A Curious Miscellany of Items Philosophical, Historical, and Literary

Manus haec inimica tyrannis.

Thursday, October 31, 2019

Pity Poor Rolland

Back on March 23, 2017 I posted – in installments – a paper I had written for the Richard III Society of Canada on English law in the time of that maligned King, who, for the record, even some of his greatest detractors admitted made good laws. Early on in that paper I had written about the feudal practice of holding lands by various kinds of service to one’s lord, some of these services being considered free, and some unfree:

"All of these kinds of tenure by service — knight service, scutage, serjeanty, socage — were considered free (as opposed to base) tenures, meaning that it was a freehold and you were a freeholder. What made these various kinds of tenure free? Key to the idea was that the services or money owed were certain. Even poor Rolland, a tenant in Suffolk who 'was obliged upon Christmas Day to make a leap, a whistle and a fart coram domino rege' was a freeholder, insofar as his rather embarrassing service was at least spelled out and rendered at a stated time. Outside of Christmas Day, his time and labour were his own.”

Rolland’s service was eventually commuted to a money payment.

I had come across the case of Rolland in A. W. B. Simpson’s An Introduction to the History of the Land Law, p. 6. What Simpson’s source was, I had no idea at that time. However, either Rolland’s peculiar service was not unique in Suffolk, or else the tenant’s name changed in various retellings, for I came across a very similar anecdote in William Camden’s Remains concerning Britain (1605), p. 144: “Baldwin le Pettour [‘the Farter’], who had his name and held his land in Suffolk, Per saltum, sufflum et pettum, sive bumbulum, for dancing, pout-puffing, and doing that before the King of England in Christmas holy days, which the word pet signifieth in French.”

Was Suffolk renowned among counties for producing top-notch royal flatulists, or were Rolland and Baldwin the same person? And if the same, which name is correct? (And one wonders whether in the original source of the tale there is not also some mild onomatopoetic punning intended on ‘Suffolk’ and ‘sufflum’?)

Not surprisingly, they are the same person; Camden simply seems to have misremembered the Christian name (though he got Rolland’s unfortunate surname right). And the source of the tale is an entry in the Liber Feodorum (“Book of Fees”), a 1302 compilation of Exchequer entries of tenants-in-chief of the King. The entry in question runs thus (p. 1174):

Seriantia que quondam fuit Rollandi le Pettour in Hemingeston in comitatu Suff', pro qua debuit facere die Natali Domini singulis annis coram domino rege unum saltum et sifflettum et unum bumbulum, que alienata fuit per particulas subscriptas.

“The following (lands), which formerly were held of Rolland the Farter in Hemingston in the county of Suffolk, for which he was obliged to perform every year on the birthday of our Lord before his master the king, one jump, one whistle, and one fart, were alienated in accordance with these specific requirements.”

This service was perhaps less humiliating than it might sound, since after all, he performed it by royal command of his Majesty the King, and it was well-remunerated: 30 acres of land. Cheap rent, when you consider it. And — wait for it, folks — I learned that Rolland even has his own Wikipedia page. So, an independent fortune that gave him freeman’s status, a modicum of fame down through the ages… which of us wouldn’t break wind on command for that? But alas, not all of us have been blessed with Rolland's peculiar talent.


CAMDEN, William. Remains concerning Britain. Thomas Moule (ed.). London: John Russell Smith, 1870.

LYTE, H. C. M. (ed.). Liber Feodorum. The Book of Fees, Commonly Called Testa de Nevill: Part 2, A.D. 1242-1293. London: His Majesty’s Stationery Office, 1923.

SIMPSON, A. W. B. An Introduction to the History of the Land Law. Oxford: Oxford University Press, 1961.

Wednesday, April 10, 2019

The Birth of the Entail

My current reading has been delving rather (too) deeply into two main areas: Parliamentary law and English legal history. This post deals with aspects of the latter. If you are already an expert in this area and find my posts amateur performances, I apologize. I am an enthusiast, not an expert, so this isn’t aimed at you.

Let us begin our story in 1284, with a legal dispute between Hugh Deen and Simon of Londonthorpe. Hugh’s father William, had given a gift of land in Grantham to Alan of Winwell and his wife Cecily (in Baker’s version; Brand’s version has her name as Avice). Although it is not very clear in the records, Cecily was probably William’s daughter. William Deen’s gift was conditional: the land was given to Alan and Cecily Winwell and to the heirs begotten of their bodies. Upon failure of such issue, the land was to revert to William or his heir.

In law, this sort of gift, usually to help a newly married couple set up in life, was called a maritagium, a marriage gift. Typically, in making such a gift to his daughter, the donor’s intent was to provide for her and her offspring from the marriage; it was also his intent that the land not end up being inherited by strangers who were not of his blood. Hence, upon failure of issue, the gift would revert to the donor or his heirs instead of passing to the daughter's spouse and possibly his offspring from a subsequent marriage, or else alienated by him. Also, if he had simply given a gift of lands to her unconditionally, by law, as a married woman (or "femme covert") the land would have become alienable by the husband. Making the gift conditional was supposed to keep this from happening

In the law of the time, if the wife died before the husband, and they had issue at some point (even if the issue did not survive them), the husband was entitled to retain possession of whatever lands belonged to his wife in fee for the remainder of his life, before it passed to her heirs. This was called the right of curtesy. Here is Fleta on this point (Bk. III, c. 11):

“And although mention may be made in a gift that the land is given to such-and-such a man in marriage with such-and-such a woman, the property given is, however, the freehold of the wife’s and not the husband’s, since he has nothing but the custody of it, with his wife, until the freehold [in this case, a life estate] accrues to him by the curtesy of England.”

