Kingship constituted the primary political discourse in seventeenth-century Ireland, whether that discourse took place among the half-starved rioters who roamed Ulster in 1641 or among the sleek nobles and gentlemen who welcomed the lord lieutenant to Kilkenny in 1649. Ireland was not exceptional in this; the same was true in Scotland and England. Preliminary treatments of the seventeenth-century discourse of king and kingdom in Ireland have revealed concepts and concerns substantially similar to those of early modern Scotland, resting on the international and trans-confessional foundations of humanism and scholastic philosophy.Footnote 1 However, historians have struggled to settle the question of the relationship between the English common law, the ancient constitution apparently derived from it, and political discourse elsewhere in Europe.Footnote 2 This article will attempt to open this problem up to a view from Galway, St Malo, and Rome. By adopting an approach analogous to that of the ‘new British history’, it will propose that Aristotelianism and anti-Aristotelianism provide a basic interpretative framework for all three kingdoms.Footnote 3
The papal bureaucrat Richard O'Ferrall and John Lynch, Catholic archdeacon of Tuam, fought an intense book-battle between 1658 and 1667.Footnote 4 O'Ferrall offered his Roman patrons an ancient constitution for Ireland which incorporated a contract between the English kings and the pope. Since that contract had been broken by royal heresy, O'Ferrall wrote, the kingdom now reverted to the pope and was his to bestow on a suitable Catholic prince. The archdeacon, staunch for the Stuarts, did not quibble with the details of O'Ferrall's argument. Rather, he employed the anti-Aristotelian sovereignty theory of Jean Bodin and Sir John Davies to uproot completely the constitution which the Capuchin had described. Lynch, a generally conservative churchman committed to traditional humanism and the Aristotelian virtues, was thus driven to experiment with anti-Aristotelian doctrines in order to refute an opponent drawing on a highly esteemed historical tradition: in this he was a typically eclectic late seventeenth-century political writer.Footnote 5 The threat of O'Ferrall's treason, as Lynch saw it, and the uselessness of the Old English parliamentary tradition by the 1660s, even caused the archdeacon to embrace the champion of the New English Protestants, Sir John Davies, and the controversial parliament of 1613. Most importantly, a close reading of the debate between Lynch and O'Ferrall suggests that ancient constitution discourse itself was fundamentally Aristotelian.
I
On 5 March 1658, O'Ferrall submitted a report on Irish affairs to the secretary of the congregation Propaganda Fide, the committee of cardinals charged with the evangelization of Protestant Europe and the wider non-Catholic world.Footnote 6 This report was a radical proposal for a reconstituted Irish church which would exclude those Irish Catholics of English descent, the Old English, from all authority.Footnote 7 As an instance of Old English wickedness, O'Ferrall offered their support for the illegitimate Stuart claim to Ireland. The report was leaked by his Italian superiors, who wished to be rid of the strident Capuchin, and caused uproar in the Irish church in exile. Moreover, O'Ferrall's attack on the Stuart right to Ireland earned the papacy a sharp protest from the royalist court in the Low Countries, probably composed by Edward Hyde, later earl of Clarendon.Footnote 8
Before 1658, O'Ferrall had lived at the cutting edge of the church militant.Footnote 9 A Gaelic Irish nobleman who took the Capuchin habit late in life, he trained at Lille, Douai, and Charleville. O'Ferrall remained in France during the Ulster rebellion of 1641 and the foundation of the Catholic Confederation in 1642. He returned to Ireland in 1644, initially working to turn Ormond's Catholic troops to the confederate side, and later becoming superior of the Capuchin convent at Galway. While at Galway, he joined the circle of GianBattista Rinuccini, archbishop and prince of Fermo, and nuncio apostolic to the confederate Catholics of Ireland.Footnote 10 When Rinuccini excommunicated the supreme council of the confederation in 1648 for signing a ceasefire with the Irish Protestants, he sent O'Ferrall and other key servants to Rome to defend his actions. This was a role in which O'Ferrall excelled, and the Capuchin was quickly appointed expert witness to the congregation propaganda fide. When O'Ferrall fell from favour in 1658, he sought shelter under Rinuccini patronage in Florence where he composed the massive Commentarius Rinuccinianus with the help of his confrère Robert O'Connell. Finished in 1666, three years after O'Ferrall's death, this manuscript Latin history of Rinuccini's nunciature sought, through thousands of documents transcribed and translated from Rinuccini's papers, to convince its reader that the nuncio had been right in the 1640s and his confederate opponents wrong. This was set in a remarkable new narrative of Irish history which united a vision of Gaelic Irish blood-purity with the most militant Tridentine Catholicism. O'Ferrall's 1658 report was a preliminary sketch for the Commentarius.
