A Curious Miscellany of Items Philosophical, Historical, and Literary

Manus haec inimica tyrannis.

Tuesday, July 11, 2017

William Wollaston (1659-1724)

In writing about the 18th-century British moralists, there is a certain point of controversy that comes up again and again in their writings, and which will therefore be next to impossible for me to avoid. In some ways, the topic was controversial because it was rather vague and ill-defined. I suspect that in my effort to explain it clearly and succinctly for the non-expert, I too will fall into that trap. But here goes…

Stated at its most vague, the question that exercised the British moralists so much was this: Does morality has its source in reason, or in sentiment? Those who believed the former came to be called moral rationalists, while those who believed the latter were called moral sentimentalists. The terminology is somewhat unfortunate, because it is very easy to find sentimentalist ideas in rationalist writers, and vice versa.

In any event, the debate seems muddled. I believe a large part of the reason for this is that when we talk about morality’s source lying in either reason or sentiment, we can mean any of at least four things by “source of morality”:

     1.    The source of moral knowledge.
     2.    The source of moral motivation.
     3.    The source of moral obligation.
     4.    The source of moral judgments.

Our answer to the vague question of morality’s source may change depending on which of these we’re talking about. For example, if we’re talking about moral knowledge, it would be natural to see this as based in reason. However, if we’re talking about motivation, then we might — à la Hume — believe that reason is of itself inert and cannot move us to action without the motive force of the passions. We might know our duty, but performing it is a different matter. Dr. Johnson expressed the knowledge/action gap rather eloquently when he wrote that

“It very commonly happens that speculation has no influence on conduct. Just conclusions, and cogent arguments, formed by laborious study, and diligent enquiry, are often reposited in the treasuries of memory, as gold in the miser’s chest, useless alike to others and himself. As some are not richer for the extent of their possessions, others are not wiser for the multitude of their ideas.” (Rambler No. 98)

It’s even trickier when we talk about moral judgments. For example, one might conceive of judgment as a matter of arriving at a conclusion from premises through a process of ratiocination; in which case it would be natural to see judgment as connected with knowledge, and by extension, with reason (even while accepting that reason may err). However, if one conceives of judgment as unmediated assent to a proposition, akin to intuition, then there may be room here for sentiment to play a role.

One anecdote neatly illustrates this confusion of concepts. In the first edition of John Brown’s (1715-1766) Essays on the Characteristics of the Earl of Shaftesbury (1751), the title of the second essay was “On the Obligations of Man to Virtue”. In the same year, a second edition of the book was printed, in which the essay’s title had been changed to “On the Motives to Virtue”. In every other respect, the essay remained unchanged. Now, obligations and motives are very different things. One can be obligated without being motivated, and vice versa. One can be both obligated and motivated, even though one’s motivation may come from venal and very immoral reasons. The change of title suggests that much of the core of what the British moralists were arguing about was not very clear even to themselves. It was, however, a muddle that proved very fruitful in new ideas. This weakness was, paradoxically, advantageous for discourse on morals in 18th-century Britain.

Putting aside for the moment the various confusions that often caused rationalists and sentimentalists to talk past one another, let us turn to our next British Moralist.

William Wollaston (1659-1724) was a thinker who, as we will see, fell into the rationalist camp. Of the man himself, there is little to say. He was born into a not-very-wealthy branch of an old family. He attended Cambridge, after which he was a schoolmaster for a time. Subsequently he took holy orders and became a curate, a lowly position in the Anglican Church. He toiled away in this relative obscurity until, at the age of 29, he inherited the estate of a wealthy uncle. From that time, he took up the — in my opinion perfect — life of an independent scholar-gentleman. He married and had children. In 1722 he privately published the book for which he achieved his allotted degree of fame, The Religion of Nature Delineated. In 1724 it was released publicly, and in the same year, Wollaston died.

Though almost unread now, The Religion of Nature Delineated (hereinafter referred to as RND) was extraordinarily popular in the 18th century, going through 22 editions by 1800. Benjamin Franklin was in London working for Wollaston’s publisher, Samuel Palmer, when he typeset an edition of the book in 1726.

Broadly speaking, RND was a rather idiosyncratic attempt to provide a theory of morals without relying upon revealed religion. For our purposes, the meat of the book is really contained in its first 20 pages or so. Wollaston develops the foundations of his theory in a series of propositions, the first of which is, “That act, which may be denominated morally good or evil, must be the act of a being capable of distinguishing, choosing, and acting for himself: or more briefly, of an intelligent and free agent” (p. 7). Already, we see one sense in which his theory is rationalist, since he is essentially saying that only an intelligent agent is capable of performing actions that may be denominated right or wrong, because only such an agent is capable of distinguishing moral truth. And only a free agent is capable of choosing to act based on that distinction.

So far there is nothing particularly new or controversial. In the next proposition, he expresses what he basically means by truth: “Those propositions are true, which express things as they are: or, truth is the conformity of those words or signs, by which things are exprest, to the things themselves” (p. 8). Put in the technical language of current philosophy, Wollaston adheres to an old school correspondence theory of truth, which essentially holds a proposition to be true which corresponds with the facts it expresses. Again, nothing particularly new or remarkable about this claim, certainly not by the standards of the time, anyway.

It is his third proposition that is really at the core of what made Wollaston’s theory distinctive. He asserts that “A true proposition may be denied, or things may be denied to be what they are by deeds, as well as by express words or another proposition” (p. 8). Our actions may be characterized as signs or propositions that assert facts or states of affairs. To put it in the terms of modern logic, an action can have a truth-value, in the same way that a spoken or written proposition may be true or false.

