By Barr, Mark L
In the late 1700’s, the capacity and incapacity of legal institutions to produce justice was at the center of social discourse. If the sensations of the Scottish and English sedition and treason trials of 1793 and 1794 are insufficient support for this proposition, David lieberman’s catalogue of historiographical pronouncements on the issue is more general evidence for a consensus. In the 18th century, “The Law was elevated … to a role more prominent than at any period” in English History, claims E.P.Thompson (1978, 144). Roy Porter adds that “the law and its execution were not just Government fiats or ruling class weapons but an intimate part of community life” (1982, 150). John Brewer suggests that “Most Englishmen experienced government and understood politics through their dealings with the law” (1980, 133, 135). Lewis Namier agrees as does J.C.D Clark, implying the importance of law and local legal tribunals in mediating the encounter between citizen and government (Namier 1929, i:54; Clark 1985). The confluence of law and politics was not merely an obvious but a compelling topic of literary concern. Coming to political awareness during the 1780’s and 1790’s, Samuel Taylor Coleridge became highly interested in the nature and social role of law early in his career. His 1794 sonnet to the prominent barrister Thomas Erskine, his “Lecture on the SlaveTrade” (1795), his trenchant condemnation of the 1795 “Gagging Acts” in “The Plot Discovered,” and even the millenarian frenzy of “Religious Musings” (1794) all evidence not merely a general concern with law, but a keen engagement with its textual, procedural and political dimensions. Focusing on the second half of Coleridge’s career, this paper will suggest that his concern did not fade with time but rather increased in sophistication of analysis and scope. Part I traces Coleridge’s continued interest in legal issues and how it began to find expression in his latest writings on politics. Part II suggests that Coleridge found in the legal concept of the trust a vehicle he hoped could house and preserve a cultural inheritance that could help stabilize textual interpretation; such stabilization could, he felt, produce justice through adherence to a system of precedent administered by a group of quasi-judical “Clerisy,” discussed in part III. However, while part IV argues that Coleridge saw this justice as arising from a cultural belief epitomized in a kind of literary interpretation based on Shakespearean principles, partV goes on to argue that then, as now, any claim that “objective” standards of textual interpretation produce justice are illusory, a mere covering for an historical trauma that can be traced back to the Romantic period or before.
I.
In May of 1811, Samuel Taylor Coleridge wrote a strident letter to the London Courier regarding sentences handed down to criminals in the recent County Sessions, among these the whipping of three women for various acts of petty theft:1
Shakespeare, who alone of all the dramatic poets possessed the power of combining the profoundest general morality with the wildest states of passion . . . whose moral aphorisms are … sparks of fire that fly off from the iron, . . .; our philosophic Shakespeare has not suffered this debasement of our common nature [the whipping of women] to … elude the inevitable tact of his moral sense: and we cannot doubt that hereafter our Legislature, which has already shewn itself so friendly to all dispassionate and unfactious attempts to amend the penal code, will allow us to repeat, fey authority, the Poet’s bidding –
“Thou rascal Beadle, hold thy bloody hand!
Why dost thou whip that woman?” (King Lear 3:ii:139-41)
In this instance, Coleridge turns England’s “philosophic Shakespeare” into a legal authority (his emphasis) to refute the legislative pronouncement embodied in current penal law. The artistic creations of this greatest English poet contain “moral aphorisms” that guide individuals to just action better than any statute or legal precedent. Moreover, these principles are “dispassionate and unfactious,” standing as a potential objective corrective to the supposedly party-driven interests that guide innovation in the legal and political realm. But what may go unnoticed in this application of Shakespearean precedent is Coleridge’s role as selector and interpreter of the quotation. As a dramatic utterance, the quotation’s meaning is at best ambiguous, nor does Coleridge explain why a quotation from perhaps MacBeth or Julius Caesar, encouraging murder and punishment, might not be more appropriate. What Coleridge presents here as authority is not so much the moral aphorism of England’s national poet as law derived through interpretive practice, wherein one presented as having a special relationship to authority is given the capacity to act as sibyl or prophet, selecting and interpreting that authority in some desired fashion. In voicing doubts about the injustice enacted through current legislation, Coleridge joins Jeremy Bentham, William Godwin and even Sir William Blackstone in a concern over the failure of contemporary political and legal institutions to manifest “justice.” Unlike his contemporaries, however, as he outlines more fully in On the Constitution of the Church and State (“Church and State”), Coleridge suggests that justice should arise from the interpretive aesthetic of a group of literary and cultural critics, the “clerisy.” In Church and State, Coleridge erects a constitutional scheme to enable a national reading community guided by this clerisy, so that the circulation of print through that community will result in readings of literary and legal texts regulated by a shared sense of custom and value. Using the Bill for the Relief of His Majesty’s Roman Catholic Subjects (“The Catholic Relief Bill”) as the focus of interpretation, Church and State becomes one extended guide to the reading of that bill and its constitutional implications, thus demonstrating the clerisy s role in the process of political decision-making (here, the evaluation of proposed legislation) and showing that role to be a new manifestation of the systematic organization Coleridge sees as necessary to curtail the radical potential of free will in the act of interpretation.2 Nor, I suggest, is this a mere historical curiosity: for here lie the seeds of a modern legal interpretive practice that had its beginnings in Coleridge’s day. In the increasing predilection of legal theorists such as Ronald Dworkin, Stephen Knapp and Roberto Unger to invoke Romantic paradigms of literary interpretation for use in judgment, we see the replication of a Coleridgean illusion that justice can be achieved through a reading strategy which simply masks the very Jacobinical innovation it seeks to eliminate.