What exactly was this Irish kingdom described by O'Ferrall and disputed by Lynch? A kingdom was a political community whose ruler was distinguished from other magistrates by his special relationship with God.Footnote 11 As far as the English common law was concerned, Ireland had been a kingdom since the Irish parliament passed the Kingship Act in June 1541.Footnote 12 Before that the English kings had merely been lords of Ireland, which title they owed to Pope Adrian IV's bull Laudabiliter of 1155. Adrian had charged King Henry II with the reform of the Irish church which he believed to be in a barbarous state, and with the church came the lordship. This story of papal grant, royal ecclesiastical responsibility, and English conquest became an essential part of Englishness in Ireland. Laudabiliter itself could be read in the Expugnatio Hibernica, composed by Gerald of Wales in the twelfth century and widely copied and read thereafter.Footnote 13 Then, in its 1536–7 session, the Irish parliament recognized Henry VIII as supreme head of the Irish church. Thus, while the primary aim of the 1541 act seems to have been the reconciliation of the Gaelic Irish to Tudor government, it had the added purpose of excising that now-anomalous papal grant from Irish political culture.Footnote 14 The ambitious intentions and strategies of the Tudor reform, of which the act was a part, were halted both by English political instability, insufficient war-making capacity, and the process of confessionalization among the Irish themselves.Footnote 15 Nevertheless, the language and concepts of the most potent political ideology in Europe had been planted in Irish soil, and they flourished.Footnote 16 This meant that both the Gaelic Irish and Old English, now Catholics, were faced with the monstrous problem that their king, who united in himself both the spiritual and the secular, was a heretic.Footnote 17
The intersection of these concerns about church, kingdom, and king rendered O'Ferrall's report explosive. All the more so, since the Capuchin evidently regarded Christian kingship as ultimately subordinate to papal power. In his account, 181 paramount Gaelic kings had governed Ireland since the arrival of the three sons of Míl in Ireland 2,500 years ago.Footnote 18 St Patrick converted the island to the Catholic faith in 431, and became the first archbishop of Armagh and first primate of Ireland. O'Ferrall insisted that the succession of archbishops and primates had continued unbroken to the present day, and that these primates ‘were established as arbiters of all business of greater importance by the kings, magnates, and clergy’.Footnote 19 So Catholic were the Irish kings, and so devoted to the papacy, that they gladly paid Peter's Pence, endowed churches, cathedrals and monasteries with most of their lands, and even in the end presented the royal crown to the pope.Footnote 20
O'Ferrall then turned to the Laudabiliter question and the problem of English royal title to Ireland, devoting a long opaque paragraph to the circumstances in which Henry II came to possess Ireland.Footnote 21 Without reminding his reader that the Irish crown was now the pope's to grant, O'Ferrall first argued that Henry had requested the grant of the country under false pretences, as the Irish church had not fallen into paganism as a result of Viking raids and persecution. In fact, O'Ferrall wrote, the Irish church was firmly supported by its hierarchy and ornamented by a great many saints throughout the Twelfth Century. It was also obedient to Rome, and held a great reforming synod at Kells in 1152. O'Ferrall then moved uneasily and with some obfuscation to his second point, which was that such a papal grant could be of no effect because contrary to natural law, although he surrounded this allegation with a thick hedge of rhetorical questions and ungrammatical subjunctives.Footnote 22 Even O'Ferrall, committed to the highest doctrines of papal power, could not tolerate the idea that the Irish church had been fundamentally, essentially damaged by the Viking invasions.