So, for example, by appropriating your laptop without your permission, my action affirms a certain state of affairs, namely that the laptop belongs to me rather than to you. Since this is not the case, I have in effect affirmed something that is false. That is what makes the action immoral, according to Wollaston.

Furthermore, just as with a stated proposition, an action affirms something that is true or false regardless of whether the agent knows it: “The truth or falsehood of [an] affirmation doth not depend upon the affirmer’s knowledge or ignorance: because there is a certain sense affixt to the words, which must either agree or disagree to that, concerning which the affirmation is made. The case is the very same still, if into the place of words, be substituted actions” (p. 9). So, whether I knew the laptop was yours or mistakenly believed it to be mine, my action would be wrong — or false — regardless.

Not only may truths be expressed in deeds as well as in words, but deeds can be even more expressive than words. To illustrate, Wollaston used the biblical story of Isaac and Abimelech. Isaac went to dwell among the Philistines with his wife, Rebekah. In order to keep her safe (don’t ask), he passed her off as his sister. But the jig was up when King Abimelech looked out a window and saw Isaac “sporting” with Rebekah. Wollaston continues,

"In the Jewish history we read, that when Abimelek saw Isaac sporting with Rebekah, and taking conjugal liberties, he presently knew her to be Isaac’s wife; and if she had not been his wife, the case had been as in the preceding instance. If it be objected, that she might have been his mistress or a harlot; I answer, that so she might have been, tho Isaac had told him by words that she was his wife. And it is sufficient for my purpose, and to make acts capable of contradicting truth, if they may be allowd to express things as plainly and determinately as words can. Certainly Abimelek gave greater credit to that information which passed through his eye, than to that which he received by the ear; and to what Isaac did, than to what he said. For Isaac had told him, that she was not his wife, but his sister." (p. 11)

When given the choice between believing the spoken affirmation “Rebekah is the sister of Isaac” or the action-affirmation “Rebekah is the wife of Isaac”, Abimelech believed the latter. In other words, not only do actions speak like words; they sometimes speak louder than words.

Here is a summary outline of Wollaston’s rationalist theory of morals:

     1. There are eternal moral truths. 
     2. Actions may affirm or deny these truths. 
     3. When our actions affirm these truths, they are good. 
     4. When our actions deny these truths, or affirm their opposite, they are bad. 
     5. Such actions are good or bad regardless of whether or not the agent intends to affirm or deny these truths. 

Much of the rest of RND is spent in demonstrating our rights and duties and how these are conformable to these claims.

(As a matter of fact, this is a pattern one finds in most of the works of the British moralists: a theory is laid out, sometimes relatively quickly, and then rights and duties are derived from the theory. This last latter part is often the least interesting, since the various writers rarely disagree fundamentally on what these rights and duties are. In fact, it is remarkable that such lively debates in moral philosophy could take place when, on what really matters — conduct, — they were in violent agreement. 18th-century Britain was after all still a society with a large set of shared moral values.)

Some Objections to Wollaston’s Theory.

Given the above admittedly oversimplified outline of Wollaston’s theories, a few objections may immediately come to mind.

First, Wollaston seems to essentially reduce moral obligation to the obligation to tell the truth (or avoid falsehood) in our words and deeds. But reducing all moral obligations to this single one means that we still have this one obligation that remains ungrounded. We have a duty to always tell the truth, but why? And remember, Wollaston’s aim was to explain morality without reliance on revealed religion, so he can’t simply say “Because God wills it”.

I think John Brown, who was mentioned earlier, was pointing to the same problem when he wrote that “’Virtue, saith this learned Writer [Wollaston], consists in a Conformity of our Actions with Truth; in treating every thing as being what it is.’ Well: be it so. Yet the Question still recurs, what is moral Truth? And this demands a Definition no less than Virtue, which was the Thing to be defined” (pp. 119-120). In other words, for Wollaston, “moral truth” seems to play the same role as “virtue”. So saying that we have a duty to conform our actions to moral truth is the same as to say that we have a duty to be virtuous, which is not very enlightening. For one thing, how do we know what is morally true/virtuous? For another, what makes it true/virtuous? Wollaston evades the really important questions.

Second, Wollaston seems to reduce all moral wrong to falsehood, as if vices were mistakes in math or logic. But isn’t there a fundamental difference in kind between morals wrongs and, say, errors in arithmetic?

A third possible objection stems from this perennial philosophical question: What, if any, is the relationship between the True, the Good, and the Beautiful? Shaftesbury had taken much heat from his critics for (supposedly) trying to reduce the Good to the Beautiful, and promoting what some later writers (e.g. Valihora) would call an “aesthetic theory of morality”. One can see how someone holding an aesthetic theory of morality might fall naturally into the sentimentalist camp: if moral good is a form of beauty, and if beauty is rather felt than thought, then morality becomes largely a matter of feeling. But is the Good reducible to the Beautiful? And can sentiment produce reliable moral judgments without the interposition of rational thought? No, said Shaftesbury’s critics. (In truth, this is merely a cartoonish oversimplification of Shaftesbury.)

If the reduction of the Good to the Beautiful is the original sin of the sentimentalists, then perhaps the reduction of the Good to the True is the original sin of rationalists such as Wollaston. Is the Good reducible to the True? If so, why do we not get worked up about arithmetical error in the same way we get worked up about moral error (our second objection, above)? Although we may theorize about it, morality is fundamentally practical, and not merely theoretical.

Fourth, Wollaston seems to make out all forms of immorality to be akin to acts of lying or of ignorance, of denying what is true or of affirming what is false, whether intentionally or mistakenly. But isn’t the moral wrongness of telling a lie different in both kind and degree from, say, the wrongness of murder? More on this below…

Clarke’s Objections to Wollaston.

