Sir John Davies, the Ancient Constitution, and Civil Law

Abstract

In 1603 Sir John Davies, a Wiltshire lawyer trained at the Middle Temple, travelled to Dublin to assume his duties as solicitor-general for Ireland.His appointment followed the defeat of Tyrone's rebel forces and the final subjugation of the long-recalcitrant kingdom.As one of the principal advocates of English policy during the next sixteen years (solicitor-general, 1603-6, attorney-general, 1606-19), Davies worked to consolidate and perpetuate this military conquest by a series of judicial decisions which transformed the legal and administrative structure of the island.In cases brought before the central law courts in Dublin, Davies' arguments compelled the Irish judiciary to eliminate the Gaelic law and to assimilate the autonomous Gaelic lordships, to reduce corporate liberties and franchises, to impose religious conformity, and to create a national monetary system.In 1615 the attorney-general presented these revolutionary decisions in his publication of the Irish Law Reports. 2 In many of these cases, he had buttressed his arguments with frequent references to the civil and canon laws used in continental legal tribunals.Davies' use of continental law was so extensive as to cast doubt upon the conventional notions of an insular common law mentality put forward by Professor J. G. A. Pocock.In his well-known study, The ancient constitution and feudal law, Pocock asserted: There was no reason why a common lawyer should compare his law with that of Europe except an intellectual curiosity arising and operating outside the everyday needs of his profession.3 This assumption that English lawyers practised their trade in a professional climate devoid of all practical contact with European law is, however, extremely narrow and fails to take into consideration the extent to which common lawyers were exposed to the civil law tradition in the seventeenth century.The major points of contact with foreign legal sources were: the law practised in the numerous non-common law jurisdictions, the legal training at the universities and Inns of Court, the early Stuart political controversies concerning public law, and finally the movement for law reform that began at the end of the sixteenth century.All these influences gave common lawyers considerable exposure to the principles and 1 The research for this article was supported by a fellowship in legal history from the American Bar Foundation during 1976/77 and owes much to the helpful criticism obtained from Professor G. R. Elton and his Tudor seminar, and from Dr Ian Roy and the seventeenth-century seminar at the Institute for Historical Research.2 Sir John Davies, Le primer report des cases in les courts del roy (Dublin, 1615).There is an excellent English translation: A report of cases and matters in law resolved and abridged in the king's courts in Ireland (Dublin, 1762).Hereafter cited as Irish reports.

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