O'Ferrall's Latin recovered its usual blunt clarity in the next paragraph, as he treated the reigns of the medieval English kings over the Irish. Whether Laudabiliter was obtained under false pretences, or whether it was in fact a simple forgery, there could be no doubt that ‘the conditions that were expressed in it and accepted by Henry were violated by himself and his successors’, crushing Ireland's ‘doctrine, holiness, and religion’.Footnote 23 O'Ferrall went on to describe the English kings' attacks on the Irish clergy, their demand that bishops surrender to them in temporalities, and their appointment of politique foreigners to the hierarchy.Footnote 24
Henry VIII's turn to heresy only put the final tyrannous seal on 400 years of illegitimate government. The title of the English kings was illegitimate both because they had broken the conditions of Laudabiliter, and because they had persecuted the church endangering the souls of the Irish people, which enabled the pope's power to depose rulers. According to O'Ferrall, the Kingship Act of 1541 was not part of a sophisticated reform programme popular across all Irish elites, but rather a heretical king's grab at church property, assisted by greedy Irishmen of English descent.Footnote 25
O'Ferrall's 1658 report was in fact a highly compressed synthesis of a large body of politically charged Irish history writing, composed by both Old English and Gaelic Irish authors. James Murray has argued that the Old English of Dublin made use of a historical-political argument based on Laudabiliter to resist Tudor religious reform in the late sixteenth century.Footnote 26 Patrick Darcy's Argument, printed in 1645, was a defence of the Old English medieval parliamentary tradition in the style of Sir Edward Coke.Footnote 27 Breandán Ó Buachalla has described a historical-political tradition which included Conell Mageoghan's Annals of Clonmacnoise written in 1627, Míchéal Ó Cléirigh's Annála ríoghachta Éireann compiled between 1632 and 1636, and Geoffrey Keating's Foras feasa ar Éirinn completed about 1634.Footnote 28 According to Ó Buachalla, all those authors were committed, to varying degrees, to the Stuart sovereignty of Ireland. Nevertheless, there was also a radical strand to this tradition which urged resistance to English monarchy on religious grounds. The most substantial representatives of this strand were Peter Lombard, later archbishop of Armagh, who addressed his De Hibernia insula commentarius to Pope Clement VIII in 1600, though it was not printed until 1632, and Conor O'Mahony, whose Disputatio apologetica was printed in 1645.Footnote 29 Both of these works celebrated the Catholicity of the ancient Irish past, both insisted that the Laudabiliter contract was now void, and both renounced Protestant monarchy. O'Ferrall appears to have borrowed from them extensively, though he neglected Lombard's interest in medieval prophecy, and did not repeat O'Mahony's demand that every Protestant in Ireland be killed. Moreover, the Capuchin's violent polemic against the Old English was his own innovation.
II
In his rapid survey of the early modern Irish political histories, Colin Kidd argued that the ‘ancient Milesian constitution’ and the English ancient constitution were different species of the same genus.Footnote 30 This is indeed the case: the dominant element of O'Ferrall's treatment of the ancient Irish kingdom and kingship was that very antiquity itself; Ireland's political constitution in the distant past, O'Ferrall believed, indicated the country's proper constitution for the present and future. Ever since J. G. A. Pocock's seminal work in the 1950s this variety of political discourse has been labelled the ‘ancient constitution’.Footnote 31 According to Pocock, many seventeenth-century Europeans argued that the particular rights and privileges which they wished to defend from their kings were immemorial and so immune from royal meddling. Pocock argued that the influence of Roman law tended to cause the continental representatives of this discourse to discard the role of custom in the making of their ancient constitutions, and instead to argue that these constitutions were founded by a particular lawgiver in the distant past. Moreover, these continental ancient constitutions were under constant threat from the new lawyers expertly trained in the humanities to spot cherished, supposedly ancient, foundation texts as relatively modern forgeries.Footnote 32 England, where Roman law was less important, was different. The English common law was not made, as Sir John Davies said, by any Solon or Lycurgus, but by custom.Footnote 33 By this paradox, that the English common law was both immemorial and constantly adapting to local circumstances, the English ancient constitution was made far more durable than its continental cousins.Footnote 34 But why did the English not spot the suspect nature of the old texts, like the Modus tenendi Parliamentum, which Sir Edward Coke and others adduced in their arguments?
Pocock's solution to both the problem of the dominance of custom, and the English disinclination to apply Roman law principles or humanist scholarship to the old texts, was to posit a mentalité called the ‘common law mind’. He asserted that the common law was such a powerful force in English political, social, and intellectual life that some technical elements of the law, such as the principle of prescription, became part of the unspoken assumptions of the English elite. It was the principle of prescription, by which an old custom became a right, that accounted for the success of arguments for ancient limits on the crown: it was so then and thus should be so now.Footnote 35
The common law mind is not a convincing explanation of the nature of ancient constitution discourse in the three kingdoms. It is most unlikely that the Capuchin friar Richard O'Ferrall shared this common law mentalité with Sir Edward Coke. Moreover, O'Ferrall, as a successful courtier, would not have presented to a group of Italian cardinals an argument which was fundamentally foreign to them. One solution would be to argue that O'Ferrall was writing his ancient constitution in a continental style, rather than an English one. After the manner of the Roman law, one could say, O'Ferrall provided lawgivers for the Irish kingdom in the person of the three Milesian brothers, and a founder figure for the Irish church in St Patrick. In this way analysis of O'Ferrall would remain within Pocock's original categories.
