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Published online by Cambridge University Press: 04 June 2020
Seventeenth-century English common lawyer Sir John Davies sets forth, in his Irish Reports, a provocative and interesting argument on the nature of custom and its relation to the common law. This relatively unexplored argument shows how actions may emerge from conditions of liberty and slowly acquire qualities of social benefit and agreeability that are essential if the common law is to be identified with custom. Davies not only provides a coherent account of how custom might possess some reasonability, but he also seems to suggest that custom is unintended, thereby anticipating a theme found in eighteenth-century thinkers such as Mandeville, Hume, Ferguson, and Burke. In addition, Davies's account has important implications for political theory: the priority of the social over the political and a notion of political consent that arises via custom itself.
Some research for this essay was undertaken during a fellowship at the Institute for Advanced Studies in the Humanities, University of Edinburgh. I thank Reva Wolf for helpful comments on earlier versions; Ruth Abbey for her astute suggestions, both stylistic and substantive; and three anonymous reviewers for constructive comments.
1 The Reports originally appeared in French, Law as Le Primer Report des cases and Matters en Ley, Resolues and Ajiudges en les Courts del Roy en Ireland (Dublin: John Franckton, 1615)Google Scholar, with an unpaginated English-language Preface dedicated to Lord Ellesmere, the lord chancellor of England. A paginated version of the same Preface may be found in a later edition, A Report of Cases and Matters in Law Resolved and Adjudged in the King's Courts in Ireland (Dublin: Sarah Cotter, 1762)Google Scholar. Hereinafter, references to the Preface will refer to this 1762 edition, to be cited as “Preface, A Report of Cases.”
2 See, for example, Pawlisch, Hans W., “Sir John Davies, the Ancient Constitution, and Civil Law,” Historical Journal 23, no. 3 (1980): 689–702CrossRefGoogle Scholar; this article forms the ninth chapter of Pawlisch's volume, Sir John Davies and the Conquest of Ireland (Cambridge: Cambridge University Press, 1985)Google Scholar. See also Tubbs, J. W., “Custom, Time and Reason: Early Seventeenth-Century Conceptions of the Common Law,” History of Political Thought 19, no. 3 (Autumn 1998): 363–406Google Scholar, and, in particular, The Common Law Mind: Medieval and Early Modern Conceptions (Baltimore, MD: Johns Hopkins University Press, 2000)Google Scholar. And see Goldsworthy, Jeffrey, “The Myth of the Common Law Constitution,” in Common Law Theory, ed. Edlin, Douglas E. (New York: Cambridge University Press, 2007), 204–35CrossRefGoogle Scholar, and Smith, David Chan, Sir Edward Coke and the Reformation of the Laws (Cambridge: Cambridge University Press, 2014)CrossRefGoogle Scholar.
3 Pocock, J. G. A., The Ancient Constitution and the Feudal Law (New York: Cambridge University Press, 1957)Google Scholar. The titles of the second and third chapters incorporate the phrase “common-law mind,” which Pocock later, in his retrospective edition, refers to as a mentalité. See The Ancient Constitution and the Feudal Law: A Reissue with a Retrospect (New York: Cambridge University Press, 1987), esp. 255–305Google Scholar. Henceforth, all citations will be to the 1987 edition.
4 Pocock, Ancient Constitution, 36.
5 Cromartie, Alan, Sir Matthew Hale 1609–1676: Law, Religion and Natural Philosophy (Cambridge: Cambridge University Press, 1995), esp. 12–13CrossRefGoogle Scholar; and Tubbs, “Custom, Time and Reason” and The Common Law Mind, 130.
6 Pawlisch, “Sir John Davies, the Ancient Constitution, and Civil Law.” On Pawlisch's claim, see note 17, below.
7 Pawlisch, Sir John Davies and the Conquest of Ireland, 35.
8 For example, see Postema, Gerald J., Bentham and the Common Law Tradition (Oxford: Clarendon, 1986)Google Scholar; Burgess, Glenn, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–1642 (University Park: Pennsylvania State University Press, 1992)CrossRefGoogle Scholar. Paul Christianson notes, more particularly, how Davies's conception of the common law is similar to that of Hedley, Sir Thomas, in “Ancient Constitutions in the Age of Sir Edward Coke and John Selden,” in The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, ed. Sandoz, Ellis (Columbia: University of Missouri Press, 1993), 107Google Scholar.