In Church and State, Coleridge advocates a form of social organization in which the balance between opposing and mutually regulating structures is maintained by an external organization of trustee-like figures, the clerisy. Near the start of his treatise to propound a new constitutional form, he defines how a constitution should be constructed:
A Constitution is the attribute of a state, i.e. of a body politic, having the principle of its unity within itself, whether by concentration of its forces, as a constitutional pure Monarchy, which, however, has hitherto continued to be ens rationale, unknown in history . . .-or-with which we are alone concerned-by equipose and interdependency: the lex equilibria, the principle prescribing the means and conditions by and under which this balance is to be established and preserved, being the constitution of the state (Coleridge 1969, 10:23).
“Antagonistic powers” within the constitution itself maintain balance and preserve the English nation from the kinds of “disturbance” (i.e. revolutions and wars) that had recently occurred in Europe (Coleridge 1969, 10:23). These powers, or opposing interests in the state, Coleridge labels “PERMANENCE and … PROGRESSION” (10:24). These opposing interests Coleridge claims are embodied in the landed classes and the “Novi Homines,” or rising, mercantile and financially mobile middle classes, respectively (10:24-25). The goal of the latter, he suggests, is to acquire a sufficient mass of mobile property or personalty to be able to transform it into real property, to acquire titles and hereditary entitlements and to become “the staple ring of the chain, by which the present will become connected with the past; and the test and evidence of permanency afforded” (10:25). Thus, Coleridge associates each opposing class force with a further opposition embedded within economic and legal discourse. The landed classes derive their power mainly from real property, the others from the mobility and speculative potential inherent in personalty. Thus, their fundamentally opposed and mutually regulating social roles are further manifested in a type of property, a step Coleridge sees as necessary stemming from as far back as the lecture of 1795 when, under the influence of Burke, he theorized that only the backing of property (especially real property) could give the power necessary to any group to maintain power and authority over the frenzied and untutored mob that was the fear of every fledgling democrat.3 However, Coleridge goes on to suggest that even this fundamental opposition lying at the heart of the state needs regulation. That regulation is provided by the trusteeship of a new group, the clerisy. Coleridge describes the clerisy as a “permanent class or order” with the following organization and duties:
A certain smaller number were to remain at the fountain heads of the humanities, in cultivating and enlarging the knowledge already possessed, and in watching over the interests of physical and moral science; being, likewise, the instructors of such as constituted, or were to constitute, the remaining more numerous classes of the order. This latter and far more numerous body were to be distributed throughout the country, so as not to leave even the smallest integral part or division without resident guide, guardian, and instructor; the objects and final intention of the whole order being these-to preserve the stores, to guard the treasures, of past civilization, and thus bind the present with the past; to perfect and add to the same, and thus to connect the present with the future; but especially to diffuse through the whole community, and to every native entitled to its laws and rights, that quantity of knowledge which was indispensable both for the understanding of those rights, and the performance of the duties correspondent. (Coleridge 1969, 10:43-44)
In short, the clerisy are guardians of knowledge and culture who disseminate and maintain cultural values over time. They are a conglomerate body with a permanence established through legal institutionalization who control both real and cultural property or “nationally” and can stop it from being alienated, transformed and destroyed-this property is their source of power and authority, analogous to the realty and personalty held by the Landed and Mercantile classes respectively. An important distinction, however, between these groups and the clerisy is that the latter do not hold their nationally for their own good, but for the use of the nation- they “preserve” and “guard” these national treasures for the people’s enjoyment. This division between ownership and enjoyment is a pattern analogous to that found in the legal concept of trust.
II.
The technical idea of a trust does not appear early in Coleridge’s work. Perhaps the first notice he takes of it (in the context of fiduciary relationships) is in the Watchman article on the case of Docksey v. Panting. In a report partially or completely written by Rev. John Edwards, the Watchman describes Thomas Erskine’s speech on behalf of the plaintiff in a case of fiduciary breech, in which an apothecary (Panting, the defendant) persuaded Peter Garrick, the senile brother of David, to revise his will and bequeath all his estate to the defendant. In the report, as Garrick is described in terms of his brother’s famous portrayal of Lear, Panting’s violation of the brother becomes somewhat extravagantly described as a violation of the actor and, moreover, as a violation of the actor’s work done in the cause of bringing Shakespeare to the stage. Fiduciary breech becomes the violation of a cultural inheritance. Coleridge was at least impressed by Erskine’s speech and we may perhaps interpret Erskine’s moral outrage at the fiduciary breach as Coleridge’s own (1969, 2:142 n2).Yet, although Coleridge does not more fully explore his interest in fiduciary relationships until Church and State itself, the prevalence of trusts in the contemporary social and legal spheres may have suggested to him the utility of the trust as a metaphor governing relationships between clerisy and nationally.