However, all of Pocock's original categories have been brought into question by Janelle Greenberg's recent work. Greenberg has questioned the supposed major differences between English and continental ancient constitutions. She has emphasized the plasticity of the ancient constitution, invoked by English radicals as well as conservatives.Footnote 36 She has demonstrated that the common law was in fact generally considered to have a founder figure, just like continental ancient constitutions: St Edward the Confessor.Footnote 37 And she has established, against Glen Burgess, that ancient constitution discourse was not inimical to contract theory. English radicals imagined a contract between king and people in the distant past, just as O'Ferrall imagined one between king and pope.Footnote 38 O'Ferrall's ancient constitution was not structurally different to those composed by English authors. With Greenberg's arguments in mind, it makes sense to revisit an old argument against Pocock for a single Aristotelian mentalité underlying all ancient constitution discourse.
Zachary Schiffman pioneered this explanation in the 1980s.Footnote 39 Schiffman was mainly interested in sixteenth-century French lawyers and historians and was unconvinced by Pocock's account of their proto-modern historical consciousness. He insisted on the importance to the ancient constitution of Aristotle's division of all substance into essence and accidents. The accidents of a thing could be changed or destroyed without changing the nature of the thing; rather essence was what made a thing all that it was.Footnote 40
Drawing on the work of Friedrich Meinecke, Schiffman argued that this Aristotelian metaphysics underlay the way that medieval and early modern Europeans thought, argued, and wrote about the past.Footnote 41 Aristotelian historical consciousness was a process of Entfaltung: the institution or nation unfolded in a predetermined form according to its essence.Footnote 42 For medieval and early modern people history was a teleological process in which the potential or essence of a thing became clearer over time. Early modern humanists did indeed have critical tools which they could apply to detect anachronism in texts, but these tools were used mainly to help them to determine the essences of historical entities, such as the Irish church or kingdom. The potential of such an institution was established at its first foundation, usually by the founder figure, whether St Patrick or the three Milesian brothers. Sometimes a process of degeneration would occur, in which that essence or potential decayed. Writing history meant discovering the unchanging essence of a thing, depicting the unfolding of this essence over time and sometimes, in cases of decay, calling for a return to original purity. In contrast, Meinecke argued, modern historical consciousness, or historicism, left Aristotelianism behind and depended on the concept of Entwicklung, or evolution, in which an institution or a nation would move from one state of being to another, depending on its interaction with its environment.Footnote 43
Schiffman's approach thus helped to resolve two serious criticisms of Pocock's thesis. Pocock argued that sixteenth-century French intellectuals possessed a historical consciousness much more modern than the common law mind of contemporary Englishmen.Footnote 44 In fact, as J. H. M. Salmon established, while the French legal humanists possessed sophisticated critical methods which they applied to ancient documents in order to detect anachronistic language and date documents more accurately, these methods were used to discover and depict the essence of existing institutions, such as parlement, the Gallican church, or the crown.Footnote 45 Pocock, Donald Kelley, and others confused the presence of modern historical method with modern historical consciousness. Secondly, Christopher Brooks, Kevin Sharpe, and Hans Pawlisch have argued that Pocock's account of an English legal profession so dominated by the common law mind that they chose to have nothing to do with continental legal theory was inaccurate. English lawyers frequently resorted to continental theory and indeed Roman law.Footnote 46
All of these criticisms of Pocock's thesis can be brought together into a new synthesis by turning to Aristotelianism. When Pocock wrote in the 1950s much less was known about the extraordinary range, strength, and longevity of the Aristotelian tradition in the universities. While the old university sciences were under pressure during this period, it was not until the later seventeenth century that the new sciences began to constitute a practical pedagogical replacement for Aristotle's works, and this was true in both Catholic and Protestant Europe.Footnote 47 Indeed, Christopher Brooks has insisted that scholastic Aristotelianism provided an elementary theoretical foundation for all writing on the common law and other laws in England.Footnote 48 This latter point has been illustrated at length by J. W. Tubbs, who resorted continually to Aristotelianism in order to explain the writings of sixteenth- and seventeenth-century common lawyers.Footnote 49 Sir John Davies was educated at Oxford as well as at Middle Temple, and Sir Edward Coke, who spent more than three years at Cambridge, recommended the liberal arts in general and Aristotelian logic in particular to all students of the common law.Footnote 50 John Lynch and Richard O'Ferrall would have found Aristotelianism impossible to escape at their French colleges and seminaries.Footnote 51 The same can be said of the education of Scots like John Mair, Hector Boece, George Buchanan, and Sir George Mackenzie who wrote for and against their own nation's ancient constitution.Footnote 52
