging British Atlantic World. The Irish experience of the sixteenth and seventeenth centuries was that of a set of cultural encounters very much akin to that taking place co-temporaneously on the other side of the Atlantic between Native Americans and Europeans. (58)
The second, deriving from Davies' Discovery, is a sovereignty-centred narrative that emphasizes the emergence of Ireland as a largely unified and autonomous polity, held together by the rule of the common law. This law was fundamental not only to the definition of England as a body politic but also to the emergence of a unified Irish polity after the pattern of England with the true marks of sovereignty in the sole possession of a single legally-constituted authority. (59) Rather than offering a model for the writing of a "New" intercultural history of the British Isles British Isles: see Great Britain; Ireland. , the Discovery offers instead a model for writing a sovereignty-centred narrative of the Irish past emphasizing the emergence of Ireland as an autonomous commonwealth. The crowning irony is that Davies the legal imperialist, in making Ireland more English, would also have rendered it unified and sovereign, laying the ground for a "national" rather than a "British" historiography. (60)
With regard to the defects of law in the realm of Ireland the salient difference between the View and the Discovery lay in the relationship of law to cultural change and national identity. For Spenser the common law played merely a complementary role: military-judicial violence, not the rule of law, was the agent of cultural change. Only after a harsh and violent conquest as well as a substantial period of martial law and re-education would the Irish be able to accept the common law without endeavouring to subvert its procedures. For Davies, however, the common law of England was the time-tested, customary wisdom of the English people, the practical embodiment of learned reason, and the agent of cultural change. English rule in Ireland had been imperfect because the ligaments and sinews of reciprocal obligation and protection that the common law formed between subject and sovereign in England did not extend beyond the Pale in Ireland. If Davies' Discovery completed and complemented the Spenserian program, it did so entirely by accident.
(1) Nicholas P. Canny, "Edmund Spenser and the Development of Anglo-Irish Identity," Yearbook of English Studies: Colonial and Imperial Themes, 13 (1983), 2; Canny has argued for the centrality of Spenser's View most recently in his, Making Ireland British, 1580-1650, (Oxford, 2001), Ch. 1.
(2) Davies had access to a manuscript copy of the View now in the British Library that was in the possession of the Lord Deputy, Sir Arthur Chichester; however, Jean Brink has suggested that there is no compelling evidence that Davies actually read it. Her suggestion that Spenser did not actually write the View is less compelling: Jean R. Brink, "Constructing the View of the Present State of Ireland," Spenser Studies, 11 (1990), 217; for Canny's assertions of influence see: Canny, Making Ireland British, p. 58.
(3) Ciaran Brady, "Spenser's Irish Crisis: Humanism and Experience in the 1590s," Past and Present, 111 (1986), 33.
(4) Brady, "Spenser's Irish Crisis," p. 41; Nicholas P. Canny, "Debate: Spenser's Irish Crisis: Humanism and Experience in the 1590s," Past and Present, 120 (1988), 201-9.
(5) Brendan Bradshaw, "Sword, Word, and Strategy in The Reformation in Ireland," Historical Journal, 21 (1978), 475-502; Brendan Bradshaw, "Robe and Sword in the Conquest of Ireland," in Claire Cross, David Loades, and J.J. Scarisbrick (eds.), Law and Government Under the Tudors: Essays Presented to Sir Geoffrey Elton, Regius Professor of Modern History For the Regius Professors of Modern History see
(6) James P. Myers, "Early English Colonial Experience in Ireland: Captain Thomas Lee and Sir John Davies," Eire-Ireland, 23 (1988), 8-9.
(7) Canny, "Anglo-Irish Identity," p. 15; see also Nicholas P. Canny, "Identity Formation in Ireland: The Emergence of the Anglo-Irish," in Nicholas P. Canny and Anthony Pagden (eds.), Colonial Identity in the Atlantic World, 1500-1800 (Princeton, 1987), p. 178.
(8) The legal scholar Anthony Carty has suggested this approach with respect to these two texts: Anthony Carry, Was Ireland Conquered?: International Law and the Irish Question, (London, 1996), p. 55.
(9) Hans S. Pawlisch, Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge, 1985); Hans S. Pawlisch, "Sir John Davies, the Ancient Constitution, and the Civil Law," Historical Journal, 23 (1980), 689-702.