The trust had its heyday through the eighteenth and early nineteenth centuries, finding its strongest expression in the desire of the landed gentry to restrict alienation of real and (to a lesser extent) personal property in their heirs. Although the doctrine of estates had always applied to land, allowing the establishment of tenures less than the fee simple, such as the fee tail and life estate, the common law decision allowing entails to be barred had shortcircuited the utility of these lesser tenures to restrict alienation in heirs.4 Unlike the fee simple (which allows full rights to the owner to, e.g., sell the property), the fee tail estate bound the current holder of that interest to alienate the property only to the heirs of his body. Thus, barring the entail (the “tail” being the restriction to the descendants) essentially converted the fee tail to a fee simple. After that decision, an individual with a fee tail could freely alienate property, not just mortgage it to the hilt. Real property could be traded like a commodity. However, the trust, embedded at the heart of the legal structure known as the “strict settlement” could solve this problem. Schematically, a strict settlement was the granting of a life estate to a son (usually a groom on the occasion of his wedding) with a remainder to his unborn heirs with the provision that, should the groom’s estate determine or end (e.g., he tried to sell it) prematurely (i.e., before his death) the land would go into trust for the remainder of the groom’s life and then devolve to the groom’s male heirs. The trust was necessary because the life estate to the groom (remainder to his heirs) was considered to create a fee tail in the groom, a fee tail with only a contingent remainder (to unborn children) which was barrable at common law-i.e., without the trust, the groom actually got a fully alienable fee simple with no guarantee that he would keep the land in the family. Thus, the trust was crucial to ensuring the family dynasty remained intact between generations. Only the imposition of a trust to maintain the contingent remainders (to the unborn heir or heirs) enforced absolutely the will of the grantor. Lawyers developed the strict settlement (with the vital trust element) as a reaction to the unfortunate effect of the barrable remainder in order to fulfill the desire of their clients to control property dynastically.Thus, the trust (in both the strict settlement and in the executorship) allowed the creation of a type of property that could be effectively controlled by the dead, one in which (when necessary) the legal title was separated from the beneficial ownership, entailing the preservation of the property for future generations (Spring 1988, 454-60).
The strict settlement was the (virtually) sole vehicle through which the landed classes were able to and did control the devolution of real property through a series of generations (from the 1700’s through the early 20th century). The reason that a trust was so effective in maintaining this control from beyond the grave was that its administration and the legal title to the trust property resided with one party (the trustee or trustees) while the equitable benefit or enjoyment of the property resided with the trust beneficiaries according to the dictates of the trust instrument as administered within the conscience of the trustees. The conscience of the trustee was that which bound him to follow and supplement the orders of the deceased and administer the trust property fairly according to the instruments dictates (in the case of a strict settlement, this was often a bare or simple trust without restrictions save on alienation). Thus, the trust enabled control beyond the point of alienation and allowed a grantor the same control over personal as real property. Furthermore, the trust maintained an immortal conscience which ensured the controlled and proper devolution of this inheritance.
In suggesting that the clerisy holds the nationally in trust, Coleridge invokes a form of legal control intermediate between those available to realty and personalty. Trust can encompass and combine both forms of property. Metaphorically, therefore, the clerisy can knit together realty and personalty, upper and middle class, noble and merchant, permanence and progression-past and future. For, above all, the trust was a vehicle for enabling the will of the past to be manifest in the present and into tomorrow. It was a means of control partly fixed and partly adaptable to particular circumstances based on the conscience of the trustee. Coleridge implies that by “constituting” a trust (which is still the technical term for trust formation), out of public and private property for administration by the clerisy, the clerisy itself will become the embodiment of historical and traditional ideology, ideology that will both guide and be modified in accord with the conscience of the trustees. Due to the construction of the constitution itself, insofar as the nation was required to listen to the clerisy’s containing dictates, the nation would come to express the clerisy’s conscience, an echo of the past that determined the alteration of the political form in years to come and guide the will of the people into appropriate political, literary or religious expression. The clerisy is thus “an essential element of a rightly constituted nation, without which it wants the best security alike for its permanence and its progression” (1969, 10:69). The practical function of the clerisy Coleridge himself demonstrates in Church and State: Coleridge as interpretive guide becomes a representative of the clerisy and acts to direct his reader’s act of judgment by uttering a body of traditional cultural and academic knowledge necessary both for the reading of this one Bill and for the exercise of discretion by any large body of people that decides the future state of the law, the constitution and the nation itself. In doing this, Coleridge creates an institution designed to safeguard the very framework of society itself, a constitutional function which Coleridge suggests the common law judges have failed to uphold.
III.
Historical sources for Coleridge’s notion of the clerisy are many, but they are often ones that tie the clerisy to the interpretation and application of the law. One example is in his Lectures on the History of Philosophy in 1818, in particular in his description of the Pythagoreans. In his second Lecture, recorded in the Ferer manuscript as having been given December 28 1818, Coleridge calls Pythagorus the “first philosopher,” describing him in terms remarkably similar to those he would apply to the clerisy a decade later in the Constitution of Church and State. Pythagorus was of a wealthy but middleclass background, having been raised in a trading town, a center of commerce that provided him with opportunity to converse with mariners, to travel and see much of the known world (1969, 8:i:65). On return, he immigrated to southern Italy because the political climate under the dictator Polycrates would, he believed, create “factions and revolutions inconsistent with his purpose,” which was to began a broad-ranging project of education (8:i:69). Through appearing disinterested and objective he convinced first the highest ranks of people, but eventually even the lowest, that their current miseries arose from ignorance. Although the people requested that he provide them with constitutions, or modes of government, he refused, claiming