"The Queene Is Defrauded of the Intent of the Law": Spenser's Advocation of Civil Law in A View of the State of Ireland
Bates, Robin E., Papers on Language & Literature
Responses to Spenser's approach to legal reform in A View of the State of Ireland generally note his evasive but present critiques of the use of English Common Law in Ireland. As many critics, some to be noted here, point out, that critique had to be evasive because Common Law was understood to be a crucial part of the rights of the English in a nation growing in its place on the world stage. Any critique of Common Law could have been viewed by Spenser's contemporaries as a critique of England itself.
An interesting point in the criticism on legal reform in Spenser's View is that, while it notes his negative representation of Common Law and the legal loopholes it contained, no critic takes the extra step and asks the question: was Spenser then advocating the use of Civil Law? Certainly Spenser is advocating in this work a type of military control that stems from and increases the power of the monarch over even the minute details of rule. Common Law was a precedent-based, locally controlled form of law, and the English understood it to be an integral part of their heritage, a codified system upholding their customs. Because it operated without the possibility of any intervention from the monarch, there was no opportunity for the monarch to interfere with the judgments made by the jury in Common Law trials. This absence of opportunity for Crown interference in legal judgments was a large part of what made Common Law so satisfying to the English--they saw it as preventing the potential tyranny of a monarch too closely involved in creating the policy of custom and court judgments. Civil Law, based on the Roman Justinian code, provided far more power to a monarch than the Common Law did. And while Elizabeth's successors, James I and Charles I, wholeheartedly embraced the Justinian code because it allowed them greater minute control over legal judgments, she did not. Perhaps she was more sensitive to the potential uproar over intervention in a legal system the people considered theirs by right of history and free from the possibility of monarchial tyranny. Or, however personally she may have been involved in the suppression of potentially dangerous material, she certainly had councilors who were sensitive, perhaps personally sensitive, to criticism of the status quo.
David J. Baker points out the extent of Spenser's service to his queen when he writes that Spenser "rendered some eighteen years of loyal service in Ireland to Elizabeth I and her administration." In Between Nations, Baker writes that Spenser "coveted and accepted the queen's rewards of land and position in the kingdom and was concerned to defend them. For much of his career, Spenser thought of himself as a royal servant, not just by employment, but as a self-appointed apologist and theorist" (74). But Baker also points out that Spenser took his service as an opportunity to "tutor his queen" and to "impress in her princely mind the confused misery which, because of her benevolence, corrupts her Irish colony (115). But that "tutoring" may have been more cunning that it appears. Recent scholarship has worked to reveal Spenser's own agendas lying within his seemingly state-serving poetry. Scholars generally accept his self-laid Virgilian trajectory as Britain's great poet. But far from being what Marx called the "arse-kissing poet," Spenser is instead being revealed as a writer with a strong sense of his own authorial persona and an author's responsibility as critic.
In "Spenser's Domestic Domain," Louis A. Montrose describes Spenser's creation of a "distinctive and culturally authoritative authorial persona" (83). Spenser, finding himself with limited potential to enter into the gentry but hungry for advancement, fashioned for himself an identity that allowed him to participate more fully in the world to which he aspired. Montrose reports that "Spenser criticism has sometimes taken his indictment of courtly corruption and his praise of the monarch as non-contradictory," but he points out that, as sovereign, Elizabeth was symbolically inseparable from the court, and indictments of the court would then extend to the queen as well (100). …