"Equitie to measure": the Perils of imperial imitation in Edmund Spenser's The Faerie Queene.(Critical essay)

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. [paragraph][paragraph]). 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 (3) In cases that were tried in such venues, justice proceeded according to a conception of equity or conscience that superseded the rigidity of the law itself.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 self-sufficiency 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 Gines de Sepulveda, all applied the doctrine of natural law in order to assess, from an ethical standpoint, the Spanish conquest of Amerindian inhabitants. While Vitoria's argument was more complex, Major and Sepulveda essentially made the case that, because such populations practiced cannibalism, sodomy, idolatry, and human sacrifice, the crown was acting justly by conquering, enslaving them, and using force to convert them. (9)

In Book Five of The Faerie Queene, the champions Artegall and Britomart face an analogous situation when they confront the Amazon, Radigund, who rules over a city that the narrator characterizes as unnatural. Artegall fails to exercise equity correctly and the result of his failure is his capture and imprisonment by Radigund as well as his eventual liberation by the female knight, Britomart. Britomart's entrance into the narrative identifies equity as a feminine principle, presumably in order to identify the exercise of equity with Britomart's real-life counterpart, Queen Elizabeth (5.7.22). In fact, the application of equity was traditionally identified with the sovereign's extraordinary powers, in that it constituted a deviation from the strict adherence to the common law. (10) In the Radigund episode at the center of Book Five, Spenser's poem is caught in a contradiction between his adherence to the principle of "feminized" equity in foreign contexts and his insistence on basic principles of natural law, which were responsible for naturalizing patriarchal gender relations. As a result, one important and available (mis)reading of the book is that the narrative justifies the (Spanish) conquest of England itself and its own "Amazon" queen, Elizabeth, in the interest of restoring a regime based on traditional conceptions of natural law. (11)

Toward the beginning of Book Five, the narrator recounts that the goddess Astrea has instructed Artegall "to weigh both right and wrong / In equall ballance with due recompence, / And equitie to measure out along" (1.7). (12) Moreover, similar to the manner in which St. German formulates the relationship between equity and the law, Astrea has taught Artegall to "dispence" with "rigour" in instances where adhering to the letter of the law would result in injustice (1.7). (13) Despite his upbringing, most critics agree that Artegall is "not an apt student of equity" (Majeske 97). (14) And yet Artegall does manage in certain instances to defend an egalitarian definition of equity by which nature is perceived as distributing resources in a just and equitable manner. (15) For example, whereas the Egalitarian Giant seeks to return the earth to its primordial state of equal distribution, claiming that its resources have lately become "unequal" with time, Artegall defends a celestial justice that

          doth among [all earthly things] raine,
   That every one doe know their certain bound,
   In which they do these many yeares remain,
   And mongst them al no change hath yet been found. (2.36)

Similarly, in the property dispute between the brothers Amidas and Bracidas, Artegall defends the "equitable" natural forces that have redistributed much of Bracidas's land and deposited it on Amadis's island and washed Amadis's treasure away and deposited it on Bracidas's island (4.1-20). (16)

In contrast to his application of this egalitarian form of equity, Artegall has trouble applying the Greek form of equity, or epieikeia, responsible for correcting the severity of the law. (17) The best, early example of this difficulty is at the end of the third canto, in which Sir Guyon comes forward to claim back his stolen horse from the scoundrel, Braggadochio. Guyon describes an identifying mark in the horse's mouth, which the horse only allows Guyon to reveal, and subsequently Artegall judges the horse to be Guyon's property (3.32-35). In …