that they must find their own form of government which could not be instigated or continued without self-reformation. To encourage this self reformation, he created schools in which the carefully-selected pupils were trained in morality and self discipline, only then being offered some of the master’s secret truths so as to prepare their minds for the greater truths that they would discover on their own. Coleridge describes this as the method of “moral politics,” in which the student does not become mastered by received wisdom, but has an inner principle awakened that exerts a self-governing force to cover multiple future situations.5 These students would then leave the school and participate in the two great ends of the Pythagorean method-to prepare men to be governed and to govern. Consequently, many cities took all their magistrates from the ranks of the Pythagoreans. However, in pursuing rulership the Pythagoreans began to neglect education and therein lay the seeds of their own destruction- unprepared for self government, roused by demagogues, the people rebelled against this perceived privileged, prosperous and exclusive organization. It disintegrated (8:i:71). Coleridge saw the Girondins of the 1795 Moral and Political Lecture suffer this fate, and it is anxiety over this doom which leads to his admonitions to the clerisy for restraint in the 1829 Church and State. The role of the clerisy, insofar as it is similar to that of the Pythagoreans, is to govern through a dissemination of knowledge that awakens appropriate modes of thought and discretion. A further source Coleridge expresses for the clerisy is in the Levites, described in the second Lecture on Revealed Religion as “the Lawyers as well as the Priests of the Country” whose interest it was “to make up Quarrels and prevent lawsuits to the utmost of their Power” (1:137). Moreover, they were “teachers in order to keep the People free from Idolatry, and they were directly appointed by Moses” (1:137). As he states in Church and State, the role of the Levites in arbitrating disputes and maintaining cultural tradition was part of the “perfection of the machinery” of the Hebrew state. Their function in that ancient nation is analogous to the one Coleridge propounds in his treatise (10:34, 32-5.). Whether the clerisy is a caste of Greek philosopher kings who govern and judge according to a principle of morality awakened within them by the study of moral rules and self discipline, or a priestly order that both teaches and maintains a traditional mosaic law while applying it to resolve disputes between citizens, Coleridge often specifically stresses the legalistic nature of their guardianship: they help in the permanence and progression of “laws, institutions, tenures, rights, privileges, freedoms, obligations” (1969 10:53). In at least one draft he also states that their role is to train up the populace into “legality” and “the obligations of a well calculated Self interest” (10:213- 14). This role of embodying and expressing a traditional knowledge to guide a public (often legal) exercise of discretion is very similar to that described by Blackstone as the role of the common law judge.
For Blackstone, the royal judges are the arbiters of an unwritten common law “discovered” by applying reason to tradition: “They [the judges] are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of the law is derived from experience and study . . . and from being long personally accustomed to the judicial decisions of their predecessors” (2001, 1:69). This “law of the land” of which the judges are depository is a law supposedly common to us all evidenced by established tradition:
… in our law the goodness of a custom depends on it’s [sic] having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This is it that gives it it’s weight and authority; and of this nature are the maxims and customs which compose the common law. (Blackstone 2001,1:67)
Thus, steeped in a knowledge of tradition maintained and supplemented by the written rules of past decisions, the judge speaks as the member of an institutionalized community that does not innovate so much as gradually perfect the expression of a supposedly complete and stable ground of justice:
For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scales of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments. (Blackstone 2001, 1:69)
Blackstone, like Coleridge, sees this role as maintaining the coherence and balance of the constitution. As Stanley Katz argues in his introduction to a modern facsimile edition of the Commentaries, Blackstone conceived of the royal judges as guardians of the constitution, “constitution” at that time being defined as all the laws of the nation. Existing outside the tripartite structure of English government, the judges nevertheless played an important role in keeping the balance between King, Lords and Commons (1979, xi). Evidence for this position in Blackstone is implicit but extant. For example, he at one point stresses the independence of judges from the King, his ministers and agents and places this independence in the context of other 1688 reforms that placed the law above the King, reforms such as regulating the laws of high treason and restraining the King’s pardon for impeachments in Parliament (2001, 4:433). By safeguarding the law, the judges safeguard the constitutional balance.
This is a role Coleridge explicitly discusses in Church and State, suggesting that it must now ultimately be taken up by the people in consultation with the Clerisy. Citing the 1648 pamphlet “The Royalist’s Defence,” Coleridge acknowledges that the role of judges is to uphold the common law and ensure that parliament follows these laws:
Upon the whole the matter clear it is, the Parliament itself (that is, the King, the Lords, and Commons) although unanimously consenting, are not boundless: the Judges of the Realm by the fundamental Law of England have power to determine which Acts of Parliament are binding and which void. (Coleridge 1969, 10:97-98)
However, Coleridge goes on to assert that judges now refuse to fulfill this sacred duty, leaving it to fall to a new institution:
[This right] has been suffered to fall into abeyance. [Consequently] the potency of Parliament [is the] highest and uttermost, beyond which a court of Law looketh not: and within the sphere of the Courts quicquid Rex cum Parliamento voluit, Fatum sit! [Whatever the King with Parliament has decided, let it be Fate.]” (Coleridge 1969, 10:97)
In an allusion to the imprisonment of Leveller John Lilburne in 1645 (where his main argument in defence was that the people held ultimate legal authority) (Green 1987, 347-8; see also 307, 311, 336 and 382.), Coleridge maintains that the right to determine law still adheres in the people, quoting the following verse of the Puritan George Withers from that time:
Let not your King and Parliament in One,
Much less apart, mistake themselves for that
Which is most worthy to be thought upon:
Nor think they are, essentially, the STATE.
Let them not fancy, that th’Authority
And Priviledges upon them bestown,
Conferr’d are to set up a MAJESTY,
A POWER, or a GLORY of their own!
Bet let them know, ’twas for a deeper life,
Which they but represent
That there’s on earth a yet auguster Thing,
Veil’d tho’ it be, than Parliament and King. (Coleridge 1969, 10:10)
This “auguster Thing” is the very readership Coleridge addresses and guides through a reading of the Catholic Relief Bill in Church and State.