The year after RND was published and Wollaston died, a 63-page pamphlet appeared entitled An Examination of the Notion of Moral Good and Evil, Advanced in a late Book entitled, the Religion of Nature delineated (1725). Its author was an obscure grammar school teacher named John Clarke (1687-1734). Despite his rather turgid prose style, it turns out that Mr. Clarke was an able and perceptive critic of Wollaston. I will offer below some of his objections, which supplement the ones we have already considered.

First, Clarke notes a fallacy in Wollaston’s claims that our actions may affirm or deny truths:

"I desire the Reader to take notice, that Affirming and Denying are Actions, which in strict Propriety of Language are only applicable to Agents; so that Actions, whether Words or Deeds, can not be properly said to affirm or deny any thing; the Agent only can be properly said to affirm or deny Truth by his Actions, whether Words or Deeds…. Thus for Instance, a Person that should pronounce, in the hearing of others, Words in the Greek Tongue, which he understands not, equivalent to this Proposition in English, There is no God, could not be said to deny the being of God." (pp. 6-9, misnumbered)

Put another way, Wollaston writes as if words and deeds are disembodied and free-floating entities with an independent truth-value of their own. The agent is just the occasion from which they issue, and when they are false, the agent has “done” something morally culpable, regardless of what was going on in his head when the said entities issued forth.

Clarke, on the other hand, is saying that whatever immorality there is in in one’s action, it must come from the agent’s understanding of what he is doing. If I babble a bunch of foreign words I do not understand, I cannot be said to have told a lie, since I haven’t really “told” anything. Whereas, Wollaston’s theory makes no allowance for such a case, and must treat a man as immoral who says something untrue, even unintentionally, or even if he is incapable of understanding what he has said. I would further add, that in the case of deeds, the same absurdity would seem to hold: if I am coerced into doing an immoral deed, I must be just as culpable as if I did it voluntarily, as far as Wollaston is concerned. Accepting that actions can be said to deny or affirm propositions independently of the intentions of the agent, as Wollaston seems to do, is to ascribe the same moral culpability to someone who does not intend to deny truth as to one who does (p. 12). In other words, it fails to distinguish between a lie and an error.

Clarke also notes that many of the worst kinds of immoral actions do not seem to involve any denial of truth or affirmation of falsehood at all. Indeed, using the example of a highwayman demanding money at gunpoint (p. 11), Clarke says that the demand, backed by threat of violence, is neither a denial of the true proposition that the money belongs to the victim, nor an affirmation of the false proposition that the money rightfully belongs to the highwayman. Quite the opposite, in fact. The violence of his act speaks volumes about whom the money really belongs to. And in any case, be cannot be said to be affirming or denying any proposition. He is imply making coercive threat; he is not trying to convince the victim that his money is not his own.

We might go further here than Clarke. We might say that, even if the highwayman were affirming a proposition, it might be the proposition “I will shoot you if you don’t give me your money”. Assuming that the highwayman intends to carry through on his threat, then on Wollaston’s theory, the highwayman is behaving virtuously in affirming what is true!

When we talk of actions as affirming or denying propositions, Clarke notes that there is always the problem of interpretation, of figuring out precisely which proposition is being affirmed or denied. Deeds, like words, may be misinterpreted. Clarke argues that in many cases deeds may lack the eloquence of words:

"Does a Man break a Bargain? this is, according to Mr. Wollaston, denying the Truth by Action, denying there was any Bargain: Tho’ if another might take the same Freedom, or pretend to the like Skill for the finding out the Sense and Meaning of Actions, he would be apt to think it perhaps not a Denial of the Bargain, as tho’ there had been none, but of the Obligation only to keep it. Another Critic in Actions would perhaps find it out to be a Denial of neither, but an affirmation rather of this Proposition, that the Breach of the Bargain was a likely means to rook his Chapman of some Money…" (p. 13)

There is an indeterminacy of meaning to words and deeds.

Finally, to the list of objections to Wollaston’s theory, we can add the following humorous reductio ad absurdum from Clarke. If, as Wollaston claims, virtue lies in always affirming truth in our words and deeds, then “it will then be a glorious Exercise for a Man to spend his Time in thrumming over such worthy and weighty Propositions as these, A Man’s no Horse, a Horse no Cow, a Cow no Bull, nor a Bull an Ass” (p. 19). The most reliable road to moral sainthood would, then, seem to be to spend several hours a day sitting in an armchair and rattling off as many true propositions as come to mind.

Although Wollaston’s book sold extremely well, his theory cannot be said to have had many professed adherents. The general opinion seems to have been that the theory was ingenious but utterly wrong. In retrospect, like Hobbes before him, Wollaston’s most lasting contribution to 18th-century moral theory came from the various refutations it spawned.


BROWN, John. Essays on the Characteristics. London: C. Davis, 1751 (facsimile, Hildesheim: Georg Olms, 1969).

CLARKE, John. An Examination of the Notion of Moral Good and Evil, Advanced in a late Book entitled, the Religion of Nature delineated. London: A. Bettesworth, 1725.

VALIHORA, Karen. Austen’s Oughts: Moral Judgment after Locke and Shaftesbury. Newark, DE: University of Delaware Press, 2010.

WOLLASTON, William. The Religion of Nature Delineated. London: Samuel Palmer, 1724 (facsimile, Delmar, NY: Scholars’ Facsimiles and Reprints, 1974).

Monday, June 26, 2017

The Cambridge Platonists

Benjamin Whichcote (1609-1683)
As mentioned in my previous post, this is the first of a series on the great period of the British moralists, extending from roughly 1650 to 1800.