9 Smith, Sir Edward Coke, e.g. 161–62.
10 Kelley, Donald R., “‘Second Nature’: The Idea of Custom in European Law, Society, and Culture,” in The Transmission of Culture in Early Modern Europe, ed. Grafton, Anthony and Blair, Ann (Philadelphia: University of Pennsylvania Press, 1990), 131–72Google Scholar; Murphy, James Bernard “Nature, Custom, and Stipulation in Law and Jurisprudence,” Review of Metaphysics 43 (June 1990): 751–90Google Scholar; and see the more recent collection The Nature of Customary Law, ed. Perreau-Saussine, Amanda and Murphy, James Bernard (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar, especially the essays of Frederick Schauer, James Bernard Murphy, and Alan Cromartie.
11 Wood, Andy, The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge: Cambridge University Press, 2013)CrossRefGoogle Scholar. I thank an anonymous referee for bringing this book to my attention.
12 An insight that Glenn Burgess records in relation to interpretations of the thought of Sir Edward Coke on Bonham's Case (1610). See Absolute Monarchy and the Stuart Constitution (New Haven, CT: Yale University Press, 1996), 186Google Scholar.
13 As Boyer, Allen D. puts it, “Coke's belief in custom was essentially skin-deep. . . . He did not work out (as Davies did) a true theory of common law as customary law” (Sir Edward Coke and the Elizabethan Age [Stanford: Stanford University Press, 2003], 87)Google Scholar.
14 By the early seventeenth century, common law judges were increasingly determining which conditions or criteria could be invoked to disallow a custom. See Smith, Sir Edward Coke, 161–67.
15 Pocock has been criticized for having isolated one passage in Davies's Preface, thereby misrepresenting Davies's overall outlook. See Pawlisch, “Sir John Davies, the Ancient Constitution, and Civil Law,” 695.
16 Both oral and printed sources were included within common law cases but the identity and implications of a custom rested in the memory of jurors. See Smith, Sir Edward Coke, 146.
17 The common law is “far more apt and agreeable then the Civil or Canon Law, or any other written Law in the world besides” (Preface, A Report of Cases, 5). Pawlisch claims that Davies utilizes in his jurisprudence both civil and canon law. However, these appeals are, in my estimate, often designed to facilitate or support a decision, not to determine it. See Pawlisch, “Sir John Davies, the Ancient Constitution, and Civil Law,” 698–700.
18 Tubbs, Common Law Mind, 130.
19 Preface, A Report of Cases, 3–4 (all italics are original). Any subsequent quotation from this three-paragraph passage will come from these pages but not be otherwise cited.
20 Wood, Memory of the People, 133–34.
21 See Lewis, David, Convention (Cambridge, MA: Harvard University Press, 1969), esp. 78Google Scholar, and Marmor, Andrei, Social Conventions: From Language to Law (Princeton, NJ: Princeton University Press, 2009), esp. 2CrossRefGoogle Scholar.
22 Davies does not ignore completely the role of the judge: the law, he says, must be applied, just as the “best Lute” requires “the learned hand of the Lute-player” (Preface, A Report of Cases, 24). For Coke's perspective, see The First Part of the Institutes of the Laws of England (1628), 2 vols. (London: Clarke, 1832; repr., New York: Garland, 1979), vol. 1, 97bGoogle Scholar. On Coke's notion of an “artificial perfection of reason,” see Gray, Charles M., “Further Reflections on ‘Artificial Reason,’” in Culture and Politics from Puritanism to the Enlightenment, ed. Zagorin, Perez (Berkeley: University of California Press, 1980), 121–26Google Scholar; Stoner, James R., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Lawrence: University Press of Kansas, 1992), 22–26Google Scholar; Burgess, Absolute Monarchy and the Stuart Constitution, 168–69; Boyer, Sir Edward Coke and the Elizabethan Age, chap. 7; Tubbs, Common Law Mind, 162–67; and Smith, Sir Edward Coke, 153–56.
23 For Coke, the common law does not tolerate changes that run counter to the established law: “the wisdome of the judges and sages of the law have always suppressed new and subtile inventions in derogation of the common law” (The First Part of the Institutes of the Laws of England, vol. 2, 282b; see also 379b). J. H. Baker points out that, as a matter of fact, Coke was one of the “greatest judicial innovators in the history of English law” (Baker, , “Funeral Monuments and the Heir,” in The Common Law Tradition: Lawyers, Books and the Law [London: Hambledon, 2000], 352Google Scholar).
24 Fortescue, John, De Laudibus Legum Anglie (London: Streater, Flesher, and Twyford, 1672), chap. xv, 24Google Scholar.
25 Thomas Hedley, speech in Parliament, June 28, 1610, in Proceedings in Parliament, 1610, ed. Foster, Elizabeth Read (New Haven, CT: Yale University Press, 1966), 2:175Google Scholar.