The relationship Coleridge suggests should exist between clerisy and populace mirrors closely that which Blackstone posits between judge and jury. Looking back to the decision in Bushel’s case (roughly contemporaneous with Lilburne’s trial), Blackstone emphasizes that the judge can no longer control the jury’s verdict- they cannot be imprisoned, starved or punished for rendering a “wrong” verdict (2001, 3:354-55). The judge’s role is to give directions and advice and to provide the legal context (i.e., the context of custom and history) within which the jury will fit its factual findings to a verdict:
When the evidence is all gone through on both sides, the judge in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principle issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in the matters of law arising from that evidence. (Blackstone 2001, 3:375) This is the role Coleridge enacts as clerisy in Church and State. Suggesting that the status of judges as constitutional guardians is now defunct, he lays the power in the people, properly guided by the context of precedent and history provided by the Clerisy, to keep, safeguard and evolve the constitution in a fit and stable direction. This power, he suggests, is exercised primarily through acts of interpretation, the clerisy holding in trust the cultural keys to appropriate reading. The raison d’etre of Church and State is a description of the idea of a constitution so as to provide guidance to Coleridge’s readers (an educated elite) who are like the second level of clerisy who will go out and change and safeguard the world. As Coleridge is at pains to point out, the idea of the constitution is something ineffable but which can be manifested (imperfectly) in a political system (10:18- 20, 2). By describing what he believes to be the best manifestation of that idea, Coleridge (like a representative of the first level of clerisy) gives an objective basis on which others can evaluate alterations or additions to the current constitutional manifestation in political organization, including the current Catholic Bill under consideration in Parliament. The commentator in Church and State supplies criteria for judging legislative text, a context that guides the interpretation. Articulating fundamental constitutional principles, the author of Church and State provides,
the final criterion by which all particular frames of government must be tried: for only [in the constitution] can we find the great constructive principles of our representative system (I use the term in its widest sense, in which the crown itself is included as representing the unity of the people, the true and primary sense of the word majesty); those principles, I say, in the light of which it can alone be ascertained what are excrescences, symptoms of distemperature and marks of degeneration; and what are native growths, or changes naturally attendant on the progressive development of the original germ, symptoms of immaturity perhaps, but not of disease; or at worst, modifications of the growth by the defective or faulty, but remediless, or only gradually remediable, qualities of the soil and surrounding elements. (Coleridge 1969, 10:20)
Although the metaphor is predominantly medical, it starts with the legal-the clerisy, like a judge, provides the framework in which new ideas will be “tried.” In short, Coleridge envisions the clerisy as not merely guardians of literary or cultural taste, but as authorities who contain a mass of shared knowledge that will enable the “correct” interpretation of literary and legal texts, interpretations that will ensure the shape and framework of the nation remains stable and intact during any period of social or political change. Coleridge, like a Shakespearean critic, Pythagorean statesman, or Levite, is an oracle of a “common law” on which to base decisions in the political realm. In Coleridge’s mind there is no separation between legal and literary discourse: being a cultural guardian means to interpret legal and literary writing with equal authority. The clerisy must read Shakespeare and legal precedent with equal facility and authority, for they must embody the capacities of sage and common law judge if they are to guide the polity to express truly the law common to us all.
IV.
However, the ultimate principle to guide the interpretation of legal texts arises, Coleridge suggests, in the literary realm. Although his appeal to Shakespeare as moral and legal authority is clear in his letter on the whipping of women, Coleridge again invokes Shakespearean authority as the motto to Church and State itself.
THERE IS A MYSTERY IN THE SOUL OF STATE, WHICH HATH AN OPERATION MORE DIVINE THAN OUR MERE CHRONICLERS DARE MEDDLE WITH (Coleridge 1969, 10:10).
Added to the second edition, this adaptation from Troilus and Cressida suggests that “mere chroniclers,” mere historians, cannot fully apprehend the nature of the state. Looking merely at historical precedent is insufficient. The “mystery in the soul of the state” is, by implication, something open to exploration by Shakespeare, Coleridge’s epitome of authorship and, by extension, open to other authors and those who study their works. The literary sphere and most particularly Shakespeare becomes for Coleridge the quintessential embodiment of the nationally, cultural property and sense of common value that will guide legal and literary interpretation.
As far back as 1808, Coleridge had been speaking of Shakespeare not as some wild, radical genius who broke the historically- established laws of literary propriety, but as a legislator of the true poetic law, as one who expressed the laws of poetry written in the heart of every person which corrected the corrupt manifestation of these laws found in established literary and legal institutions (1969, 5:i:78-79). R.H. Fogle in his study of “organic unity” first fully articulated Coleridge’s quest for objective principles of judgment, noting his claim that if there is any basis on which to judge art there must be:
in the constitution of the human soul a sense, and a regulative principle, which indeed may be stifled and latent in some, and be perverted and denaturalized in others, yet is nevertheless universal in a given state of intellectual and moral culture; which is independent of local and temporary circumstances. (Fogel 1962, 37- 38)
Following in the Eighteenth-Century tradition of Addison, Johnson and Blair, Coleridge argues for innate taste that must necessarily be expressed by any sufficiently-developed mind living within the requisite “state of intellectual and moral culture.” Like his conceptual forebears, Coleridge attempts to articulate as a set of maxims the elements of taste, a task necessary before they can be used to constitute an objective measure for literary judgment. In his analysis of Shakespeare, the embodiment of the English literary heritage, Coleridge begins to shape (really find or insert) his guide to judgment under the head of “organic unity,” a concept he develops from Leibniz, Sulzer, Herder, Goethe, and particularly Schlegel.
