The Gazette 1967/71

More than any other man, Davies was the architect of the great strengthening of the English legal system in Ireland, which marked the reign of James I. Of course, the coming of the common law to our island was further in the past from Davies than he is from us today. But it is only from the early seventeenth century that it became obvious that it was there to stay—common law yers, for example, were prominent in the Catholic opposition later in the century. But there was work of destruction as well as construction awaiting him. The old Irish system of land tenure and succession had to be repudi ated, as it was in the Case of Tanistry and the Case of Gavelkind. No more than his contem poraries could Davies appreciate another civil isation. He belonged fundamentally to what might be called the 'imperial mission' school of colon isers, rather than that which stressed economic advantage to the colonising power. Indeed he criticised sharply those English rulers who thought of Ireland merely as a source of wealth. But his tributes to the Irish love of justice, often quoted, did not mean he thought the Irish could be left to devise their own system of laws. While at work in the legal administration, Davies had also much to do with the general government of Ireland. In 1612 he became M.P. for Fermanagh and was the Government and Protestant candidate for the office of Speaker of the House of Commons in circumstances that add nothing to his reputation. In the same year he produced his greatest book: A discovery of the true causes why Ireland was never subdued until the beginning of His Majesty's happy reign. It has been called 'a masterpiece in English political literature'. The Discovery is marked by shrewd and surprisingly objective judgments and by the masterly use of the great collection of public records, dating back almost four centuries, which Davies found in Dublin when he came there. The great doctrine of Davies was that English attempts to conquer Ireland had failed because the Irish had not been offered equality before the law. He had an unquenchable faith in the superi ority of the legal tradition to which he belonged. His concluding sentence is perhaps the summation of his beliefs about the government of Ireland: 'For, there is no nation of people under

the sun, that doth love equal and indiffer ent justice, better than the Irish; or will rest satisfied with the execution thereof, although it be against themselves; so as they may have the benefit and protection of the Law, when upon just cause they do desire it'. If Sir John Davies the poet rests his fame on The Orchestra and Nosce Teipsum; if the states man and historian is revered for the Discovery; Davies the lawyer is best measured to-day by his Reports. An early seventeenth-century reporter was not like one to-day; he exercised very wide liberties in his presentation of the case and at times it is not easy to distinguish passages in the Reports from mini-treatises slipped in by the re porter. Davies saw that to crown the newly- strengthened common law system and to assist the expanding Irish legal profession regular report ing would be necessary; and he set the example by producing the first-ever Irish Reports. As fie himself pointed out, Ireland had not had, either, the Year Books which for earlier centuries of English lawyers had performed some of the functions of reporting. So, in 1615, he brought out his Reports of eleven major Irish cases from the years 1604 to 1612. In fact, every one of the eleven cases has a 'political aspect: the replacement of native Irish law (Tanistry and Gavelkind); the impact of the Reformation (Dean and Chapter of Ferns, Bastardy, Commenda, Premunire); the property and finan cial rights of the Crown (Proxies, Customs, Mixt Moneys, Bann Fishery, and County Palatine of Wexford). For that was the kind of law in which Davies was interested: plainly, private law had little interest for him. He was very much a law officer of the Crown. Over and over again he brings in Roman Law because by equating the King with the Rowan Emperor the Crown could be exalted. The Reports, quite apart from Sir John's editorial work, bear ample witness to his legal learning and abilities, for he himself had led one side or the other in several of the cases. Not that the collection was confined to what might be called his outright forensic victories: the parties in the Case of Tanistry settled and in the Case of Commenda Davies published his report of the 175