26 Ibid.
27 Ibid., 2:178–79.
28 “For as the next heir of the lord or chieftain was not to inherit the chiefry, but the oldest and worthiest of the sept [clan], (as is shewn before in the case of tanistry) who was often removed and expelled by another, who was more active and strong than he” (A Report of Cases, 135).
29 Ibid., 78 and 86.
30 Ibid., 87.
31 Ibid., 25.
32 Ibid., 88.
33 Ibid.
34 Ibid. 89.
35 Ibid., 89 and 90.
36 Ibid., 94.
37 In another passage Davies refers to another possible background condition for good customs, namely, “a vertuous and wise people”: “England . . . hath been inhabited alwaies with a vertuous and wise people, who ever embraced honest and good Customes, full of reason and conveniencie” (Preface, A Report of Cases, 5). Presumably Davies offers here a retrospective judgment based on his valorization of English customs.
38 A Report of Cases, 87.
39 Preface, A Report of Cases, 4.
40 Ibid., 22.
41 As Wood notes, “much of customary law was about the careful husbanding and preservation of scant resources,” including those held in common (Memory of the People, 105).
42 The custom of gavelkind, at least in Ireland, involved a method of land disbursement that basically eliminated any sense of property ownership. The population was divided into septs or clans, each with a chief who distributed property among the adult males of the sept. When any one of these died, the land was re-distributed by the chief, thus rendering any family's estate “but a temporary or transitory possession” (A Report of Cases, 134).
43 Davies, John, A Discoverie of the True Causes Why Ireland Was Never Entirely Subdued, Nor Brought under Obedience of the Crowne of England, untill the Beginning of His Maiesties Happie Raigne (London: Millar, 1747, 1612), 178Google Scholar.
44 A Report of Cases, 94.
45 Davies, A Discoverie of the True Causes, 170.
46 Ibid., 168.
47 Hume, David, The History of England (Indianapolis, IN: Liberty Fund, 1983 [1778]), 5:47Google Scholar.
48 Millar, John, An Historical View of the English Government, ed. Phillips, Mark Salber and Smith, Dale R. (Indianapolis, IN: Liberty Fund, 2006 [1787]), 4:672 and 674Google Scholar, respectively. The divergent judgments of Hume and Millar have not, to my knowledge, been the subject of scholarly inquiry.
49 In the closing lines of his account of the English conquest, Davies makes plain his belief that the English delivered to Ireland the institutions of natural law justice and the common law (A Discoverie of the True Causes, 283).
50 Pawlisch, Sir John Davies and the Conquest of Ireland, sets forth, in some detail, Davies's jurisprudential labors on behalf of English imperial ambitions.
51 Davies, A Discoverie of the True Causes, 111–14. See Pawlisch's discussion at Sir John Davies and the Conquest of Ireland, 9–11.
52 Davies, A Discoverie of the True Causes, 115–19 (and see 144–45).
53 On a filtering versus an equilibrating process, see Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 21Google Scholar.
54 Kelley, “ ‘Second Nature,’ ” 132.
55 Hume, David, A Treatise of Human Nature, ed. Selby-Bigge, L. A., rev. Nidditch, P. H. (Oxford: Clarendon, 1978 [1739–40])Google Scholar, III.II.ii (490, italics original).
56 Gerald Postema suggests that Hume's account of the conventions of justice may be understood as “a revision and extension” of ideas of the common law, though he does not “wish to overstate the claim” (Postema, , Bentham and the Common Law Tradition [Oxford: Clarendon, 1986], 88Google Scholar). However, McArthur, Neil, “David Hume and the Common Law of England,” Journal of Scottish Philosophy 3, no. 1 (2005): 67–82CrossRefGoogle Scholar, suggests that Hume diverges from the common lawyers on important points.
57 See “The Third Dialogue,” in Mandeville, The Fable of the Bees or Private Vices, Publick Benefits, ed. Kaye, F. B., vol. 2 (Indianapolis, IN: Liberty Fund, 1988)Google Scholar. See also Heath, Eugene, “‘Carrying Matters Too Far?’: Mandeville and the Eighteenth-Century Scots on the Evolution of Morals,” Journal of Scottish Philosophy 12, no. 1 (2014): 95–118CrossRefGoogle Scholar. For a recent examination of the possible influence of Matthew Hale on Mandeville, see Simonazzi, Mauro, “Common Law, Mandeville, and the Scottish Enlightenment: At the Origin of the Evolutionary Theory of Historical Development,” Storia del Pensiero Politico, no. 1 (January–April 2018): 107–26Google Scholar.
58 Forbes, Duncan, Hume's Philosophical Politics (Cambridge: Cambridge University Press, 1975), 18Google Scholar. In his excellent study Hume: An Intellectual Biography (New York: Cambridge University Press, 2015Google Scholar), James A. Harris does not consider the common lawyers, but he does delineate the formative role of Mandeville on Hume's thinking.