Professional philosophers make a living by arguing against one another, and society has decided, for its own reasons, that it would like to pay certain people to make a profession out of disagreeing. And yet, strangely, the fact is that modern Anglo-American academic philosophers are really birds of a feather. The majority of them, it seems, share the following beliefs in some form: free will is an illusion; truth is subjective or is a function of power; veridical knowledge about the world is not possible (scepticism); morality is largely a matter of either subjective feeling (emotivism, non-cognitivism) or group agreement (cultural relativism), or an illusion (nihilism); the universe is reducible to force acting on passive matter ; the human agent is a causally determined machine made of flesh and propelled by desires and appetites; human beings are not special, but are just animals with somewhat more complicated brains; there is no such thing as objective beauty; there is no such thing as a soul; there is no such thing as a God.

This list is not exhaustive, but it is certainly depressing. And looking at it, one is struck by how much the modern philosopher is the direct heir of her famous 17th-century predecessors. During the middle of that century, Descartes was arguing that the universe was reducible to matter pushed by matter. At the same time, Hobbes was arguing that men were nothing more than meat puppets motivated by selfish appetites, and that right and wrong had no basis in reality other than a sovereign’s ability to impose them by force.

Some brave souls struggled, however vainly, against this reductionist impulse. Imagine for a moment a time and place where there were English-language academic philosophers who (i) wrote in elegant and beautiful prose (almost inconceivable now); who (ii) believed that Right and Wrong, Good and Evil, were distinctions with a sound basis in the nature of things; who (iii) defended the concepts of free will and ultimate responsibility for one’s actions; who (iv) believed that rather than being an inert, passive collection of matter, the universe is alive and active; and who (v) similarly believed that the mind is an active power that makes knowledge as much as it passively receives it.

This broad and unfashionable-sounding philosophical profile is characteristic of a group of 17th-century thinkers associated with Cambridge University, and particularly with Emmanuel College, a group that later came to be labelled “the Cambridge Platonists”. It is precisely this broad and unfashionable profile that makes these figures rather difficult to explain today.

To be honest, in discussing the Cambridge Platonists, I’m not quite sure where to begin. I suppose we might start with style, with their elegant prose. The first thing to keep in mind is that although they were academics, they were also clergymen. In other words, the course of their professional duties required a lighter touch, since they had to deliver sound theological doctrine, moral exhortation, and religious inspiration to congregations who were not academics themselves, or indeed were illiterate. Hence, to a professional academic philosopher of today, their writings — many of which appear in the form of sermons — can seem flaky and eccentric. But they are often extremely poetic. Take, for example, this characterization of the spiritually deadening effects of excessive self-interest offered by Peter Sterry (1613-1672): “A little Bird ty’d by the Leg with a String, often flutters and strives to raise itself; but still it is pull’d down to the Earth again: Thus a Soul fixt in a Self-Principle, may make attempts to Pray and Offer at the Bosom of God; but still it is snatch’d down by that String of Self, which ties it to the Ground” (Pinto 169). I admit there is great charm in this little simile. The author has that poetic eye, which sees the very great in the very small.

Not all of Sterry’s imagery was equally felicitous. For example, there is something rather improper in this one: “There is not the lowest thing, which hath not God in it; for God fills all: Yet as the Sun-Beams fall on a Dunghill, and are not polluted; so God is still himself to himself, high and glorious in the lowest Things” (Pinto 150). Put charitably, this might be characterized as the author’s poetic eye seeing the very small in the very great, to ill effect.

Another choice little gem comes from the lyrical pen of John Smith: “When we look unto the Earth, then behold darkness and dimness of anguish, that I may use those words of the Prophet Esay [Isaiah 8:22]: But when we look towards Heaven, then behold light breaking forth upon us, like the Eye-lids of the Morning, and spreading its wings over the Horizon of mankind sitting in darkness and the shadow of death, to guide our feet into the way of peace [Luke 1:79]” (Patrides 151).

Interestingly, among the Cambridge Platonists, Sterry was a bit of an oddball. For one thing, he was a Puritan. As a matter of fact, he was Oliver Cromwell’s chaplain. Most of the other Cambridge Platonists were Anglican, though of a latitudinarian persuasion. Also, while the others had their poetic flights, they usually succeeded in remaining firmly grounded in reason. Sterry, on the other hand, was a mystic, and some of his flights, though somehow quite dazzling, were also utterly incomprehensible if one stopped to reflect on them for too long, as in this example: “A bright or light Body, like the Sun, sends forth millions of Beams round about from every Point of itself. Such a Brightness, such a Fruitfulness is there in the Person of Christ; Millions of Angels every Moment spring and sparkle forth from him” (Pinto 153). This is a beautiful gem, but one isn’t quite sure what to do with it.

At his mystical best, Sterry was a poet of those little contemplative silences, where God is to be found: “Put out then every Spark of Creature Light or Life in your Spirits, and you shall find yourselves immediately in the Light of God. A deep Silence of all created Objects ushers in the Appearances of God in the Soul” (Pinto 184). And consider this, which he wrote in a letter to his son: “As musick is conveyed sweetest and furthest upon a river in ye Night: so is ye Musick of ye heavenly voice carried most clearly, pleasantly to ye understanding, when all ye outward senses ly wrapt up in darkness, and ye depth of night” (Pinto 184).