(10) David J. Baker, "'Some Quirk, Some Subtle Evasion': Legal Subversion in Spenser's A View of the Present State of Ireland," Spenser Studies, 6 (1986), 147-63; David J. Baker, Between Nations: Shakespeare, Spenser, Marvell, and the Question of Britain (Stanford, 1997), Ch. 2; for a competing view see "Brink, "Constructing the View," pp. 203-27.
(11) Alan Cromartie, "The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England," Past and Present, 163 (1999), 77-120; see also Baker, Between Nations, p. 191.
(12) J. G. A. Pocock John Greville Agard (J.G.A.) Pocock (born March 71924) is a world-renowned historian and expatriate New Zealander, noted for his trenchant studies of republicanism in the early modern period (especially in Europe, Britain, and America), for his treatment of Edward Gibbon and , The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century, (first edn Cambridge 1957; Cambridge, 1987); Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603-1642 (London, 1992); J.W. Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions (Baltimore, 2000); J.W. Tubbs, "Custom, Time, and Reason: Early Seventeenth-Century Conceptions of the Common Law," History of Political Thought, 19 (1998), 363-406; Hans Pawlisch has emphasized the influence of civil law on the development of Davies' "imperial" jurisprudence: Pawlisch, Sir John Davies, Ch. 9.
(13) Tubbs, Common Law Mind, p. 195.
(14) Edmund Spenser (W.L. Renwick ed.), A View of the Present State of Ireland (Oxford, 1970), pp. 4-5, 10-13.
(15) A View, p. 10.
(16) Ibid., pp.4, 11-12, 143-45.
(17) Ibid., p. 4.
(18) Ibid., pp. 143-44
(19) Ibid., p. 11.
(20) Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain, and France, c. 1500-1800 (New Haven, 1995), pp. 19-23; Jack P. Greene, The Intellectual Construction of America: Exceptionalism and Identity from 1492 to 1800, (Chapel Hill and London, 1993), Ch. 1.
(21) Bradshaw, "Sword, Word, and Strategy," pp. 490-91.
(22) A View, p. 48.
(23) Brady, "Spenser's Irish Crisis," 29-30.
(24) A View, p. 22.
(25) Spenser's charge that the common law allowed 36 such challenges is probably exaggerated although Maguire in 1645 did actually try this tactic: A View, p. 25; D. Alan Orr, Treason and the State: Law, Polities, and Ideology in the English Civil War English civil war, 1642–48, the conflict between King Charles I of England and a large body of his subjects, generally called the "parliamentarians," that culminated in the defeat and execution of the king and the establishment of a republican commonwealth. (Cambridge, 2002), p. 152.
(26) A View, pp. 25-26.
(27) Stephen Greenblatt, Renaissance Self-Fashioning from More to Shakespeare, (Chicago, 1980), pp. 184-86; Andrew Hadfield, "Spenser, Ireland, and Sixteenth-Century Political Theory," Modern Language Review, 89 (1994), pp. 4-5.
(28) Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England, (Chicago, 1992), Ch. 2; Conrad Russell, "James VI and I and the Rule over Two Kingdoms: an English View," Historical Research, 76 (2003), 161.
(29) J. H. Baker, An Introduction to English Legal History, third edn (London, 1991), p. 87.
(30) See my discussion of Sir Matthew Hale's argument in Maguire's trial: Orr, Treason and the State, pp. 163-64.
(31) For the status of martial law in Spenser's Ireland see David Edwards, "Ideology and Experience: Spenser's View and Martial Law in Ireland," in Hiram Morgan (ed.), Political Ideology in Ireland, 1541-1641 (Dublin, 1999), pp. 127-57.
(32) A View, p. 159.
(33) Ibid., p. 160.
(34) Ibid., p. 160.
(35) Orr, Treason and the State, pp.73-74, 85-89, 96-97, 143-52; Anthony Milton, "Thomas Wentworth and the Political Thought of the Personal Rule," in J. F. Merritt (ed.), The Political World of Thomas Wentworth, Earl of Stratford, 1621-1641, (Cambridge, 1996), pp. 137-42.
(36) Edmund Spenser (Andrew Hadfield and Willy Maley eds.), A View of the State of Ireland from the first Printed Edition (1633), (first edn Dublin, 1633; Oxford, 1997), pp. 3-4; the dedication is not reproduced in Renwick's critical edition.