59 Hume, A Treatise of Human Nature, III.II.ii (490); III.II.iii, note 1 (504).
60 Pocock describes Hume, in his History of England, as recognizing in Davies's account of Ireland a “‘philosophical history’ in the Scottish Enlightenment's sense” (Pocock, Ancient Constitution, 263).
61 Dugald Stewart, Account of the Life and Writings of Adam Smith, ed. Ross, I. S., in Essays on Philosophical Subjects, by Smith, Adam, ed. Wightman, W. P. D. and Bryce, J. C. (Indianapolis, IN: Liberty Fund, 1982), 292Google Scholar.
62 Ferguson, Adam, An Essay on the History of Civil Society, ed. Oz-Salzberger, Fania (Cambridge: Cambridge University Press, 1995 [1767])Google Scholar. See also Hill, Lisa, The Passionate Society: The Social, Political and Moral Thought of Adam Ferguson (Dordrecht: Springer, 2006)Google Scholar; Heath, Eugene, “Ferguson on the Unintended Emergence of Social Order,” in Adam Ferguson: Philosophy, Politics and Society, ed. Heath, Eugene and Merolle, Vincenzo (London: Pickering & Chatto, 2009), 155–68Google Scholar.
63 Millar, John, The Origin of the Distinction of Ranks, ed. Garrett, Aaron (Indianapolis, IN: Liberty Fund, 2006 [1771]), 89–90Google Scholar.
64 Mandeville, The Fable of the Bees, 2:142.
65 Ferguson, Essay on the History of Civil Society, 120.
66 Descartes, , Discourse on the Method of Rightly Conducting the Reason (1637), in The Philosophical Works of Descartes, trans. Haldane, Elisabeth and Ross, G. R. T., 2 vols. (Cambridge: Cambridge University Press, 1973), Part II, 88Google Scholar; and Ferguson, Essay on the History of Civil Society, 121. Millar contends the same in Origin of the Distinction of Ranks, 86–87.
67 Burke mentions, specifically, Sir Edward Coke in Reflections on the Revolution in France (1790), in Select Works of Edmund Burke (Indianapolis, IN: Liberty Fund, 1999), 2:119Google Scholar. See also Pocock, , “Burke and the Ancient Constitution: A Problem in the History of Ideas,” in Politics, Language and Time: Essays on Political Thought and History (New York: Atheneum, 1971), 202–32Google Scholar, and Berman, Harold J., “The Origins of Historical Jurisprudence: Coke, Selden, Hale,” Yale Law Journal 103 (1994): 1651–1738CrossRefGoogle Scholar.
68 Burke, Reflections on the Revolution in France, 182.
69 On Hume and Millar's knowledge of Davies, see the second section, above. In the case of Adam Smith, things become more speculative, though he had clearly read some of the common lawyers. Student notes taken in Smith's moral philosophy class at the University of Glasgow in 1762–63 and 1763–64 suggest Smith's use of illustrations from Matthew Hale's History of the Pleas of the Crown. See Smith, Adam, Lectures on Jurisprudence, ed. Meek, R. L., Raphael, D. D., and Stein, P. G. (Indianapolis, IN: Liberty Fund, 1982), e.g. 110–12Google Scholar. Smith's personal library included Hale's History, as well as Coke's Institutes. See Mizuta, Hiroshi, Adam Smith's Library: A Supplement to Bonar's Catalogue with a Checklist of the Whole Library (Cambridge: Cambridge University Press, 1967), 26 and 82Google Scholar.
70 Preface, A Report of Cases, 5.
71 Ibid., 11.
72 Davies's comparison between a lawmaker's knowledge and that achieved through “Triall or Probation” has a contemporary analog—the distinction between “ecological” and “constructivist” rationality. See Smith, Vernon L., Rationality in Economics: Constructivist and Ecological Forms (Cambridge: Cambridge University Press, 2008), esp. chaps. 1–2Google Scholar, which draws on the work of Hayek, F. A.; and Hayek, Law, Legislation, and Liberty, vol. 1, Rules and Order (Chicago: University of Chicago Press, 1973)Google Scholar.
73 “Certain it is that Law is nothing but a Rule of Reason, and humane Reason is Lesbia Regula, pliable in every way” (Preface, A Report of Cases, 9). Aristotle refers to the Lesbian rule in Nicomachean Ethics 1137b28–32.
74 Burke, Reflections on the Revolution in France, 193.
75 Preface, A Report of Cases, 6.
76 In The Memory of the People, Wood attends to how customs reflected inequalities of power, wealth, class, or gender yet sometimes served as an “integrative” force (120) or as an avenue for agency (e.g. 289).