Sterry was a sort of poet who wrote in prose. Not all of the Cambridge Platonists were excellent stylists. Henry More (1614-1687), for instance, was a wretched writer. He also tried his hand at actual poetry, to embarrassing effect. Two things were mainly responsible for making More’s poetry bad. First, his favourite poet was Edmund Spenser, particularly the latter’s Faerie Queen, which was written in a peculiar stanza form, and used language that was self-consciously archaic and hearkened back to Middle English verse. With Spenser it has a certain charm, and certainly it flows. Here’s the effect when More employs (perpetrates?) a similar style:

     Nor Ladies loves, nor Knights brave martiall deeds,
     Ywrapt in rolls of hid Antiquitie;
     But th’inward Fountain, and the unseen Seeds,
     From whence are these and what so under eye
     Doth fall, or is record in memorie,
     Psyche, I’ll sing. Psyche! from thee they sprong.
     O life of Time, and all Alterity!
     The life of lives instill his nectar strong,
   My soul t’inebriate, while I sing Psyches song.
(“Psychozoia,” Canto I, stanza 1, in Philosophicall Poems, p. 1).

Secondly, More uses this poetical form to express very abstract philosophical concepts, deploying a Greek-derived philosophical inkhorn jargon. Long Greek words tend not to sit very naturally within English versification, partly because they don’t scan well, and partly because the reader must stop the flow to mentally construe the meaning of such terms:

    “Plain death’s as good as such a Psychopannychie.”

Wretched stuff. None of this is to say that More wasn’t a good philosopher; he was just a terrible writer, bad enough to make Kant proud. I could say much more about style, but I’d rather move on to content.

Active Minds

I mentioned above that unlike Hobbes and Descartes (and later Locke), who saw the human mind along the lines of a lump of wax passively receiving sensory impressions, the Cambridge Platonists conceptualized the mind as an active power that makes knowledge rather than merely receiving it. On this, the best spokesperson is probably Ralph Cudworth (1617-1688). Cudworth insisted that one way the active nature of the human mind manifests itself is in the integration of the various sensory impressions it receives: “The Sight cannot Judge of Sounds which belong to the Hearing, nor the Hearing of Light and Colours; wherefore that which judges of all the Senses and their several Objects, cannot be it self any Sense, but something of a superior Nature” (Treatise 70). In other words, there must be some active intellectual power that actively integrates and interprets information from all the various senses, and which cannot itself be a sense, but is something that is prior to sensory knowledge.

It is not just that the sensationalist psychology leaves unexplained how the various passively received sensory impressions get integrated without the active power of the mind. Hobbes and his ilk, in their rush to reduce knowledge to sensory impressions, effectively reduce all sense impressions to impressions of one sense — touch, since all sense is a reducible to matter impacting upon the sensory organs. Thus, they lose the basis for differentiation between the various senses (e.g. touch versus taste), and between different sensations within a sensory dimension (hard versus soft). Again, it is the active powers of the mind that make these discriminations (ibid. 60).

And since, says Cudworth, knowledge cannot be reduced to passively acquired sense-impressions without positing an active integrating and discriminating power, “Knowledge is not a Knock or Thrust from without, but it consisteth in the Awakening and Exciting of the Inward Active Powers of the Mind” (ibid. 99-100). Thus, he says, “It must needs follow from hence, that Knowledge is an Inward and Active Energy of the Mind it self, and the displaying of its own Innate Vigour from within, whereby it doth Conquer, Master and Command its Objects…” (ibid. 126).

“Connate” Knowledge and the Moral Sense

So, knowledge does not come solely — or even primarily — from the senses. The mind is active and, in a sense, creates knowledge using its own pre-existing resources. There is, then, such a thing as innate knowledge, prior to sensory experience. It is in this claim of innate knowledge that we find the Platonism of the Cambridge Platonists on display. However, instead of using the word “innate” they often prefer to use the term “connate” or “connatural”. Indeed, this latter terminology is so frequent in the writings of the Cambridge Platonists, and infrequent enough elsewhere, that it can almost serve as an identifier of the group. (As we’ll see, there are two other terms that also serve this purpose.) “Connatural” is not always used in the same way in their writings. For example, there are many places where it is synonymous with “innate”, in the sense of a kind of knowledge that is in the mind ab initio, not acquired. In other places it serves to describe knowledge that, though not necessarily present from the very first, develops early on and necessarily, as a function of the life form and history of the species. And sometimes for the Cambridge Platonists, “connatural” is used in the sense of “consistent with one’s nature”, as when Benjamin Whichcote (1609-1683) writes that “Man, as Man, is Averse to what is Evil and Wicked; for Evil is unnatural, and Good is connatural, to Man” (Moral & Religious Aphorisms #42).

Whichcote’s words show that moral knowledge is among that body of knowledge which is connate to man. Although we learn to make finer moral distinctions through experience, human beings have an innate understanding of right and wrong, good and evil. For the Cambridge Platonists, this understanding is sometimes ascribed to reason, and sometimes to “conscience”, though the latter term is often used as if it were the same thing as reason. This is because for them, reason is more akin to a sort of intuition; it is not necessarily ratiocinative. Again, here their Platonism is on display: understanding is often more a matter of directly grasping the truth rather than arriving at it by a process of explicit reasoning, of consciously moving stepwise from premises to conclusion.

For the Cambridge Platonists, there is a normative dimension to reason that allows for this identification of reason with conscience. Whichcote notes that reason has a directing force, because it is the voice of God. Therefore, “To go against Reason, is to go against God: it is the self same thing, to do that which the Reason of the Case doth require; and that which God Himself doth appoint: Reason is the Divine Governor of Man’s Life; it is the very Voice of God” (ibid. #76). The moral person listens to this voice and follows it. Disobedience to it is immorality. And when we ignore it, says Whichcote, we not only pay the price in terms of suffering the worldly consequences of error, we also suffer the sting of conscience: “If Reason may not command; it will condemn” (Select Sermons, p. 63; Moral & Religious Aphorisms #98).