The European elite's shared education in Aristotelian metaphysics explains why ancient constitution discourse occurred all over Europe. When political writers sought to defend or attack particular institutions, such as kingdoms, courts, or churches, it seemed reasonable to them to search that institution's past for indications of its essence. In fact, in order to prove that the essence of an institution was as it was claimed, one would have to demonstrate that it had remained constant throughout the existence of the institution. That essence, having been discovered, could be exposed to praise or blame. Richard O'Ferrall claimed that the essence of the Irish kingdom lay in its reverence for the church and the papacy, which was epitomized by the nation's gift of the crown to the pope in 1063.Footnote 53
Moreover, supposing underlying Aristotelian structures to this discourse provides an explanation for Pocock's distinction between French founder-figure ancient constitutions and English customary ancient constitutions. The answer lies in Aristotle's theory of causation, which was vital to all the Aristotelian sciences even after Descartes and Locke offered workable alternatives.Footnote 54 Aristotle argued that all things or entities were made by four causes: the material (that from which an entity came to be), formal (the shape or structure of the entity), efficient (the agent imposing that shape), and final (the purpose of the entity).Footnote 55 In the case of a bronze sculpture of Achilles, the material cause would be bronze, the formal cause would be human shape, the efficient cause would be the sculptor himself, and the final cause would be to honour the dead hero. Richard O'Ferrall provided all of these four causes in his account of the Irish church. The material cause of the Irish church was the Irish people led by the hierarchy of bishops, archbishops, and primate. The formal cause of the Irish church was the mystical body of Christ, or the Roman and apostolic church.Footnote 56 The efficient cause was the missionary St Patrick. The final cause was the salvation of the Irish people. The efficient cause of the kingdom of Ireland, subordinate to the church in O'Ferrall's account, was the three Milesian brothers. For many English writers, as Greenberg has explained, the efficient cause of the English law was St Edward the Confessor.Footnote 57
When Sir John Davies, attorney general for Ireland from 1606 to 1619, wrote, in his Irish law reports, that the English law had no founder figure like Solon for Athenian law or Lycurgus for Spartan, and that it was made instead by custom, he was not arguing for the autonomy of the law at all. It is clear from Hans Pawlisch's work on Davies that what Davies meant by custom was the law made by his own judges, which was to be used to undermine the statute law of the Irish parliament.Footnote 58 Davies's purpose, and his anti-Aristotelian position, will be explained below.
III
The proposition that ancient constitution discourse was fundamentally Aristotelian is reinforced by use of anti-Aristotelian ideology against O'Ferrall by his most important contemporary opponent. John Lynch was born in Galway about 1600, educated first in the town's Jesuit grammar school, and then at a series of both Jesuit and Oratorian colleges in France and the Low Countries, including Dieppe, Douai, and Rouen. Returning to Ireland in 1625, Lynch was appointed archdeacon of Tuam and chaplain to Sir Richard Blake, probably the richest of Galway's Catholic merchants. Lynch continued to live in Galway through the wars of the 1640s, Oliver Cromwell's arrival in Ireland in 1649, and the town's surrender to the parliamentarians in 1652. Expelled by the new regime, the archdeacon fled first to Nantes before settling at St Malo and finding new patrons among the local nobility.Footnote 59 Over a ten-year period at St Malo, Lynch saw four substantial Latin works on Irish history through the press, and left another two long works in manuscript at his death in 1677.Footnote 60
Lynch and O'Ferrall had been friends in Galway, but the archdeacon's response to the friar's declaration against the Stuarts was unforgiving. Lynch vehemently defended both the Old English churchmen attacked in the report, and also the Stuart right to Ireland, in an anonymous Latin answer to O'Ferrall in 1664, entitled Alithinologia, or true response, and in a further refutation in 1667 entitled Supplementum Alithinologiae, or reinforcement to the true response. Lynch's two books insisted that O'Ferrall had lied and misrepresented facts in his 1658 report, and in this way Lynch hoped to smother the longer work which he knew the Capuchin was writing.Footnote 61 However, the real basis of Lynch's response to O'Ferrall lay not in a piecemeal refutation of the Capuchin's ancient Irish constitution, but in a theory of sovereignty devised by Jean Bodin and applied to Irish affairs by Sir John Davies. Bodin designed a system for interpreting the powers of governments that would destroy arguments for the limitation of royal power similar to those deployed by Richard O'Ferrall. Bodin's theory of sovereignty, as interpreted by Davies, was taken up by Lynch in the Cambrensis Eversus, Alithinologia, and Supplementum.
