Legal Change in the Sixteenth and Seventeenth Centuries

Law reform in early seventeenth century Ireland arose from the English victory over Hugh O'Neill, the Earl of Tyrone, who led the last great Gaelic uprising during the Nine Years War (1593–1603). This military victory represented a necessary and primary phase in English domination over Ireland, but a second stage of political consolidation by judicial means was equally essential. Of the Crown lawyers laboring to reform Irish administration at the beginning of the seventeenth century, the most important was Sir John Davies, an Oxford-educated Middle-Temple lawyer who also studied briefly with the Dutch civilian Paul Merula at Leyden in the Netherlands.

Davies' Jacobean Irish career as solicitor-general (1603–1606) and attorney-general (1606–1619) left a permanent mark on Irish law, administration, and jurisprudence. This legacy is best evidenced by his Irish Law Reports, which reveal two distinct patterns in cases argued before the central Irish courts. The first is the application of continental jurisprudence, particularly the impact of military conquest, on the laws and customs governing real property in Ireland. The second is the number of cases decided by judicial resolution or collective decision arising from either the Irish or, on at least two occasions, the English judiciaries acting in conclave.

As propounded by Davies, the right of conquest vested England with a public-law title to Ireland. He argued that conquest-right justified eradication of domestic Irish or brehon law since it amounted to little more than a "barbarous and lewd custom" whose only goal was to eliminate all competing foreign or Gaelic claims to Irish dominion. Davies' main objective and most difficult problem was to reconstruct land property rights, especially those held by customary Gaelic tenures derived from political authority other than the Crown.

In what has been described as a lineage or clan-based society, brehon law vested property rights in the corporation of the extended kin group. In practice this meant that individual holdings of land in Gaelic districts were temporary and subject to periodic redistribution, either by what contemporaries referred to as the custom of gavelkind, or by a scheme of succession known as the custom of tanistry. By the term gavelkind, Davies was referring to the distinctive custom of inheritance in Kent, by which lands descended to all legitimate male heirs in equal portions instead of by primogeniture, as was the case in the rest of England. In Ireland and Wales, however, the custom deviated from Kentish practice by excluding women from inheritance and allowing bastard males a share alongside legitimate heirs.

In addition to such temporary rights in land, there also existed in Ireland the custom of tanistry, a scheme of succession whereby the replacement of a chief or king was nominated during the lifetime of the man to be succeeded. The office of tanist usually included lands and other privileges. But Davies and other English jurists employed their own concepts of property to define tanistry as a kind of life trust in land for which there existed no ultimate proprietorship. To assimilate native forms of property and landholding, the Irish judiciary simply invalidated both gavelkind and tanistry by resolution of all the Irish justices. In practice abolition of native custom by judicial fiat meant that prior possession might be respected, but unless accepted as lawful by the sovereign or the judiciary, Irish tenures had no validity against a superior common-law title. In other words, legal sanction by the conquering power was necessary to validate or create rights over real property in Ireland. It was this perception of Gaelic law and society that influenced plantation schemes and laid the foundation for native policy in Ireland during the first decade of the seventeenth century.

That judicial resolutions became a prominent instrument for Irish law reform may surprise some who view the doctrine of precedent as a singularly modern concept. But this orthodox position neglects to take into account a development of great importance in early modern English legal history—the emergence, in England, of the Exchequer Chamber for debate. The Court of Exchequer of course had its own statutory jurisdictions, but as early as the fifteenth century and increasingly during the sixteenth and seventeenth centuries, it appears that difficult matters of law might be referred to the Exchequer Chamber for discussion by all the justices of the King's Bench and Common Pleas, together with the Barons of the Exchequer. When the assembled judiciary had reached agreement, the decision was recorded in a certificate, referred back to the original tribunal, and read before the court. This practice placed the judges in the unique position of reviewing case law to articulate authoritative principles in a manner consistent with a modern doctrine of precedent.

Davies's Irish Law Reports reveal that a similar practice existed in Jacobean Ireland. The reasons are complex, but most likely the absence of a malleable parliament (whose members were still mainly catholic) elevated judge-made law over statute law as the preferred instrument to consolidate the Tudor conquest of the island. The Irish judiciary proscribed the customary Gaelic forms of land tenure and succession by judicial resolution. Soon afterward, the judges applied the same resolutions to invalidate native Irish titles that stood in the way of the Ulster plantation. Other judicial resolutions sought to erode the once privileged position of the Old English and, for the most part, Catholic descendants of those who settled in Ireland before the Reformation. As in the cases voiding the customary forms of Gaelic landholding and descent, the government initiated three judicial resolutions to (1) enforce religious conformity by validating a proclamation extending to Ireland the English penal laws passed by late Elizabethan parliaments; (2) eliminate extensive corporate liberties, including appropriations of customs revenue; and (3) reform the national coinage in ways that eroded Irish trade and commerce. Taken collectively, the effect of these judicial resolutions on cases argued before the courts by Sir John Davies amounted to a wholesale redefinition of the nature of English sovereignty in Ireland.

In trials argued by Davies before the central Irish courts, the cases of gavelkind and tanistry proved the most enduring. During the eighteenth and nineteenth centuries, Davies' Irish legacy occasionally appeared in litigation arising from English claims to distant lands. As early as 1694, William Salkeld, an English sergeant-at-law, reported the case of Blankard vs. Galdy, referred from Jamaica to the King's Bench, in which the justices cited Davies' case of tanistry to define the status of conquered kingdoms. This doctrine provided continuity for both a colonial jurisprudence and a strategy of imperial control over conquered territories. The doctrine was to appear again in an anonymous Chancery case reported by Peer Williams in 1722. According to Williams, conquest-right allowed the English state to impose or modify whatever laws it deemed necessary to govern the conquered territory. Writing later in the century, Sir William Blackstone incorporated the principles set forward by the anonymous case of 1722 in his discussion of overseas plantations and colonies, expanding the doctrine to cover territories acquired by session as well as conquest.

The formula was later corroborated by Sir Frederick Pollock's comments on the "external conquests of the common law," in which English law was seen to regulate the legal systems of India, the Sudan, and other territories within the empire. Indeed, research done on behalf of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) in 1966 strongly suggests that Davies's formula became the basis for defining the status of native law and landholding throughout British overseas possessions. His formula for Ireland—"to give laws to a conquered people is the principal mark of a perfect conquest"—helped establish a paradigm for British expansion elsewhere.

SEE ALSO Brehon Law; Colonial Theory from 1500 to 1690; English Government in Medieval Ireland; Land Settlements from 1500 to 1690; Politics: 1500 to 1690; Primary Documents: From A Discovery of the True Causes Why Ireland Was Never Entirely Subdued (1612)

Bibliography

Davies, Sir John. Le Primer report des cases & matters en ley resolves & adiudges en les Courts del Roy en Ireland. 1615. Translated as A Report of Cases and Matters in Law Resolved and Adjudged in the King's Courts in Ireland. 1762.

A Discovery of the True Causes Why Ireland Was Never Subdued Nor Brought under Obedience of the Crown of England. 1612.

McCavitt, J. "'Good Planets in Their Several Spheares': The Establishment of the Assize Courts in Early Seventeenth-Century Ireland." Irish Jurist (1994): 248–278.

Pawlisch, Hans S. Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism. 1985.

Hans S. Pawlisch