Sir John Davies' Law Reports and the Consolidation of the Tudor Conquest of Ireland

This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Sir John Davies' law reports and the consolidation of the Tudor conquest of Ireland. Pawlisch, H S The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 23. Sep. 2021 SIR JOHN DAVIES' LAW REPORTS AND THE CONSOLIOATION OF THE TUOOR CONQUEST OF IRELAND by HANS SCOTT PAWLISCH in the Department of History King's College, The University of London for the Degree of-Doctor of Philosophy March 1981 \\N1 v. I. ABSTRACT The story of the English advent in Ireland during the sixteenth century has been well told by many historians. What has not been emphasized is the role played by English law in making the conquest of that country endure. Following the end of the Nine Years War English law became, in the hands of Sir John Davies (Solicitor-General, 1603-06, Attorney-General, 1606-1619), the single most important agency of colonial development in Ireland. More than any other English administrator, Davies realized that military force in itself did not constitute an adequate instrument to facilitate the economic and social development of the newly conquered kingdom. To discover the salient role played by English law as an agency of early seventeenth-century colonialism, this thesis examines Sir John Davies' Law Reports and the role of judge-made law in transforming the legal, administrative and economic structure of Ireland during the early seventeenth century. In part I, chapter one sketches out Davies' career as the necessary biographical setting to discuss, in chapter two, the structure and content of his Law Reports and the use of judge-made law to achieve major legal and administrative reforms. In Part II, which focuses on the native community, chapter three details the role of the English judiciary in Dublin in assimilating Gaelic land tenures while chapter four explores the legal mechanisms employed to sequester the richest fishery in Ulster as an incentive to attract private capital to the plantation of Ulster. 2. Part III concentrates on the colonial community and lays out the consequences of the Tudor conquest for the Old English. Chapter five discusses the use of religious persecution in the courts to erode the privileged status and influence of the colonial community while chapter six explores the use of judge-made law to deprive the Old English towns of their considerable liberties and franchises acquired during previous reigns. Chapter seven details the attempts by the judiciary to reform the Irish currency as a means to place the burden of the war debt on the shoulders of the colonial community. In Part IV, the concluding chapter examines Davies' use of argument from Roman law in providing the necessary precedents and legal principles to consolidate and perpetuate the Tudor conquest of Ireland. 3. TABLE OF CONTENTS Page PART I: Introduction 6 Chapter 1: - Sir John Davies: A Biographical SKetch 7 Chapter 2: Ireland and the Origins of Stare. Decisis 38 PART II: Judicial Encounters: The Native Community 67 Chapter 3: The Cases of Gavelkind and Tanistry: Legal Imperialism in Ireland, 1603-1610 68 Chapter 4: The Case of the Bann Fishery 114 PART III: Judicial Encounters: The Colonial Community 140 Chapter 5: The Mandates Controversy the Case and of 141 Robert Lalor Chapter 6: The Case of Customs- Payable for Merchandize 169 Chapter 7: The Case of Mixed Money 199 PART IV: Conclusion 224 Chapter 8: Sir John Davies, The Ancient Constitution and Civil Law 225 BIBLIOGRAPHY 251 4. TABLE OF ABBREVIATIONS AJLH - American Journal of Legal History An.. Hib. Analecta Hibernica Arch. Hib. Archivium Hibernicum BIHR - Bulletin of the Institute -6f, Historical Research BL British Library BNJ British Numismatic Journal Bodl. - Bodleian Library, Oxford C- Code of the Corpus Iuris Civilis Cal. Car. - Calendar of the Carew Manuscripts Preserved in the Archepiscopal Library at Lambeth, London, 1867-73 CLJ Cambridge Law Journal CSPD Calendar of State Papers Domestic Series, London, 1860-1911 CSPI Calendar of State Papers, Ireland, London, 1860-1911 CUL Cambridge University Library 0- Digest of the Corpus Iuris Civ .ilis ONB - Dictionary of National Biography, 23 vols., London, 1909 EHR - English Historical Review ErcK - J. C. ErcK, ed., A Repertory of the Inrolments on the Patent Rolls of Chancery in Ireland, Dublin, 1864 Griffith - M. C. Griffith, ed., Irish