Placed within the tradition of the British moralists, it is easy to see how this view of conscience as an intuitive grasping of moral truth leads naturally to the notion that we have a moral sense, which gives us access to moral truths much as sight grasps colours and shapes, and hearing grasps sounds. In other words, we can see in the Cambridge Platonists the beginnings of a “moral sense” school of thought. Shaftesbury, usually accredited as the founder of the moral sense school, edited — with a lengthy preface — an edition of Whichcote’s sermons (Select Sermons). As a matter of fact, this was Shaftesbury’s first published work. To credit Shaftesbury with inventing the moral sense is to ignore the fact that in the very volume that Shaftesbury edited, Whichcote wrote, “Man by his Nature and Constitution, as God made him at first, being an intelligent Agent, hath Sense of Good and Evil, upon a Moral account” (Select Sermons 232). Elsewhere, Whichcote wrote in a similar strain, “Man, by Reason, has apprehensions of Moral Good and Evil; as Animals, by Sense, distinguish Natural Good and Evil” (Moral & Religious Aphorisms #146). Of Shaftesbury’s two most prominent followers, Hutcheson preferred the language of “moral sense”, while Butler seems to have preferred “conscience”, the term more commonly used among the Cambridge Platonists.

“The Candle of the Lord”

So, in the Cambridge Platonists, we have a view of the mind as active, and as directing conduct through reason or conscience. This “reason-or-conscience” is connatural to man. I also said that the use of the word “connatural” is often a telltale sign that one is reading the Cambridge Platonists (Shaftesbury used it too). This is a good place to introduce another phrase peculiar to the Cambridge Platonists. They seem to have had an obsession with Proverbs 20:27: “The spirit of man is the candle of the Lord.” This image of the mind as the candle of the Lord is recurrent throughout the writings of this group.

Whichcote uses it when he writes that “The Spirit of a Man is the Candle of the Lord; Lighted by God, and Lighting us to God” (Moral & Religious Aphorisms #916). Nathaniel Culverwell (1619-1651) is often mentioned in connection with the Cambridge Platonists, because he taught at Emmanuel College, but he is usually considered not to be one of them, because his philosophical opinions are more heterodox — in his writings there is a heavy natural law influence, and he often cites Descartes with approval. However, I do consider him a Cambridge Platonist, largely on the grounds that he too was a heavy user of the “candle of the Lord” metaphor, as when he writes, “But the publishing and manifestation of this Law which must give notice of all this, does flow from that heavenly beame which God has darted into the soul of man; from the Candle of the Lord, which God has lighted up for the discovery of his owne Lawes; from that intellectual eye which God has fram’d and made exactly proportionable to this light” (Elegant and Learned Discourse 71).

What do Cambridge Platonists mean when they say that the mind is the “candle of the Lord”? Well, first, God is the source of all intellectual light (again, this is Platonism). But a finite portion of this infinite light has been placed in each of us, on purpose, that we may shed some of its rays to cut through darkness and illuminate His works. Recall John Smith’s words, quoted earlier: “But when we look towards Heaven, then behold light breaking forth upon us, like the Eye-lids of the Morning, and spreading its wings over the Horizon of mankind sitting in darkness and the shadow of death, to guide our feet into the way of peace.” We are surrounded by darkness, and all we have is this little candle to guide us and prevent us from stumbling around blindly.

Henry More has an interesting take on the “candle of the Lord” image. He seems to include our passions and affections as part of this luminous candle: “Nevertheless, we do not pretend, in the least, to have the Passions of the Mind exterminated. We rather account of them… as of the very Organs of the Body, and as distinctly useful… Wherefore if we can but skill our Passions aright, They are as Lamps or Beacons, to conduct and excite us to our Journey’s end” (Account of Virtue 82-83). This is a truly remarkable passage. Most philosophers in the Western tradition, Descartes included, viewed the passions with deep suspicion, since they were seen to interfere with reason, clouding or distorting it. More, on the other hand, does not distrust the passions as such. Rather, since the passions are natural, we must have them for a purpose. The passions, “rightly skilled” or trained, are guides to the understanding of good and evil, or are at least tokens of such understanding. This acceptance of our passionate nature is another foreshadowing of Shaftesbury’s philosophy.

“Plastick Nature”

I mentioned earlier that the Cambridge Platonists set themselves against those philosophers, such as Hobbes, who viewed the universe as an inert, passive collection of matter bounces against other matter in the void, to no particular purpose. For the Cambridge Platonists, by contrast, the universe is active and purposive, a sort of living organism. Instead of simply existing, with its component parts bouncing against each other endlessly, the Cambridge Platonist universe can be said to be in a process of unfolding. Since the universe is God’s creation, it can even be said to be a thought in God’s mind, with a logic to it, much as there is with a chain of reasoning in the mind. We’ve already seen that minds are active. As with minds, so with larger nature. Everything is active, unfolding according to its own internal principles.

This brings us to the third of those terms — along with “connatural” and “candle of the Lord” — that are identifiers of Cambridge Platonist writing. This activity, this “unfolding of nature according to its internal principles” is called the universe’s “plastic nature”. Although the phrase, and variants of it, is common among all the writers in this group, it is especially prominent in Ralph Cudworth and John Smith. Cudworth, for example, complains of the inertness of the materialist philosophers’ universe in the following terms: “They make a kind of Dead and Wooden World, as it were a Carved Statue, that hath nothing neither Vital nor Magical at all in it. Whereas to those who are Considerative, it will plainly appear, that there is a Mixture of Life or Playstick [sic.] Nature together with Mechanism, which runs through the whole Corporeal Universe” (Patrides 290). The universe is not a mere machine. It is an organism that grows and develops: “[T]he World was not made by any whatsoever, after such a manner as an Artificer makes an House, by Machins and Engins, acting from without upon the Matter, Cumbersomly and Moliminously, but by a certain Inward Plastick Nature of its own” (Patrides 296).