He could not alienate it, nor could his children from a subsequent marriage inherit it. There was however, some question as to whether the lands held by the wife through such a gift were held in fee. It’s an important question from her husband’s point of view: if they were seised in fee (i.e. owned outright), he could hold them for life by right of curtesy after her death. If, however, the wife was not seised in fee of the gifted lands, then after her death they would revert to the donor. Fleta seems to imply that the former is the case; the wife is seised of gifted lands in fee, having at least a life estate that will pass to her heirs, and so the widowed husband may continue to hold by curtesy. There seems to have been, however, some disagreement on this, at least prior to 1285.

To return to Deen v. Londonthorpe (1284). At their deaths, Alan and Cecily Winwell had no living issue, and the land passed to whoever was Cecily’s next legal heir. To cut a long story short, it ended up in the hands of Simon of Londonthorpe and his wife Isobel. As the heir of William Deen, the donor, Hugh Deen, sued them on a writ of formedon, specifically, formedon in the reverter. This was a legal action brought by a donor or his heirs for the return (reversion) of a gift upon failure of some condition of that gift, for instance, failure of issue or alienation against the intent of the donor.

(The term “formedon” comes from Old French forme don, from the Latin forma dona, “form of the gift”.)

According to Hugh, the form of his father’s gift required the land to revert to him or his heir (i.e. Hugh himself) should the Winwells die without issue. However, the wording here is ambiguous. Does “die without issue” have the narrow sense of “have no issue alive at the time of death”, or the broader sense of “never had issue”? There is no disputing that if Alan and Cecily had issue living at their deaths, that issue would inherit. The question is, what happens in the case where the Winwells outlived their children?

Simon’s lawyers, Pageman and Arnisby, argued that, contrary to the wording of the plaintiff’s writ, the Winwells did at some point have a son and a daughter, and therefore had issue. The writ therefore is premised on a factual mistake and should be void. They also argued that the issue having died before their parents is irrelevant because, supposing a point in time when the issue were still alive, at that time, Alan and Cecily would have had issue of their bodies living and therefore could have lawfully alienated the lands. In other words, at that point in time they had gained a freehold by fulfilling the condition of the gift, and this freehold staid with them after their children were dead.

Regarding the first part of this defense, that the plaintiff’s writ of formedon made the false claim that Alan and Cecily did not have hairs of heir bodies, the judge shoots this down:

“SAHAM. The writ says that they died without heirs begotten of their bodies, and does not say that they had no heir of their bodies (as your argument supposes).”

In other words, Saham, J read the writ as making the narrower claim that Alan and Cecily did not have heirs of their bodies at the time they died, which is presumed to be factually correct. Therefore, on this count, the writ is valid.

At this point, Deen’s lawyer, Fishburn, makes the following argument: Neither of the Winwell's children, while their parents were alive, could claim the inheritance. Therefore, the children were never heirs, and could only have become so at the moment they survived their parents, which never happened. During their lives, the children had no title to pass on. Therefore, contra the terms of the original gift, Alan and Cecily failed to have heirs begotten of their bodies. Therefore, the gift ought to revert to the donor’s heir, Hugh Deen.

It is here that the judge interjects with the following terse and enigmatic remark:

“SAHAM. Say something else.”

It is not immediately clear to whom he is speaking. If to Fishburn, it is equally unclear whether he’s speaking approvingly or disapprovingly. In other words, he could either be reacting to Fishburn’s argument with either (i)  “Interesting… go on, I’m listening” or (ii) “Terrible argument. Hopefully you have something better.”

However, Brand’s translation of Saham’s remark is “Answer over” (respondeat ouster, “let him make further answer”), thus implying that he is actually speaking to Simon’s lawyers, requiring them to offer something in response to Fishburn’s argument.

And it is here that Pageman, for the defendant, responds with his trump card. It turns out, you see, that Alan and Cecily did have a daughter named Alice who outlived them and took up the inheritance, alienating a part of it (to Simon?). Judgment for the defendant.

It was rather a neat ending, at least for for the defense, but unfortunately for us, it lacks resolution of a core issue. If it had instead been the case that Alan and Cecily lacked living heirs begotten of their bodies at their deaths, we would like to know which of the following two positions justice Saham would have favoured:

1.    Alan and Cecily had no heirs of their bodies begotten. Therefore, by the form of the gift, the land reverts to the donor, or to his heir Hugh Deen. Neither Alan nor Cecily could alienate the land, and any such alienation (e.g. to Simon of Londonthorpe) was unlawful. Nor can Alan continue to inhabit the lands by curtesy should Cecily outlive him, because the latter was not seised in fee (though this latter point is disputable).

2.    Alan and Cecily had children who all died before them. At some point though, while the children were alive, Alan and Cecily did have heirs begotten of their bodies, and therefore they had satisfied the condition of the gift, thereby gaining a freehold. The gift was complete. The donor and his heirs no longer had a right of reversion, and Alan and Cecily could alienate the land as they saw fit, or else it would pass to whoever ended up being Cecily’s lawful heir. Meanwhile, if Cecily died before Alan, Alan could continue to hold the land by curtesy until he died.