(37) Sir John Davies (James P. Myers ed.), A Discovery of the True Causes Why Ireland was Never Entirely Subdued [And] Brought under Obedience of the Crown of England until his Majesty's Happy Reign (first edn Dublin, 1612; Washington DC, 1988).
(38) Davies, A Discovery, p. 76; Andrew Hadfield has argued for a similar link between Bodin's natural law thinking and the theory of political power in Spenser's View; however, the evidence is tenuous and largely circumstantial because, although it is very probable that Spenser did read Bodin, unlike Davies he did not explicitly refer to the Six Bookes, at least not in the View: Hadfield, "Spenser, Ireland, and Political Theory," pp. 10-13; For Bodin on the "True Marks of Soveraignty" see Jean Bodin (trans. Richard Knolles and Kenneth D. McCrae, ed.), Six Bookes of a Commonweale (first edn London, 1606; Cambridge, Massachusetts 1962), Ch. 10.
(39) Davies, A Discovery, p. 76.
(40) Ibid., pp. 81-82, 91-96, 194-95.
(41) Ibid., p. 82.
(42) Bodin, Six Bookes, pp. 159, 162  (irregular pagination (1) Page numbering.
(2) Laying out printed pages, which includes setting up and printing columns, rules and borders. Although pagination is used synonymously with page makeup, the term often refers to the printing of long manuscripts rather than ads and brochures. ).
(43) Eugene Flanagan, "The Anatomy of Jacobean Ireland: Captain Barnaby Rich, Sir John Davies, and the Failure of Reform, 1609-1622," in Hiram Morgan (ed.), Political Ideology in Ireland, 1541-1641 (Dublin, 1999), pp. 168-71.
(44) David J. Baker has also emphasized this point of difference between Spenser and Davies: Baker, Between Nations, p. 118.
(45) Pocock, Ancient Constitution, pp. 32-35, 41; Tubbs, Common Law Mind, Ch. 6.
(46) Burgess, Politics of the Ancient Constitution, Ch. 2.
(47) Davies, Report of Cases, pp. 78-115; see also, Shaunnagh Dorsett, "'Since Time Immemorial': A Story of Common Law Jurisdiction, Native Title, and the Case of Tanistry," Melbourne University Law Review Fondly referred to as 'The Review', the Melbourne University Law Review ('MULR') is one of Australia’s premier generalist law journals and is the University of Melbourne's flagship law journal. , 26 (2002), 32-59.
(48) Davies, A Discovery, pp. 141-42; Davies, Report of Cases, pp. 109, 113.
(49) Davies, A Discovery, pp. 135-36.
(50) Ibid., p. 126.
(51) Ibid., p. 136.
(52) Ibid., p. 164.
(53) Ibid., pp. 135, 165.
(54) Ibid., p. 157.
(55) Ibid., pp. 83, 150.
(56) Ibid., pp. 180-86.
(57) Ibid., pp. 167, 168.
(58) This agenda is perhaps most clearly set out in an early article: Nicholas P. Canny, "The Ideology of English Colonization From Ireland to America," William and Mary Noun 1. William and Mary - joint monarchs of England; William III and Mary II Quarterly 30, third ser. (1973), 575-98; see more recently Nicholas P. Canny, "The Origins of Empire: An Introduction," in Nicholas P. Canny (ed.), The Oxford History of the British Empire, Volume 1, The Origins of Empire (Oxford, 1998), pp. 1-33.
(59) As an example of a sovereignty-centered narrative of Irish history I would suggest either Brendan Bradshaw's, The Irish Constitutional Revolution of the Sixteenth Century (Cambridge, 1979); or more recently Micheal O Siochru's, Confederate Ireland 1642-49: A Constitutional and Political Analysis (Dublin, 1999).
(60) The argument here, therefore, differs substantially from that of Pocock who has offered up Sir John Davies' Discovery as a model for writing a "New" or intercultural history of the British Isles: J.G.A. Pocock, "British History: A Plea for a New Subject," Journal of Modern History 47 (1975), 601-28. My contention is that the model for writing a "British" history lay not with Davies' Discovery but with Sir Edward Coke's report of Calvin's Case in the seventh part of his Reports.
D. Alan Orr