John Smith makes an important point that serves to tie much of this metaphysics together with the concept of free will, for he says that as with nature, so too with the mind. Neither nature as a whole, nor the mind as a subset of nature, is wholly compelled by extraneous forces. Rather, it moves towards ends proposed by its own internal force: “There is a Plastick Virtue, a Secret Energy issuing forth from that which the Mind propounds to itself as its End, to mold and fashion it according to its own Model. The soul is alwaies stamp’d with the same Characters that are engraven upon the End it aims at; and while it converses with it, and sets it self before it, it is turned as Wax to the Seal, to use that phrase in Job [Job 38:14]” (Patrides 166). Where a Hobbist sees the motions of the mind as being caused by contingent, occurrent wants and desires, Smith sees the mind as active in proposing ends to itself, and that there is a “fit” between agent and ends. Note too the reversal here of the Cartesian image of the mind as wax passively receiving sensory impressions from the external world. Instead, Smith proposes that the mind is itself the seal, which leaves its impression upon the external world, through willing and acting.

A living and unfolding universe with meaning, free and active minds, an innate moral faculty, a sense of beauty, the reality of good and evil, the acceptance and celebration of our passionate nature… these things are the philosophical legacy of the Cambridge Platonists. Unfortunately, it is a legacy we have mostly squandered.


CUDWORTH, Ralph. A Treatise concerning Eternal and Immutable Morality. London: James and John Knapton, 1731 (facsimile, New York: Garland, 1976).

CULVERWELL, Nathaniel. An Elegant and Learned Discourse of the Light of Nature. Robert A. Greene and Hugh McCallum (eds.). Indianapolis: Liberty Fund, 2001.

MORE, Henry. Philosophicall Poems. Cambridge: Roger Daniel, 1647 (facsimile, Menston, UK: Scolar Press, 1969).

An Account of Virtue. Edward Southwell (trans.). London: Benjamin Tooke, 1690 (facsimile, New York: Facsimile Text Society, 1930).

PATRIDES, C. A. (ed.). The Cambridge Platonists. Cambridge: Cambridge University Press, 1980.

PINTO, Vivian de Sola (ed.). Peter Sterry, Platonist and Puritan, 1613-1672: A Biographical and Critical Study with passages selected from his Writings. Cambridge: Cambridge University Press, 1934.

WHICHCOTE, Benjamin. Select Sermons of Dr. Whichcot [sic.]. Edinburgh: G. Hamilton and J. Balfour, 1742 (facsimile, Delmar, NY: Scholars’ Facsimiles and Reprints, 1977).

Moral and Religious Aphorisms. London: Mathew Elkins and Marrot, 1930.

Friday, May 12, 2017

The British Moralists: Introductory

In the many university philosophy courses I took in my time — undergraduate and graduate — there were interesting figures who, for whatever reason, got left out of the canon. I went through my entire education without hearing the names of Thomas Reid or the Earl of Shaftesbury uttered in class. These are two figures who ended up having an important influence on my thinking, but about whom I had to learn for myself. Regular readers of this blog will know that the latter was beyond influential for me; without exaggeration, I can say that he was life-changing. So it is perhaps understandable that I feel I was shortchanged when it comes to my formal philosophical education.

Now, Western philosophy has a 2,500-year-old history, so perhaps we can be charitable and accept that the neglect of certain figures is inevitable; not everybody can be fit into the curriculum. But it is also true that that curriculum is itself partly a product of the whims, fancies, and tenure-seeking aspirations of a given generation of professional philosophers. The teachers of my generation unfortunately seemed to have been obsessed with Rawls, Wittgenstein, and Hume. Most of Rawls is really just obvious stuff, pilfered from other disciplines, mixed with some over-processed Kant, and packaged in the fashionable liberalism of mid-20th century America. Wittgenstein truly was a genius, but that genius was sadly wasted on a narrow set of philosophical problems that seems to outsiders a bit lacking in real-world relevance. And Hume, well, as a philosopher he was presented to me stripped of all philosophical or historical context except for his relation to Berkeley and Locke. His moral philosophy especially was therefore distorted beyond all recognition, because the people teaching it had no familiarity with Shaftesbury, Butler, or Wollaston (nor with Fielding, Richardson, or Johnson, for that matter).

These three names — Shaftesbury, Butler, Wollaston — demonstrate that sometimes it is not just isolated figures but entire movements and traditions that get left off philosophy’s curriculum. This is less excusable. The extraordinary flowering of moral philosophy in Britain between, say, 1650 and 1800 to me deserves to be considered almost as important an achievement as that more famous eruption of philosophical activity that occurred in ancient Athens. Hume was a Johnny-come-lately to that flowering, and frankly of lesser importance when set in his place within the tradition. In terms of their influence on thought, on literature, and on the arts of the long 18th century, certainly Shaftesbury and Bernard Mandeville must be rated the more important moralists. And yet, neither of these latter names was ever heard in a philosophy course that I attended. Instead, we were stuffed to overflowing with Hobbes and Hume.

(Why? I'm not sure. Perhaps the deep scepticism and non-cognitivism of these two men accorded more with the temper of mid- to late 20th-century academic moral philosophy.)