Jean Bodin was sixteenth-century France's most brilliant intellectual, and his life from 1562 until his death in 1596 was lived in the midst of religious and civil war.Footnote 62 During the 1560s and 1570s, both Huguenot and Catholic political writers argued that the kingdom of France was composed of an Aristotelian mixture of monarchy, aristocracy, and democracy. King, nobility, and people governed in co-operative harmony. This fact could be demonstrated, they argued, by tracing the essence of French government back to the assemblies of the Franks and their elected kings.Footnote 63 The epitome of this doctrine was François Hotman's Francogallia, first published in 1573.Footnote 64 Bodin took up a position in defence of strong monarchy and attacked his opponents' arguments not just by questioning their French history (though he did that in his 1576 Six livres de la république) but by attacking the whole concept of Aristotelian mixed government itself, a project he began in 1566 in the Methodus ad facilem historiarum cognitionem.Footnote 65
Bodin demolished the concept of Aristotelian mixed government with the following argument. The most important thing that could be known about any state was where within it sovereignty lay. Sovereignty was made up of five functions: creating magistrates and defining their offices, proclaiming and annulling laws, making war and peace, receiving final appeal from magistrates, and granting pardons to the condemned.Footnote 66 When these five functions, or marks, were held by the king, then that state was a monarchy, when they were held by the nobility the state was an aristocracy, and when the people held the five marks it was a democracy.Footnote 67 Outside the fantasies of Plato, Aristotle, Polybius, and Cicero, mixed government did not exist. If the five marks became separated the result was not mixed government but the dissolution of the state.Footnote 68 Thus, Bodin continued disingenuously, those ‘serious and learned men’ who would prefer France to be a mixed government were really arguing for either aristocracy or democracy.Footnote 69 Both of those latter types of government were imperfect because they involved some sharing of sovereignty.Footnote 70 Bodin's doctrine of sovereignty allowed him to claim that the only real choice in government was between pure monarchy and several varieties of democracy, a form of government widely despised. Moreover, there was no place in this new political metaphysics for the ancient constitution.
This ferocious attack on Aristotle, and indeed the whole classical political tradition, was contained in condensed form in the Methodus (though it was the longest section in the book) and ten years later Bodin expanded the argument into the République, which he intended to replace Aristotle's Politics.Footnote 71 Combined with Bodin's highly unorthodox religious views, this attack on Aristotelian science was enough to have his work placed in the Roman index of forbidden books in 1590.Footnote 72 Nevertheless, both the Methodus and the République enjoyed great popularity across both Catholic and Protestant Europe. The République became well known in England before the death of Elizabeth, and was a standard text on politics in the reign of James I.Footnote 73
Sir John Davies, attorney general for Ireland from 1606 to 1619, founded his Discoverie of the trve cavses why Ireland was neuer entirely subdued, nor brought vnder obedience of the crowne of England, vntill the beginning of his maiesties happie raigne on Bodin's sovereignty theory.Footnote 74 The Discoverie was an explanation of the nature of the relationship of the English crown to Ireland between the reigns of Henry II and James I, an analysis of the nature of King James's title to the country, and a programme for Ireland's future government. The Discoverie wiped the eleventh-century conquest, and kingship act of 1541, off the Irish constitutional map; associated with it was Davies's speech at the 1613 parliament which attacked the legitimacy of the medieval Irish parliaments, and his Irish law reports which exalted judge-made law over statute law.Footnote 75 The Discoverie was part of a general attack on the political heritage of the Old English as it stood in 1612. The Gaelic Irish had been defeated in the Nine Years War; now Davies meant to bring the Old English to heel.