Patent Rolls of James I: Facsimile of the Irish Record Commissioners' Calendar Prepared Prior to 1830, Dublin, 1966 HJ Historical Journal HLQ Huntinjon Library Quarterly HMC Historical Manuscript Commission Reports IER-- Irish Ecclesiastical Record iHS - Irish Historical Studies S. Inst. - Institutes of the Corpus Iuris Civilis Lam. Pal. - Lambeth Palace Library L&P Hen. VIII - Letters and Papers, Foreign and Domestic, Henry VIII 21 Vols., London, 1862-1932 LQR - Law Quarterly Review Morley - Henry Morely, ed., Ireland under Elizabeth and James I, Described byEdmund Spenser,. by Sir John Davies and by Fynes Moryson, London, 0. MTR - C. H. Hopwood, ed., Middle Temple Records, London, 1904 NIL! Q Northern Ireland Legal Quarterly NLI - National Library of Ireland NYULR - New YorK University Law Review P&P- Past and Present PRO Public Record Office, London PROI Public Record Office of Ireland, Dublin PRONI Public Record Office of Northern Ireland, Belfast RIA, Proc., - Proceedings of the Royal Irish Academy RSAI - Journal of the Royal Society of Antiquaries of Ireland SHR - Scottish Historical Review TCD - Trinity College Dublin TRHS - Transactions of The Royal Historical Society UJA - Ulster Journal of Archaeology B. PART INTRODUCTIOa 7. 1 SIR JOHN DAVIES: A BIOGRAPHICAL SKETCH As a minor figure in late Elizabethan literary society, Sir John Davies' main attraction for scholars has been his reputation as a poet and a man of letters. Since the appearance of Alexander Grosart's edition of Davies' prose and poetry in 1869, historians have concentrated almost exclusively on the links between Davies' upward mobility in Jacobean society and literary patronage arising from his major poems, 2 Orchestra, Hymns to Astrea and Nosce Teipsum Whilst the poetry doubtless played a role in gaining Davies access to influential circles at court, current scholarship has strangely neglected his more important professional career. Between the appearance of the last poems in 1602 With the exception of a few details, this biographical sKetch follows closely upon a path laid down by others. Nonetheless as a synthesis of more recent studies, this chapter differs considerably in emphasis from any previous worK., There is a mammoth literature on Davies, particularly with respect to his literary career. For a complete bibliography see: James L. Sanderson, 'Recent Studies in Sir John Davies', English Literary Renaissance 4 (1974) pp. 411-417; The present-account owes much to R. Krueger, The Poems of Sir John Davies, (Oxford, 1975) pp. xxiii-xlvii; J. R. BrinK, 'Sir John Davies: His Life and Major WorKs', (University of Wisconsin: Unpublished thesis, 1972) pp. 8-82; T. J. Childs, 'An Edition of 'Nosce Teipsum' by Sir John Davies with An Introductory Account of His WorK', (Oxford: Unpublished thesis, 1939) pp. 1-109; Margaret Seeman, Sir John Davies Sein Leben und Seine Werke, (Wien und Leipzig, 1913); C. Litton FalKiner, Essays Relating to Ireland, (Landon,, 1909)-pp. 32-55; G. J. Hand 'Sir John Davies, 1569-16261, Gazette of the Incorporated Law Society Ireland, 64 (1971) 174-177. Roemer, 'Notes of pp. -Mary--Von On the Descendants of Edward, Combe, of Bridsor in Tisbury'. Wiltshire Notes and Queries, 8(1917-16) pp. 63-73. 2. These poems, with the rest of Davies' poetic worKs are featured in R. Krueger, op. cit., pp. 1-126. 8. and his appointment as Chief Justice of the English Court of King's Bench in 1626, Davies served as one of the major legal officials in Ireland during the period of the consolidation of the Tudor conquest of that Kingdom. Publication of his Irish Law Reports in 1615 demonstrated Davies' own personal achievement, as Irish Attorney General, in securing the transformation of the island from an economic and strategic liability to a self-sustaining appendage of the English crown. Neglect of this important chapter of Irish legal history has left an enormous gap that can only be remedied by re-examining Davies' life against the bacKdrop of his Irish career. For a more balanced view we must reduce the theme of literary patronage to its proper perspective by emphasizing the jurisprudential aspects of a career that elevated the third son of a Wiltshire tanner to an appointment as Chief Justice of the, King's Bench in England. Davies was born in Tisbury, Wiltshire and christened in the parish church on 16 April 1569.

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