Academic journal article Journal for Early Modern Cultural Studies

"EQUITIE TO MEASURE": The Perils of Imperial Imitation in Edmund Spenser's the Faerie Queene

Academic journal article Journal for Early Modern Cultural Studies

"EQUITIE TO MEASURE": The Perils of Imperial Imitation in Edmund Spenser's the Faerie Queene

Article excerpt

Many English jurists viewed the common law as distinctively suited to the English people.1 Sir John Davies, for example, wrote that the English common law was "so framed and fitted to the nature and disposition of this people, as we may properly say it is connatural to the Nation, so as it cannot possibly be ruled by any other Law" (sig. ¶¶). One result of the belief in the singularity of the English common law was a corresponding belief that it could not be easily exported to other nations. Edmund Spenser viewed the common law as an impediment to the successful conquest of neighboring Ireland. In A View of the Present State of Ireland (1598), he remarks that such laws "can ill fitt with [the Irish] disposicion or worke that reformacion that is wished: for lawes ought to be fashioned unto the manners and Condicions of the people to whom they are mente" (lines 323-24). What Spenser was noting was that the English law had been ineffective in Ireland because that law failed to reflect Irish customs and manners.2

Elsewhere, I have shown how Spenser reached outside of traditional common law discourse and resorted to the discourse of natural law in order to justify the English conquest and reform of Ireland. I have also explored how tensions between the natural law and common law traditions were resolved in Book Six of The Faerie Queene through Spenser's use of allegory in order to naturalize English common law (Lockey 113-43). In this essay, I make a related claim concerning the function of equity in Book Five of The Faerie Queene. Although the term "equity" was employed in a variety of different ways during the Renaissance, it was most importantly the legal principle that was applied in the court of Chancery and the Star Chamber.3 In cases that were tried in such venues, justice proceeded according to a conception of equity or conscience that superseded the rigidity of the law itself.4 According to the early sixteenth-century jurist, Christopher St. German, equity amounted to the chancellor's individual understanding of natural law, and it functioned to correct an injustice that would have resulted by following the common law too closely (111-13). Where the law gave no remedy, Chancery had the power to bind a party by his conscience and order him to do something on pain of committal for contempt.5 While St. German might have seen his position as rooted in a quite conservative common-law juridical perspective, there were at least some common lawyers who viewed St. German's defense of equity as a direct threat to the integrity and selfsufficiency of the common law courts. One such response to St. German's writings claimed that the common law was simply infallible: "Wherefore if you observe and keep the law . . . in doing all things that is for the common weal, and eschew all things that is evil, and against the common weal, you shall not need to study so much upon conscience, for the law of the realm is a sufficient rule to order you and your conscience" (A Replication 349).6

Spenser himself may have had a professional stake in such controversies. In 1581, not long after his arrival in Ireland, Spenser was appointed clerk of Faculties in the Irish court of Chancery, an office that he subsequently held for seven years.7 I would like to suggest that, in Book Five ("The Book of Justice") of Spenser's poem, equity functions as a critique of the overly rigorous regime of justice that the hero of Book Five, Sir Artegall, champions in his travels throughout Faerie Land. Moreover, despite the general anti-Spanish thrust of Book Five, the manner in which the principle of equity is applied in the book resembles the Spanish Dominican use of natural law to weigh the ethics of the Spanish conquest of the Americas.8 The Scottish theologian, John Major, the Spanish Dominican, Francisco de Vitoria, and the Spanish humanist, Juan Ginés de Sepúlveda, all applied the doctrine of natural law in order to assess, from an ethical standpoint, the Spanish conquest of Amerindian inhabitants. …

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