From the record, it seems like, up until Simon’s lawyer played his trump card, justice Saham was perhaps leaning towards the first position. However, for whatever reason, the tendency up to the time of this case in 1284 was that courts were increasingly leaning toward the second position. They were more often favouring an (over)literal interpretation that seemed to ignore what was thought to be the clear intention of the donor and the form of the gift itself. People who wished to make such conditional marriage gifts were rightly becoming hesitant to do so, because there was no guarantee their wishes would be observed by the courts.

It was felt that legislation was required. This came in 1285, in the form of c. 1 of the Statute of Westminster II, called De Donis Conditionalibus (“Of Conditional Gifts”). It enacted that the donees cannot alienate the gift, regardless of whether they have issue, or whether or not said issue survives them. It explicitly made the first position, above, the law of the land, protecting both the intentions of the donor and the interests of the donee’s descendants. If issue survives, issue inherits, by the form of the gift. If not, it reverts to the donor or his heirs, again by the form of the gift. Naturally, this implies the need for two different writs of formedon (“form of the gift”).

Remember, before De Donis there was already a writ of formedon in the reverter, which Hugh Deen used in his attempt to recover the reversion of the gift to the donor. Now, in addition, De Donis also offered a writ of formedon in the descender specifically for descendants of donees to recover alienated lands. As long as descendants had an action of formedon against the donees, the donees were prevented from alienating, and could have at most a life estate. This was essentially the birth of the entailed estate — which underpinned the first season of Downton Abbey.

However, it became settled law that such a conditional gift could only bind for three generations of descent before it would be inherited in fee simple.

And incidentally, justice William de Saham's career ended in 1290 when he was convicted of judicial misconduct.


The author of Fleta, writing in the 1290s, seems to contradict himself on the subject of De Donis. Of the statute, he writes (Bk. II, c. 9),

“If a gift should be made to someone, with his wife, ‘to have and to hold, to him and the heirs whom they lawfully beget between them’, it follows that the donor wishes such heirs to succeed as are within [both] paternal and maternal inheritance, to the entire exclusion to their other heirs more remote. And that the intention of the donor should be observed appears clearly by this statute.”

All fine. However, in a passage only a few paragraphs further down, the author writes that in making a gift,

“if you say thus, ‘I give such-and-such an amount of land with appurtanances to have and to hold to you and your heirs, if you shall have heirs of your body’, and if I should beget such heirs, even though they should fail, nevertheless other heirs of mine, however remote, will succeed me ad infinitum, because the condition has been satisfied. But before they are begotten the property given to me will be simply a freehold [i.e. a life estate] and after my death it will revert to you as the donor…”

The former passage reflects the post-De Donis position favouring Hugh Deen, while the latter passage seems to be a relic of the pre-De Donis period, favouring Simon of Londonthorpe. How do we reconcile this contradiction?

It is possible that the author of Fleta slipped up. The work is a sort of crib and commentary on an earlier author, Bracton, and so after correctly stating the post-De Donis law, perhaps he accidentally left in the contradicting passage from Bracton that states the earlier law.

The context of the passage is this: Fleta/Bracton was making a point about the formal language of the conditional gift. If the gift says (i) “I give such-and-such an amount of land with appurtanances to have and to hold to you and your heirs, so that [ut] you shall have heirs of your body”, the gift passes an absolute estate to the donee without condition. Whereas, if the gift says (ii) “I give such-and-such an amount of land with appurtanances to have and to hold to you and your heirs, if [si] you shall have heirs of your body”, the “if” represents a condition, which as soon as met, passes the estate to the donee. It does shed a little light on the seemingly counterintuitive pre-De Donis interpretation of  the conditional gift.


ANONYMOUS. Fleta (Vol. III: Book III and Book IV). London: H. G. Richardson and G. O. Sayles (trans.). London: Selden Society, 1972, pp. 14-15, 20.

BAKER, Sir John. Sources of English Legal History: Private Law to 1750 (2nd edition). Oxford: Oxford University Press, 2010, pp. 47-48.

BRAND, Paul (ed.). Earliest English Law Reports, Vol. III: Eyre Reports to 1285. London: Selden Society, 2005, p. 110.

Friday, March 15, 2019

Patriarcha Redivivus

A great conservative thinker (Burke) once said of another, “Who now reads Bolingbroke? Who ever read him through?” For context, Burke was referring specifically to Lord Bolingbroke’s posthumous philosophical writings, which, it is true, are not much read or indeed worth reading. But his political writings are another matter, which I perhaps shall expand upon in some future post.

I would apply Burke’s assessment of Bolingbroke’s reputation to another great conservative thinker, though perhaps with more justification: Who now reads Filmer? Who ever read him through?

Sir Robert Filmer (1588-1653) is best known today, if known at all, as the author whom John Locke attacked in his Two Treatises of Government (1689) for his supposedly crackpot views on the divine right of Kings having been derived from Adam through the Old Testament patriarchs. I was forced to read Locke’s Two Treatises in university, but I was never made to read Filmer. Had I done so, I would have discovered that the latter serves as a straw man for the former. My Whiggish educators would not have allowed that to happen, especially had any of them read Filmer themselves, which I suspect they hadn’t. So inconsequential is Filmer considered, that he doesn’t warrant an entry in the Stanford Encyclopedia of Philosophy.