The main line of argument in the Discoverie began with Davies's definition of a complete conquest: ‘For, that I call a Perfect Conquest of a Country, which doth reduce all the people thereof to the Condition of Subiects: and those I call Subiects, which are gouerned by the ordinary Lawes and Magistrates of the Souveraigne.’Footnote 76 Moreover, Davies continued, though a prince might call himself a sovereign, nevertheless if there were two-thirds of the country in which crimes could not be punished, unless by an army, to which the jurisdiction of the courts of law did not extend, and from which he received no revenue, escheats, or forfeitures, then no perfect conquest of the country had been made. Bodin's functions or marks of sovereignty underlay this argument, and Davies's debt to the French legist became clearer as he went on.
Under this definition of conquest, the supposed conquest of Ireland by Henry II, ‘so much spoken of, by so many Writers’, did not in reality happen. Ireland was never conquered until the reign of King James VI and I. The Gaelic Irish kings, and Davies noted that they were described as kings in government documents, merely promised to become ‘tributaries’ to Henry II:
And such as pay onely Tribute, though they bee placed by Bodin, in the first degree of subiection, are not properlie Subiects but Soueraignes. For, though they bee lesse and inferiour vnto the Prince to whom they pay Tribute, yet they hold all other pointes of Soueraignty.Footnote 77
Davies then went on to explain precisely what those ‘true markes and differences’ of sovereignty were, and who possessed them:
For, to giue Lawes vnto a people, to institute Magistrates and Officers ouer them, to punish and pardon Malefactors, to haue the sole authority of making warre and peace, and the like are the true markes of Soueraignetie; which King Henry the second had not in the Irish Countreyes, but the Irish Lords did still retaine all these prerogatiues to themselues.Footnote 78
Not only did the Irish lords display these marks of sovereignty, but even the English lords of Ireland made war and peace ‘without direction from the State’.Footnote 79 From this firm Bodinian foundation, Davies proceeded to argue that this state of affairs had continued from the reign of Henry II to that of Queen Elizabeth I. During her reign a final and perfect military conquest was made, quickly followed under King James by a civil conquest, in which English laws were given to the Irish.Footnote 80
Unlike Davies, John Lynch regarded both the laws of the ancient Irish law tracts, and those of the medieval Irish parliaments, as admirable in their own way.Footnote 81 Nevertheless, Lynch wholeheartedly embraced the rest of Davies's analysis, and it was fundamental to his argument in the Alithinologia, Supplementum, and Cambrensis eversus. In the Alithinologia, Lynch agreed with his Capuchin opponent that the bulls of Pope Adrian IV and Alexander III conferring Ireland on King Henry II were either obtained through fraud (and thus invalid) or simply forged.Footnote 82 Nevertheless, he denied that this detracted in any way from the Stuart kings' ius or right in Ireland, ‘since successive kings have held the sovereignty of Ireland by means of arms, the ratification of the Irish, and duration of time, just as by a triple cord’.Footnote 83 Lynch declined to spend much time explaining the claim of the crown to dominate by arms, which he took to be obvious:
Indeed, John Davies testifies that the magnates of Ireland submitted four times to the kings of England; first to Henry II, next to King John, then Richard II, last to Henry VIII; and the indentures of the penultimate submission are still extent in the royal archive at London, of the ultimate one in the book of the Irish council: and he adds that many lords individually made their profession of obedience to various viceroys.Footnote 84
In the left margin, Lynch fastidiously cited the relevant page numbers of Davies's 1612 text.Footnote 85 Lynch then pointed out that this domination had been recognized de facto by the papacy since the time of Henry II, referring to Popes Innocent III, Honorius III, Benedict XII, Innocent VIII, all of which was confirmed by Paul IV in 1555 when he proclaimed King Philip and Queen Mary and their successors kings of Ireland.Footnote 86 Lynch then returned to the attorney-general's radical concession: ‘For all that, Davies demonstrates splendidly in his published book that the Irish were not brought to a whole and absolute subjection, in all their numbers, before King James.’Footnote 87 Lynch then departed from Davies, however, to make use of what Johann Sommerville has labelled a designation theory of kingship.