As Fogle shows, Coleridge places organic unity at the center of human imagination embodying a “fundamental reconciliation of opposites” (1962, 52). The principle of organic unity, supposedly the pattern and form of life and thought, becomes the criterion of judgment in the aesthetic and legal realms. Coleridge’s reading of Hamlet for instance, treats the first scene as “a microcosm of structural harmony, containing gradation, transition, development, contrast and variety of intensity and pace” (16). The scene is a whole in itself which is repeated throughout the play, all the component parts creating a unified harmonious body which constantly repeats itself in miniature. Within any artistic work is the germ or seed from which it grows in a complex, fractal design, ever- repeating the pattern of thesis, antithesis and synthesis which is the reconciliation of opposites Coleridge sees as the essential form of this seed: While the nebulous concept of “organic unity” in truth supplies no more objectivity to the process of judgment than the politicallydriven criteria Coleridge himself decries, the concept does have a putative English history, in Shakespeare-a history giving it the supposed cultural context and containment Blackstone (and Coleridge) saw as so crucial to the purity and justice of the common law. The concept of balance and inner harmony Coleridge imports into his conception of the state-those who maintain that balance, the clerisy, thus become an expression of the Shakespearean common law.
V.
However, in spite of his efforts to anchor reading practices in supposedly objective and culturally common criteria and principles, Coleridge cannot avoid the very innovation and Jacobinical imagination he decries in lawmakers.6 As with his manipulation of the quotation from Lear, used to condemn the whipping of women, in his work he reveals the same predilection to modify as any judge or legislator. The verses Coleridge cites in Church and State and attributes to Withers have Coleridge’s own significant alterations and emendations. In his alteration of line 9 (substituting “deeper life” for “a deeper thing,”), deleting part of line 10, omitting lines 11-26 and altering the last two lines from the original (originally “And, know there is, on earth, a greater-thing,/ Than, an unrighteous Parliament or King”) he reveals that the office of clerisy is open to the same attack Bentham levied against the office of common law judge, that he is an inventor, that the common law he guards and discovers is suffused with “fiction,” a “syphilis which runs into every vein and carries into every part of the system the principle of rottenness” (1962, 5:92).
This is the very same accusation that was levied against Sir John Scott’s work as solicitor general during the Regency Crisis and which Coleridge revives in reaction to Scott’s (Lord Eldon’s) WatTyler decision in 1801. On November 20 of 1788, George III had what was likely the first of his periodic lapses into insanity, instigating a flurry of political activity and legal wrangling to determine who should run the state during his disability. Speaking on the issue of appointing a regent to administer the King’s affairs, namely to open parliament in order that legislation could be passed to appoint a regent, Scott was of the opinion that no regent was needed, that the political capacity of the King was intact (if not his personal capacity) and that the constitution established no precedent for appointing a regent in such a situation. There was especially no precedent, he urged, that the next in the line of succession should be regent; this was the Prince of Wales whose politics were greatly at odds with those of his father and the established government. In such a case, Scott argued, it fell to Parliament to appoint whatever regent it saw fit. In concluding his argument to the House, Scott stated: I will therefore vote for the Commission upon the simple ground of preserving the forms of the constitution; and be it remembered that upon the preservation of the forms depends the substance of the constitution. (Campbell 1878,8:405)
Since the King’s “politic capacity” remained intact, it was sufficient to affix the King’s Seal to the commission to open parliament so that legislation could be passed appointing the regent. Although the King’s fit of madness passed before it was found necessary to appoint the regent, the opposition’s reaction to Scott’s maneuvering is telling. As Campbell records, Scott’s maneuvering was seen in the 20th edition of The Rolliad as a kind of prestidigitation that placed his act of legal interpretation on par with MacBeth’s witches’ spell:
INCANTATION,
or Raising a Phantom; Imitated from “MacBeth,” and lately performed by
His Majesty’s Servants in Westminster.
Thunder.-A Caldron boiling.
Enter three Witches
First Witch. Thrice the Doctors have been heard,
Second Witch. Thrice the Houses have conferr’d.
Third Witch. Thrice hath Sydney cock’d his chin,
Jenky Cries-Begin, begin.
First Witch. Round about the caldron go,
In the fell ingredients throw.
Still born foetus, born and bred
In a lawyer’s puzzled head,
Hatch’d by ‘Metaphysic Scott,’
Boil thou in th ‘enchanted pot.
All. Double, double toil and trouble;
Fire burn, and caldron bubble.
second Witch. Skull, that holds the small remains
Of old Camden’s addle brains;
Liver of the lily’s hue,
Which the Richmond carcass grew;
Tears which, stealing down the cheek
Of the rugged Thurlow, speak;
All the poignant grief he feels
For his sovereign – or the Seals;
For a charm of powerful trouble,
Like a hell-broth, boil and bubble.
All. Double, double toil and trouble;
Fire burn, and caldron bubble.
Third Witch. Clippings of Corinthian brass
From the visage of Dundas;
Forg’d address, devis’d by Rose,
Half of Pepper Arden’s nose;
Smuggled vote of City thanks,
Promise of insidious Banks;
Add a grain of Rollos courage,
To inflame the hellish porridge.
First Witch. Cool it with Lord Kenyon’s blood.
Now the charm is firm and good.
All. Double, double toil and trouble;
Fire burn, and caldron bubble.
Enter Hecate, Queen of the Witches.
Hecate. Oh! well done! I commend your pains,
And ev’ry one shall share i’ th’ gains (qtd. in Campbell 1878, 8:409).