Philosophical reputation can be a faddish thing. It is very much subject to the pressing concerns and fickle fancies of each generation of philosophers. There was a time when David Hume was considered to be a historian. If recognized at all as a philosopher, it was as  one that was bad, mad, and dangerous to know. At the same time, Thomas Reid was considered to be a philosopher’s philosopher who spawned an extremely influential school (Scottish Common Sense philosophy). There was at that time no “Humean School” to speak of. As the English-speaking world became more skeptical, less deferential to authority, more inclined to scoff at moral and religious claims to truth, more immoral (or at least amoral), Hume’s star rose and Reid’s fell. And yet, for we happy few who have taken the time to read and engage with Reid’s thought, we might wonder whence this neglect of Hume’s great contemporary.

Sometimes philosophy may hold an unflattering mirror up to society. But more often, society simply chooses the philosophical mirror it prefers to see itself reflected in. In modern times we have tended to choose very Whiggish mirrors.

Those who know of Sir Robert Filmer at all typically know him exclusively at second hand, through the critiques of John Locke and perhaps Algernon Sidney. Reliance on these sources gives a mistaken impression of him. For one thing, these critiques rely heavily on one work of Filmer’s, Patriarcha, published posthumously in 1680. By then, Filmer had been dead for nearly 30 years, and in any case, Patriarcha was not the work he was best-known for in his lifetime, not the work upon which his earlier reputation was built. For that, one must turn to such works as The Free-holders Grand Inquest (1648), The Anarchy of a Mixed or Limited Monarchy (1648), or Observations concerning the Originall of Government (1652). It must be admitted however, that much in these works was borrowed from Patriarcha. And it must also be admitted that since the 1980s there has arisen some controversy as to whether Filmer was actually the author of The Free-holders Grand Inquest. (If he didn’t write it, then the anonymous author was someone who thought, wrote, and argued very much like him.)

Given the lapse of time between Filmer’s death and the critiques of Locke and Sidney, it should be noted that the latter were writing to a different generation, with different political concerns. While Filmer wrote in the context of the English Civil War, Sidney’s Discourses concerning Government (also published posthumously) was written during the Exclusion Crisis, as part of a campaign to keep the Catholic James, Duke of York from succeeding his brother on the English throne. Locke’s Two Treatises (1689) was published during the so-called “Glorious Revolution” that replaced James II (the aforementioned Catholic Duke of York) with his daughter Mary and her Dutch husband William III. Actually, Locke’s work was written earlier, during the Exclusion Crisis. As Peter Laslett, Locke’s greatest editor, convincingly argued, “Two Treatises is an Exclusion Tract, not a Revolution Pamphlet” (p. 61). In any case, whether these were Exclusion or Revolution tracts, they were trying roughly to achieve the same thing: delegitimize the (hereditary) Stuart claim to the throne by attacking a prominent defender of it.

Filmer is portrayed by Locke and Sidney as rather a ridiculous figure, a slightly cretinous old reactionary with crack-brained ideas about the King being God’s anointed through descent from Adam. That portrayal has essenitally continued to this day. In a review of a then-new edition of Filmer’s works, Christopher Hill, eminent 20th-century Marxist historian of the English Civil War period, cannot help making a snide little jab at Filmer (and Tories in general) when he wrote that “Filmer’s theory was the best the Tories could produce in the decisive decade 1678-88.” Again, it seems we’re meant to save ourselves the trouble of reading something not worth reading.

Hill’s words paper over the fact that through that same decade the Whigs hadn’t fared much better; they too stooped to grave-digging, resurrecting long-dead authors to support their cause. Philip Hunton’s A Treatise of Monarchy (1643) comes to mind, which was reprinted in 1689, not long after Filmer’s works had been reissued. Entering this pair in the lists was ironic, for they had done battle previously: Hunton’s Treatise had already been ably answered by Filmer’s Anarchy years before. It seems both sides were scavenging old ideas to support their respective causes, as is attested by the outpouring of reprints of Civil War-era works on similar themes that were reprinted during the Exclusion Crisis and the "Glorious" Revolution (a large selection of which can be found scattered in the pages of the Harleian Miscellany, for those who are interested).

 If Filmer was as obtuse and not worth reading as Locke, Sidney, Tyrrell, et al. have portrayed him (and as Christopher Hill implies), then why did they put themselves to the trouble of reviving and then attacking him? Why not let the poor deluded old man rest in peace? One reason was that the Tories had reprinted his previously published works in 1679, followed by an edition of his previously unpublished Patriarcha in 1680. The other reason was that Filmer’s ideas had proponents, influential ones. As Locke tells us in his preface,

“There was never so much glib Nonsence put together in well sounding English. If he [the reader] think it not worth while to examine his Works through, let him make an Experiment in that Part where he treats of Usurpation, and let him try whether he can, with all his Skill, make Sir Robert intelligible…. I should not speak so plainly of a Gentleman, long since past answering, had not the Pulpit, of late years, publickly owned his Doctrine, and made it the Currant Divinity of the Times.”

Thomas Hobbes had also strenuously defended monarchy, though on different grounds than Filmer. However, Hobbes was also a notorious infidel, and could therefore be safely ignored by most in the 1680s. Indeed, some of his ideas – e.g. natural liberty in an original state of nature, the institution of government by contractual consent – had already been co-opted by the Whigs for their purposes, so that by a strange sublimation, what had been arguments for absolutism became the very core of liberal theory.

Unlike Hobbes, Filmer was no outsider; he was a member of the landed gentry and he was an orthodox religionist who went out of his way to attack the infidel Hobbes. He was therefore taken up by clergymen in a way that Hobbes could not be. So every Sunday from pulpits across the land, the laity were being instructed by High Church preachers in the virtues of passive obedience to a monarchy instituted and sanctioned by God.