Many strong-monarchy writers, including English royalists, admitted, with the Jesuit Francisco Suárez, that popular acclamation strengthened a king's claim to kingship, but insisted that that act of acclamation need occur only once, and also insisted, against Suárez, that the acclamation could never be revoked.Footnote 88 The people designated the ruler, but God granted him power, independent of any grant of the people. According to Lynch, this act of designation by the people occurred in the 1613 parliament held at Dublin:
Then indeed, the consent of no people ever showed itself in choosing a king for themselves so explicitly, as that of the Irish in acknowledging James as their king. All the more honourable inhabitants of each county, as is their custom, came together at the place and time appointed by the viceroy in the year of our Lord 1613, and they elected two men of their number as representatives, who should vote on their behalf in the lower chamber of parliament.Footnote 89
This was a remarkable celebration of a parliament packed by the crown by force and fraud with Protestants, which had been deplored by contemporary Catholic writers.Footnote 90 Nevertheless, because of the confiscation of Catholic estates in the 1650s the medieval parliamentary tradition was no longer of any use to Lynch and his contemporaries; royal power alone could save the Old English elite.Footnote 91 Having described the rest of these parliamentary elections in the most positive tones, Lynch then continued:
By the first decree of this assembly, James, king of Great Britain was also acclaimed king of Ireland, by the lords in the upper chamber, and by the representatives in the lower, just as in the place of all, so by the voice of all, to the greatest joy indeed of all the Irish, and in particular of the Old Irish.Footnote 92
Lynch explained the particular pleasure of the Old Irish by the fact that they now, for the first time in hundreds of years, had a king ‘undoubtedly sprung from the lineage of their own kings’.Footnote 93 Lynch had previously argued this point at much greater length in the Cambrensis eversus, where he had described four genealogical lines by which James VI and I was descended from the Milesian kings.Footnote 94
Moreover, Lynch continued, even allowing that the initial establishment of English power in Ireland was unjust, that was almost 500 years ago. Both in the case of a state seized by a tyrant, and ecclesiastical property seized by a layman, 100 years was long enough to provide a title by prescription.Footnote 95 Lynch supported this argument with a marginal citation of the second book, fifth chapter of the République, in which Bodin treated the title to a kingdom of a tyrant's successors.Footnote 96 The archdeacon then summed up his arguments for the Stuart kings' title to Ireland:
Therefore, it would be unbearably reckless to deprive the kings of England of the sovereignty of Ireland, to whom it has been transferred by right of war, consent of magnates and people, long duration of possession, family ancestry, the authority of the pope, and clear indication of divine judgment.Footnote 97
All of Lynch's published work on the kingdom of Ireland was committed to the same anti-Aristotelian doctrine of Stuart sovereignty which Sir John Davies had developed to counter the Old English constitutional tradition, resting on Laudabiliter and the medieval parliamentary tradition, fifty years before.Footnote 98
IV
Two years after the publication of the Ancient constitution and the feudal law, Friedrich Meinecke summed up a wide body of German scholarship in the argument that the new historicism developed by the pre-romantics and romantics depended crucially on their rejection of the earlier teleological style of history writing. Schiffman identified this teleology with early modern Aristotelianism. From a different direction, Schmidt, Feingold, and Brockliss have exposed the strength and longevity of Aristotelianism in both Catholic and Protestant universities throughout early modern Europe, and Brooks and Tubbs have emphasized the importance of Aristotelianism to the English common lawyers. The elite throughout the three Stuart kingdoms shared an education in this early modern Aristotelianism. Therefore, it is reasonable to see a set of unarticulated Aristotelian assumptions underlying the historically based political discourse (labelled the ancient constitution by Pocock) of this elite. The ancient constitution composed by Richard O'Ferrall, which epitomized a certain Irish political tradition, provides an example of these assumptions at play in Stuart Ireland. O'Ferrall's preoccupation with Catholicity, Laudabiliter, and heresy were particularly Irish, but his interest in the endurance of essence through time, and the significance of efficient causes to the later substance of political entities, were common to all ancient constitution writers. Moreover, the identification by McRae and Blair of Bodin's overall project as overtly anti-Aristotelian is a useful index of the Aristotelian nature of this discourse: Davies used Bodin against the Old English parliamentary ancient constitution, and Lynch used Davies and Bodin against O'Ferrall's radical Catholic ancient constitution. The Enlightenment would drive Aristotelianism from the universities, and the ancient constitution slowly became a different form of political discourse, developing a close relationship with the new racialism and eventually becoming a minor component of romantic nationalism.Footnote 99 In the Stuart century, however, the Aristotelian pole still exerted a powerful attraction throughout the three kingdoms.