Campbell adds that Lord Belgrave likewise satirized Scott’s efforts in the following lines:
With metaphysic art his speech he plann’d,
And said-what nobody could understand. (Campbell 1878, 8:410)
Many began to see Scott as one who dissembled and used his legal authority to disguise decisions made on more arbitrary and less legally consistent and coherent grounds; moreover, they saw Scott’s act of legal interpretation as associated with a kind of literary imaginative flight of fancy-he created and manipulated precedent. Published in The Rolliad in 1789, the MacBeth satire implies Scott’s exercise of “legal judgment” is imaginative, fickle, arbitrary and unbounded by any considerations of precedent. Scott is here satirized as a kind of original author-he makes a “stillborn” something from nothing, or at most from a hodgepodge of trivial and unrelated ingredients stirred in an “enchanted pot.”
This accusation of invention Coleridge himself picked up and levied against Scott in 1801. Poking fun at Scott in a note to “An Ode to Addington” printed in The Morning Post of 27 May, Coleridge alludes to the one-time prosecutor’s ability to play fast and loose with interpretive rule:
Sir J. Scott, the present Chancellor, is the only enlightened expounder of prophecies. He foretold the fate of the East India Bill, from Revelations; and the condemnation of Home Tooke and Hardy, from the celebrated Act of Edward III. His brother, Sir William, if we may venture to judge from his profound and mysterious elucidatory comments on ordination and marriage, may be joined in this sacred office. (Coleridge 1969, 3:i:264)
Although Coleridge here satirizes Scott, Lord Eldon, as a prophet, the central message, that Eldon’s exercise of judicial discretion is arbitrary and despotic, is a serious one. Equity, claims Coleridge in an attack on Eldon’s inequitable stance during the Bullion Controversy, is supposed to be “equal justice for all mankind, whether authorized by law or not” (1969, 3:iii:12). Justice for Coleridge is that which arises from reading law within its historical and institutional context-it must be read within a system or it will merely express the desires of the interpreter. What Coleridge sees Eldon as doing is a kind of wrong-headed “prophecy:” he engages in a form of literary interpretation that is unbound by anything but his own predilection and, as a consequence, is satirized as always reading a text incorrectly. Although, in Church and State, Coleridge designs a constitutional balance guarded by cultural trustees, trained to find and express a “common law” that contextualizes and grounds public exercises of discretion, his manipulation of his own precedents reveals them to be just as groundless and “imaginary” as the common law expounded and preserved by the common law judges the clerisy is supposed to replace.
In short, the Coleridgean interpretive aesthetic is bankrupt if its goal is to seek any objective cultural criteria for judgment, a Shakespearean common law. Perhaps it could not help but be so. However, in an imitation of how the common law is formed through individual judgments either being cited or ignored in subsequent decisions over time, the rhetorical power of Church and State has caused it to be “picked up” by subsequent legal and political thinkers, has caused its authority to crystallize into reality as modern legal scholars have seemingly absorbed Coleridgean ideas. In Law’s Empire Ronald Dworkin suggests that the incorporation of new decisions into lines of precedent should be like the creation of a “chain novel” in which judgments should “follow from the principles of personal and political morality … explicit decisions presuppose by way of justification” (1986, 96). Both a reader and writer, Dworkin’s judge fits his new decision into aesthetic criteria deemed to create the best “fit” between past themes and those extending into the future. In short, supposedly within precedent are latent, universal principles that enable judges to read and write new texts in the present.
It is a notion similar to Coleridge’s organic unity-after all, both seem little more than a paraphrase of Blackstone’s concept of the common law enunciating a morality common to us all. In both cases, the ultimate judgment, after all the verbal and rhetorical gymnastics involved in writing the newest chapter, requires the judge to determine which interpretation fits “best, all things considered” (Dworkin 1986, 231). Although they follow a method designed to minimize the exercise of unfettered imagination in the act of judgment, Dworkin’s judges are no less Jacobinical than Coleridge’s sibyl-like clerisy. Both are trustees of an encoded past that only they are supposedly qualified to interpret and apply to present texts-but both at the core use personal conscience as the central criterion of judgment. It is their choice as to what precedents to follow, their choice how to interpret and apply those precedents. As Roberto Unger suggested as far back as 1975, even those judges who genuinely feel they bow to the dictates of precedent are at best deluding themselves: they are adhering to the illusory essentialist notion that words and precedents have “objective” meanings that may serve to guide present decisions (1975, 83-103).