Reading between the lines, one gets the impression that the Whigs felt they were losing the battle for hearts and minds. I suspect they were. But you’d never know it from the Whiggish triumphalism suffusing modern accounts of the Locke-Filmer debate. When I read Locke’s Two Treatises, I sense that the author’s seeming contempt is masking palpable ideological fear.

I contend that Locke and Sidney misunderstand (willfully?) Filmer’s point. Filmer wasn’t claiming that Charles I literally derived his power from the biblical patriarchs. He was merely making the point that political obligation, specifically obligation to a monarch, was a basic anthropological phenomenon that pre-existed any supposed compact or agreement among the political community. Subjection to authority is and has always been a natural state, into which each of us is born; it is most commonly found in the subjection of child to parent, and forms our earliest “political” experience. (Note too, that unlike the Whiggish view of political subjection, this natural relationship is not based solely – or even mostly – on an implicit threat of violence.) The supposed Hobbesian/Lockean “natural freedom” in a state of nature, on the other hand, is mere fiction. Hence, writes Filmer, “Where subjection of children to parents is natural, there can be no natural freedom” (The Anarchy, p. 142). We do not spring up like mushrooms in the night, as fully-formed isomorphic liberal selves.

Now this claim, that political authority is conceptually or analogously related to parental authority, is one that might be argued against on historical/factual grounds, but it is not an absurd or lunatic claim. The fact is, we each of us is born under authority, and we rarely question its legitimacy. So why are we so quick to question the legitimacy of existing political authority, especially in the form of a monarchy which had existed since time immemorial? Why the need to replace this common experience with an abstract and likely fictional account of an original social contract? It is ironic that, while Filmer was attacking the theorizing of Hobbes and others, who based political obligation upon a supposed social contract, Locke attempts to refute Filmer by offering — a social contract theory!

Filmer was not alone in criticizing as a whimsical fiction this social contract view of the origins of political obedience. One of Locke’s antagonists, the underrated Edward Stillingfleet (1635-1699), Bishop of Worcester, made a similar point, writing “Every new modeller of government hath something to offer that looks like reason, at least to those whose interest it is to carry it on: and, if no precedents can be found, then they appeal to a certain invisible thing called, The Fundamental Contract of the Nation, which, being no where to be found, may signify what any one pleaseth” (quoted in Hatsell, Vol. II, p. 72).

As already noted, it was in part the later preaching of Filmerian doctrine from the pulpits by clergyman such as Stillingfleet that spurred Locke to write his Two Treatises. But contrary to prevailing prejudices, it was not just clergyman and High Church Tories who were skeptical of Whiggish social contract doctrines. Chief Justice Matthew Hale (1609-1676), no High Church clergyman, and someone respected by Whig and Tory alike, wrote of England that “the original pact whereby this kingdom was settled appears not, neither have we reason to believe there was any extant, it having been so ancient a kingdom… and therefore should we make our estimate of the nature and extent of the government by that, we should be at a loss” (p. 8). So at least some of Filmer’s doctrines were establishment rather than fringe ideas, contrary to how Filmer’s legacy is portrayed by today’s Whiggish scholars.

I implied above that Locke and Sidney willingly misunderstood Filmer. First, as mentioned, they mostly chose to criticize one work, the posthumous Patriarcha. Secondly, they chose to overemphasize and mischaracterize the notion that the monarch’s authority is an estate handed down from the biblical patriarchs, who derived it from Adam. The edition of Patriarcha I have is 64 pages long. Only one part of the first chapter, a passage totaling about 9 pages, contains what is commonly supposed to be his central tenet, that monarchy is derived from the paternal authority of the Old Testament patriarchs and ultimately from Adam. There is as much Roman as there is Old Testament history in the work, and there is more English constitutional history than either (roughly 20 pages).

Indeed, Filmer demonstrates a much deeper knowledge of English constitutional history and precedent than either Sidney or Locke. In this regard, I find Locke in particular appallingly ignorant of the constitutional law and customs of his own country. This is not atypical of philosophers, who rarely let facts stand in the way of a good theory. Stillingfleet’s words, quoted above, are instructive here: Locke is one of those “new modellers” of government who, lacking precedents (largely due to his legal-constitutional ignorance), appeals to a fictional contract, which serves as the black box for whatever preconceived theory he wishes to pull out of it. There is a grain of truth to this claim, for it certainly is interesting that different social contract theorists manage to generate vastly different ideal political systems from the same basic theoretical machinery. Locke’s ideal commonwealth is radically different from Hobbes’, Hobbes’ is radically different from Rousseau’s, and Rawls’ is vastly different from Nozick’s. What all of them do have in common is a readiness to make vast quasi-anthropological claims on pretty thin empirical grounds (though to be fair, Filmer is guilty of this too).

In his use of constitutional history and precedent, Filmer has been accused of unoriginality, relying heavily on other sources. If so, then it merely shows that better minds than his were already thinking along the same lines about monarchy, sovereignty, and political authority. For example, one of Filmer’s sources was the antiquarian Sir Robert Cotton (1571-1631). In a short and accessible posthumous work, The Antiquity and Dignity of Parliaments (again, one of those earlier unpublished works that was dug up and published in 1679), Cotton presents a comprehensive range of precedents, in chronological order. They are all marshalled to show very convincingly that the inclusion of the commons in Parliament was a relatively recent development, and that Parliament was always intended to be no more than an advisory body to the King, summoned and dissolved at his pleasure. The King was placed in a position above the law, his sovereignty undivided. This is essentially Filmer’s view of the matter, and The Free-holders Grand Inquest could have been written by Cotton.

The cartoonish Whig depiction of Filmer, as a crazed or semi-retarded old religious zealot, whose defense of his King relies mostly or solely on Old Testament patriarchy, goes back a lot further than Locke and Sidney. Just a few years after Filmer’s death, we find Marchamont Nedham writing that “Those Men that deny this Position [that the origin of legitimate government rests with the people], are fain to run up as high as Noah and Adam, to gain a pretence for their Opinion: alledging, That the primitive or first Governments of the World were not instituted by the consent and election of those that were governed” (The Excellencie of a Free-State (1656), p. 70). Nedham was writing before Patriarcha was published. His editor, Blair Worden, believes that the reference is to Filmer’s The Anarchy of a Limited or Mixed Monarchy (1648). Assuming so, then just as with Filmer’s Whig critics a quarter of a century later, Nedham’s characterization of his argument’s reliance on Old Testament patriarchy is absurdly overblown. The edition of The Anarchy I have in my hand is forty pages long. Of that, passages reliant on biblical history, taken together, account for roughly two pages. Classical and contemporary references vastly outnumber scriptural ones. Indeed, if Filmer’s Anarchy was so reliant on Scripture, one would expect him to have chosen a verse or two of Scripture for his epigraph. Instead, he chose a couple of lines from Lucan’s Pharsalia.

Nedham seems to have been a man of rather flexible political convictions; he held them strongly and eloquently, but only until it was no longer in his interest to hold them. He wrote The Excellencie of a Free-State during his second period as a Commonwealthsman, after a stint as a Royalist propagandist. In it he argued that the end of government being the good of the people, the people ought to govern themselves, because “they best know where the shooe pinches” (p. 25). Therefore, he advocated a unicameral government by a representative popular assembly. As a conservative, someone like me might wonder whether Nedham’s claim is strictly true. Do the people always best know where the shoe pinches? And are they necessarily best placed to know how to what's causing it and how to fix it? After all, not every wearer of a shoe is a shoemaker.

It is a perennial theme of conservative jeremiads that “the people” (or “the mob”) are fickle and turbulent. Hence the need for a form of energetic government with a strongly concentrated sovereignty. For many centuries monarchy was that form of government. It is perhaps hard for us now to understand the monarchist mindset, and we are surprised when we see atavistic manifestations of it in the form of broad popular support for a Putin, a Duterte, or a Trump. But most of the people who have ever existed, have lived and died under the rule of monarchs. With this in mind, we might be a little more charitable when approaching thinkers such as Filmer, for whom monarchy was natural in the strongest sense.


COTTON, Sir Robert. The Antiquity and Dignity of Parliaments (1679). Reprinted in The Harleian Miscellany, Vol. VIII, pp. 216-228. London: Robert Dutton, 1810.

FILMER, Sir Robert. Patriarcha and Other Writings. Johann P. Sommerville (ed.). Cambridge: Cambridge University Press, 1996.

HALE, Sir Matthew. The Prerogatives of the King. D. E. C. Yale (ed.). London: Selden Society, 1976.

HATSELL, John. Precedents of Proceedings in the House of Commons (4 vols.). London: Luke Hansard, 1818.

HILL, Christopher. Review of Patriarcha and Other Political Works of Sir Robert Filmer (Laslett, ed.). History 37.130 (1952), 166.

HUNTON, Philip. A Treatise of Monarchy. Reprinted in The Harleian Miscellany, Vol. IX, pp. 321-371. London: Robert Dutton, 1810.

LOCKE, John. Two Treatises of Government. Peter Laslett (ed.). Cambridge: Cambridge University Press, 1988.

NEDHAM, Marchamont. The Excellencie of a Free-State. Blair Worden (ed.). Indianapolis: Liberty Fund, 2011.

SIDNEY, Algernon. Discourses concerning Government. Thomas G. West (ed.). Indianapolis: Liberty Fund, 1996.

TYRELL, James. Patriarcha non Monarcha: The Patriarch Unmonarch’d. London: Richard Janeway, 1681.

Friday, February 8, 2019

The Spectacled Avenger’s Reading List, 2018

In keeping with New Year’s tradition on this blog, below is a list of books I read last year. Obviously, we’re already into February now, so I must apologize for the lateness of this post, and the paucity of posts generally. My main excuse is that a little over a year ago I was promoted to a new position at work, one with a steep learning curve. Complicating this was that for close to three months my old position went unfilled, so I was effectively doing both jobs (further complicated by a stint on jury duty!). Hence, I had little time or energy for blogging.

This also partly explains the shorter reading list this year. I had less time for reading as well — though thanks to a long commute on public transit, as well as a lack of enthusiasm for smartphones and social media, I still get more reading done than the average person.

It wasn’t just work that curtailed the list. This year I acquired nine volumes of the 1808-1811 edition of the Harleian Miscellany. For those unfamiliar with it, this is a large collection of scarce pamphlets and manuscripts from the vast library collected by Robert Harley, Earl of Oxford (1661-1724) and his son Edward. My method of reading this is what I would call “grazing”. I draw a volume at random from the shelf, scan the table of contents for a pamphlet that looks promising, and then read it. I have devoted many pleasurable hours to this activity, particularly in the past six months. But since I never completely read a volume systematically, from cover to cover, these extensive Harleian ramblings are not recorded in the list below.