I’m not suggesting that Dworkin has been reading Coleridge so much as that our entire society has been reading and absorbing Coleridge and a romantic ideology of literary interpretation for the last 200 years. As Jerome McGann has suggested in his seminal new historical study of the romantic influence on modern critical practice, modern romantics scholars have at least uncritically absorbed romantic norms (1983,1). I would suggest that this absorption can be applied to legal interpretive norms as well. Law is a reading practice, and legal scholars have rightfully been obsessed with the criteria used to interpret legal texts. As with Coleridge’s application of Shakespeare to the whipping of women, while many judges would like us to think that the law speaks for itself or can at least be read within a context of safeguards that limit or eliminate personal discretion, it remains in the interpretation and selection of precedent that law and justice arise. The ability to make such interpretations predictable would go a long way to assuaging criticism as common today as in Coleridge’s time-that law is legislation from “activist judges,” or the rule of the chancellor’s foot (as Lord Eldon said in 1805), or what the judge had for breakfast (in Dworkin’s words) (Holdsworth 1956-82, 13:620; Dworkin 1986, 36, describing legal realism). Other legal theorists such as Steven Knapp have quite consciously invoked romantic norms (in this case, Keats’ negative capability) in an attempt to stabilize legal meaning and eliminate discretion. One can read it as an institutional development parallel to the elimination of the medieval King’s Eyre, the creation of the common law writ process or the abolition of privy seal courts in Elizabethan times. It is an attempt to make justice a flexible, adaptive machine capable of grinding off one man’s sack of meal the same as another (as Coleridge put it; 1969, 7:ii:111-12). But the difficulty with modern attempts to adapt romantic literary concepts to create such a machine is the illusion of “objectivity” they create. Embedded within our romantic notions of literature and literary interpretation lie ideological investments that inevitably colour the interpretive result. Richard Posner once went so far as to suggest that romantic values evidence an infantile desire to be free of the “political, legal and religious restraints that have evolved to tame the beast in man and create peace and prosperity” (1988,146), implying that a literature encouraging the breach of ideological constraint naturally leads to a variety of damaging radical positions like fascism and communism, even to the extremism of Nazi racial policies (148). Although this is actually the very jacobinism Coleridge and Dworkin are at pains to prevent, there is inherent in the process of interpretation an act of romantic imagination which organic unity, law as integrity or legal economic theory anxiously seek to cover, a truth confronted in the work of Roberto Unger.
Abandoning his own essentially Romantic position of “internal argument” and “deviationist doctrine” outlined in The Critical Legal Studies Movement, Unger develops a more revolutionary approach in What Should Legal Analysis Become, suggesting that law and legal methodologies are an expression of conservative Capitalist vision and claiming that legal discourse is nothing more than a rhetoric of rights and order that stops the people from analyzing society’s basic institutional structure (1986, 53ff; 1996). Instead, he suggests a radical alternative mode of legal analysis in which Judges strip away the rhetorical cover of legal language and directly confront and negotiate between the competing social interests that legal discourse represses. Judges should unabashedly become legislators, or rather, recognize fully that they have been legislators all along. In this way, Unger suggests, legal analysis becomes “social prophecy”-here is a conception of legal reasoning as an expression of radical imagination to instigate a supposedly true political justice (1996,23,113).
Thus Unger delineates and seeks to confront the very Jacobinism that in reality lies at the heart of Coleridge’s, Dworkin’s or any other attempt to regularize textual interpretation. Tracing the historical source of this concern to the Romantic period, I would suggest that the reason we continue to couch legal reasoning in the mysticism of precedent is not so much the repression of capitalist realities as the trauma of revolution. Living in a world after Thomas Paine we have a need to believe that legal rights have substance, are real and tangible in some way. But as anyone knows who has been assaulted in a back alley, legal rights never rise to the rescue. They were themselves created through rhetoric (the power of which is evidenced in Paine’s enormous publication), through an imagination that became true because it was believed, it was “taken up” and written into legal texts. But the very possibility of a different imagination rising up in revolution and overthrowing those rights, this society, is that which necessitates the lie of precedent, of a “context” within which to read and render decisions: for if we allow the imagination, the interpretation of texts and of the past, to go unchecked, we can find ourselves under surveillance, victims of extraordinary rendition or detention without trial-we can find ourselves annihilated from legal and political existence. It is no coincidence that a robust notion of legal precedent arose only after the American and French Revolutions. Coleridge’s own concern with Jacobinism and its effect on literary and legal interpretation is evidence for the connection. Therefore, I would read precedent and legal interpretation according to method as a repression and sublimation of the trauma of the radical imagination and would conclude by suggesting that, although the revolutionary potential of Unger s legal realism may sound like the gateway to a Blakean paradise of social justice, it may equally lead to an Orwellian nightmare-it all depends on whose imagination, whose Neitzschean “will to truth” dominates in the legal, political, and social sphere.
This paper traces Samuel Taylor Coleridge’s engagement with issues of legal interpretation late in his career and most particularly in On the Constitution of the Church and State. Having long noted the political and social ramifications of the supposedly systematic interpretation of legal precedent lying at the heart of the common law, Coleridge suggests that a group of cultural trustees, the Clerisy, could perform a quasi-judicial role to guide reading in the public sphere. Only through such leadership, he suggests, could justice be revived from its then-defunct state. However, the paper concludes by suggesting neither Coleridge nor any modern legal scholar who invokes romantic reading strategies can achieve the vaunted interpretive objectivity legal authority seems to require. Precedent is, in fact, a rhetorical illusion, a repression of revolutionary trauma experienced in and before the Romantic Period.
Notes
1 All references to Coleridge’s works are to S.T.Coleridge Collected Works (1969), hereafter abbreviated as ” Works” followed by volume, sub-volume, and page number.
2 See, for instance, Coleridge’s own characterization of his project in Works (1969,10:11-12.
3 E.g., expressed in Coleridge (1969, 1:6).
4 See Capell’s case, 76 Eng. Rep. 134 (K.B. 158 1).
5 See Coleridge (1969, 8:i:70 n84) for the sources of this idea.
6 See for example, Coleridge’s fear of Jacobinical interpretation in “The Plot Discovered” and his open letters to Justice William Fletcher regarding his address to the grand jury of County Wexford, Ireland in the Summer of 1814: (1969, 1:291 and 292; 3:ii:376, 377, 393).
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Mark Barr is an assistant professor at Saint Mary’s University in Halifax. Once a practicing lawyer, he wrote his dissertation on the Romantic rivalry between law and literature, portions of which have appeared in SiR, SEL and ERR.
Copyright West Chester University Summer 2008
(c) 2008 College Literature. Provided by ProQuest LLC. All rights Reserved.
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