So, in terms of quantity, there are 64 items on this year’s list. Although that’s nothing to sniff at, to put it in context, last year – a more typical one – I read 83.

In terms of content, there is less fiction than the previous two years, though it’s still represented (e.g. Austen, Brown, Fitzgerald, Hogg, Sterne). Poetry is also well-represented (though it usually is): Horace, Wordsworth, Herbert, Marlowe, and Golding’s translation of Ovid. Unlike in 2017, there are no plays.

Prominent are books on parliamentarianism  & parliamentary history (e.g. Chandler, Timberland, Bradshaw, Robert’s Rules of Order, Bourinot’s Rules of Order, Jefferson’s Manual and the Rules of the House of Representatives). Without boring you with details, this is partly out of professional interest, stemming from my new position. But I also found it very interesting reading, and I think it is a trend that will continue this year.

Other than that, there are no prominent patterns to my reading this year, except perhaps for a slight tilt towards 17th-century English Toryism and Anglicanism: Lord Clarendon, Richard Hooker, The Book of Common Prayer, Charles I’s Eikon Basilike (as well as Jeremy Taylor sermons, which won’t appear until next year’s list, as I’m still reading them).

As with previous years’ lists, those books that I particularly enjoyed are bolded.

*    *    *    *

ALDERSEY-WILLIAMS, Hugh. The Adventures of Sir Thomas Browne in the 21st Century. London: Granta Publications, 2015.

AUBREY, John. John Aubrey’s Brief Lives. Richard Barber (ed.). London: The Folio Society, 1975.

AUSTEN, Jane. Pride and Prejudice. London: Folio Society, 1975.

BERKELEY, George. A Treatise concerning the Principles of Human Knowledge, and Three Dialogues between Hylas and Philonous. London: Jacob Tonson, 1734 (facsimile, Menston, UK: Scolar Press, 1971.

BLAKE, Sara. Administrative Law in Canada (5th edition). Markham, ON: LexisNexis, 2011.

BRADSHAW, Kenneth and David PRING. Parliament and Congress. London: Quartet Books, 1973.

BROWN, Charles Brockden. Arthur Mervyn: or, Memoirs of the Year 1793. Kent, OH: Kent State University Press, 1980.

BUCK, George. The History of the Life and Reigne of Richard the Third. London: W. Wilson, 1647 (facsimile, London: EP Publishing, 1973).

BURTON, Robert. The Anatomy of Melancholy (Vol. II). London: Everyman Library, 1932.

CHANDLER, Richard (ed.). The History and Proceedings of the House of Commons (Vol. I: 1660-1680). London: Richard Chandler, 1742.

CHARLES I. Eikon Basilike, or The King’s Book. London: Alexander Moring, 1904.

CHURCH OF ENGLAND. The Book of Common Prayer. New York: Everyman’s Library, 1999.

CLARENDON, Edward Hyde, Earl of. The Life of Edward Earl of Clarendon (Vol. I). Oxford: Clarendon Press, 1817.

COKE, Sir Edward. Three Law Tracts. William Hawkins (ed.). London: J. Worrall, 1764 (facsimile, Abingdon, UK: Professional Books Limited, 1982).

COLERIDGE, Samuel Taylor. Collected Works, Vol. 6: Lay Sermons. R. J. White (ed.). London: Routledge and Kegan Paul, 1972.

CUMMINGS, Brian (ed.). The Book of Common Prayer: The Texts of 1549, 1559, and 1662. Oxford: Oxford University Press, 2011.

DESCARTES, René. Philosophical Essays and Correspondence. Roger Ariew (ed.). Indianapolis: Hackett Publishing Company, 2000.

DISRAELI, Benjamin. Tory Democrat: Two Famous Disraeli Speeches. Sir Edward Boyle (ed.). London: Conservative Political Centre, 1950.

FITZGERALD, F. Scott. Tales of the Jazz Age. New York: Charles Scribner’s Sons, 1966.

GODWIN, William. The Enquirer: Reflections on Education, Manners, and Literature. London: G. G. and J. Robinson, 1797 (facsimile, New York: Augustus M. Kelley, 1965).

GODWIN, William. Enquiry concerning Political Justice (Vol. I). London: G. G. and J. Robinson, 1798 (facsimile, Toronto: University of Toronto Press, 1969).

HART, H. L. A. Law, Liberty, and Morality. Stanford, CA: Stanford University Press, 1963.

HAYEK, Friedrich A. Law, Legislation and Liberty (Vol. 1: Rules and Order). Chicago: University of Chicago Press, 1973.

HAYEK, Friedrich A. Law, Legislation and Liberty (Vol. 2: The Mirage of Social Justice). Chicago: University of Chicago Press, 1976.

HAYEK, Friedrich. A. Law, Legislation and Liberty (Vol. 3: The Political Order of a Free People). Chicago: University of Chicago Press, 1979.

HELVÉTIUS, Claude Adrien. A Treatise on Man; His Intellectual Faculties and His Education (Vol. I). W. Hooper (trans.). London: Vernor, Hood and Sharpe, 1810 (facsimile, New York: Burt Franklin, 1969).

HELVÉTIUS, Claude Adrien. A Treatise on Man; His Intellectual Faculties and His Education (Vol. II). W. Hooper (trans.). London: Vernor, Hood and Sharpe, 1810 (facsimile, New York: Burt Franklin, 1969).

HERBERT, George. The Complete English Works. Ann Pasternak Slater (ed.). New York: Everyman’s Library, 1995.

HESIOD. Theogony, Works and Days, Testimonia. Glenn W. Most (trans.). Cambridge, MA: Harvard University Press, 2006.

HOGG, James. The Private Memoirs and Confessions of a Justified Sinner. John Carey (ed.). London: Oxford University Press, 1969.

HOOKER, Richard. The Works of that Learned and Judicious Divine, Mr. Richard Hooker, Containing Eight Books of the Laws of Ecclesiastical Polity (Vol. I). Oxford: Clarendon Press, 1807.

HORACE. A Poetical Translation of the Works of Horace (Vol. II). Philip Francis (trans.). London: W. Strahan et al., 1778.

JOHNSON, Charles W. Constitution, Jefferson’s Manual, and Rules of the House of Representatives of the United States (105th Congress). Washington, DC:  U.S. Government Printing Office, 1997.

JOHNSON, Samuel. A Journey to the Western Islands of Scotland (Works, Vol. IX). Mary Lascelles (ed.). New Haven, CT: Yale University Press, 1971.

KEYNES, John Maynard. The General Theory of Employment, Interest and Money (Collected Works, Vol. VII). London: Macmillan, 1973.

LOCKE, John. Questions concerning the Law of Nature. Robert Horwitz, Jenny Strauss Clay, and Diskin Clay (eds. and trans.). Ithaca, NY: Cornell University Press, 1990.

LOCKE, John. An Essay concerning Human Understanding. Peter H. Nidditch (ed.). Oxford: Clarendon Press, 1990.

MARLOWE, Christopher. The Poems. Millar MacLure (ed.). London: Methuen and Co., 1968.

MILL, John Stuart. On Liberty. New York: Everyman’s Library, 1992.

OVID. Ovid’s Metamorphoses: The Arthur Golding Translation 1567. Philadelphia: Paul Dry Books, 2000.

POPE, Alexander. Selected Prose of Alexander Pope. Paul Hammond (ed.). Cambridge: Cambridge University Press, 1987.

ROBERT III, Henry M., et al. Robert’s Rules of Order Newly Revised (11th edition). Philadelphia, PA: Da Capo, 2015.

ROCHEFOUCAULD, François, Duc de La. Maximes. London: Arthur L. Humphreys, 1902.
ROWTHORN, Robert. The Costs and Benefits of Large-scale Immigration: Exploring the economic and demographic consequences for the UK. London: Civitas, 2015.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. Standard Edition, III,1: Correspondence (Letters 1-100). Stuttgart-Bad Cannstatt: Frommann-Holzboog, 2018.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. A Letter concerning Enthusiasm, to My Lord *****. London: J. Morphew, 1708.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. Sensus Communis: An Essay on the Freedom of Wit and Humour. London: Egbert Sanger, 1709 (facsimile, New York: Garland Publishing, 1971).

SHAFTESBURY, Nicholas Ashley-Cooper, 12th Earl of, and Tim KNOX. The Rebirth of an English Country House: St. Giles House. New York: Rizzoli, 2018.

SIDNEY, Algernon. Court Maxims. Hans W. Blom, Eco Haitsma Mulier, and Ronald Janse (eds.). Cambridge: Cambridge University Press, 1996.

SMITHERS, Peter. The Life of Joseph Addison (2nd edition). Oxford: Clarendon Press, 1968.

SPENCE, Joseph. Observations, Anecdotes, and Characters of Books and Men (Vol. I). James M. Osborn (ed.). Oxford: Clarendon Press, 1966.

STANFORD, Geoffrey. Bourinot’s Rules of Order (4th edition). Toronto: McClelland and Stewart, 1995.

STEELE, Richard, Joseph ADDISON, et al. The Tatler (Vol. IV). George A. Aitken (ed.). London: Duckworth and Co., 1899.

STEELE, Richard, Joseph ADDISON, et al. The Guardian. John Calhoun Stephens (ed.). Lexington, KY: University Press of Kentucky, 1982.

STERNE, Laurence. Tristram Shandy. New York: Everyman’s Library, 1991.

SUN TZU. The Art of War. Peter Harris (trans.). New York: Everyman’s Library, 2018.

TIMBERLAND, Ebenezer (ed.). The History and Proceedings of the House of Lords (Vol. II: 1697-1714). London: Ebenezer Timberland, 1742.

TIMBERLAND, Ebenezer (ed.). The History and Proceedings of the House of Lords (Vol. VI: 1738-1740). London: Ebenezer Timberland, 1742.

TIMBERLAND, Ebenezer (ed.). The History and Proceedings of the House of Lords (Vol. VII: 1740-1741). London: Ebenezer Timberland, 1742.

TIMBERLAND, Ebenezer (ed.). The History and Proceedings of the House of Lords (Vol. VIII: 1741-1743). London: Ebenezer Timberland, 1743.

VANCE, J. D. Hillbilly Elegy: A Memoir of a Family and Culture in Crisis. New York: Harper, 2016.

WALPOLE, Horace. Selected Letters. Stephen Clarke (ed.). New York: Everyman’s Library, 2017.

WHICHCOTE, Benjamin. Select Notions. London: Israel Harrison, 1685 (facsimile, Menston, UK: Scolar Press, 1971).

WORDSWORTH, William. Selected Poems. New York, Everyman’s Library, 2000.