It was not always thus. There was still much interest in this heterogeneous group of philosophical moralists when L. A. Selby-Bigge published his two-volume anthology British Moralists in 1897. By 1969 they were still of enough importance that a new two-volume collection was thought to be warranted, The British Moralists, 1650-1800, edited by D. D. Raphael. Since then, there have been occasional monographs published on the subject, most prominent of which perhaps is Stephen Darwall’s 1995 book The British Moralists and the Internal ‘Ought’: 1640-1740. However, Darwall’s is characteristic of many of these, at least of the ones written by philosophers, which tend to present these thinkers as modern philosophers, using modern philosophical concepts to engage in modern philosophical debates, and stripped of their close connections to the broader artistic and literary context of their times.

I have commonplace books full of notes on these British moralists, and I have decided that I would like to make some use of them in this blog. I shall therefore periodically profile some of these people under the label “British moralists”. I will not bother with such figures as Hobbes and Hume, since they are not neglected in the schools and stand in no need of resurrection; in any case, I have nothing to say about them that hasn’t been said already. Instead I will profile the unsung heroes, such as David Fordyce, John Brown, Richard Cumberland, and the Cambridge Platonists. In doing so, I hope to be able to show that I am not engaging in hyperbole when I compare this flowering of philosophy to that of ancient Athens. I also hope to demonstrate what philosophy may be when (i) it deigns to engage with the real world, and (ii) when it does so in elegant literary prose, for many of these philosophers were also writers of real merit.

If this topic bores you, I promise that these posts will be only occasional, and I envision them being fairly brief.

Tuesday, May 2, 2017

Ricardian Law (Part II)

A serjeant-at-law, c. 1400

This is the second and final part of my paper, English Law in the Age of Richard III, a shorter version of which was delivered almost exactly one year ago to a meeting of the Richard III Society of Canada. This second part, in my opinion, is more challenging for the reader, in that it deals with material that is more complex and technical than that found in the first part.

At the end, you will find the notes for this part of the paper, as well as a list of references for both parts.

*          *          *          *          *

Contract Law

The action of trespass leads us to an area that was of growing importance in Ricardian times. During the lawlessness and violence of the 15th century, the action of trespass became a flexible tool for redressing many kinds of wrong not originally contemplated by the framers of the writ of trespass quare clausum fregit. From this unlikely beginning in tort law grew that very important branch of law now known as contract.

In the beginning there was no contract law as such. Roman law had it, English law did not. So what recourse did a plaintiff have when a defendant had breached a contract? Well, if the breach consisted of not paying for goods, there was an action of debt for money owed. If the breach consisted of not delivering goods paid for, there was the action of detinue for the detaining of goods belonging to another. If the breach consisted of breaking an agreement made under seal, there was the action of covenant. If the breach consisted of not returning goods lent, there was an action of replevin. This, then, sounds very much like there was an effective law of contract, even if it wasn’t called such. However, these actions had serious shortcomings, the most important of which was that they allowed for wager of law. [1] Another problem was that in order to bring an action of debt or detinue, for instance, a plaintiff had to prove intentional deceit, which was absent in many breach of contract situations, or at least hard to demonstrate.

To avoid these problems, plaintiffs began to bring actions of trespass instead. The advantage of trespass was that it didn’t allow wager of law. The problem, though, was that trespass was a tort, requiring that the wrong in question involve some kind of force or violence, the two most common writs of trespass being vi et armis (“force and arms”) and the already mentioned quare clausum fregit (“breaking of one’s close”). Again, these don’t really describe the circumstances of most breaches of contract. However, during the 15th century King’s Bench (the normal venue for trespass suits) began stretching this concept, by allowing some actions of trespass that didn’t obviously involve force or violence. These actions were called trespass “on the case”, so-called because the facts of the particular case would simply be inserted into the writ of trespass. [2] At some point people began suing for trespass on the case rather than for debt. This practice must have begun during the reigns of Edward IV or Richard III, though the earliest example I have found where an action of trespass on the case has been clearly allowed for what we call non-performance of a contract is Orwell v. Mortoft (1505). [3] From then on we have a line of cases culminating in Slade’s Case (1602), in which it was finally determined that (i) every executory contract implies a promise, or “assumpsit” in Latin, and that (ii) although on such a contract a plaintiff has an action of debt, he may also have an action of trespass on the case for the assumpsit. This new action came to be called simply “assumpsit” and forms the basis of the modern law of contract. [4]

It must be kept in mind that there were self-interested reasons for the court to allow such actions. The various courts were as much money-making enterprises as they were dispensers of justice. The various clerks and officials survived on fees. Therefore, the more cases that could be brought into a court, the more fees that court’s officials stood to gain. The Court of King’s Bench saw an opportunity to attract more business by allowing these very expansive writs of trespasses on the case. Sometimes a court made business for itself at the expense of another court. For example, the Court of Exchequer concerned itself with matters touching the King’s revenue. It was a tax court. However, its relatively simpler and faster procedures were attractive to other kinds of litigants. A person might bring his suit for debt to eth Exchequer on the dubious fiction that the unpaid debt made him less able to pay his taxes. It then became a revenue matter with which the Exchequer could concern itself. The Exchequer countenanced this practice because it brought the court new business and fees. This competition between courts for business could lead to substantive legal change. We have just seen an example of this in the development of contract, where the King’s Bench, in striving to attract business away from other courts, inadvertently invented what was to become a central branch of the law.

From what we have seen so far, we can make some general observations on the nature of medieval English law. One of the most striking features of it to modern eyes is how procedural it really is. We tend to think of “the law” as a system of rules that grant us certain rights and impose certain duties, along with the means to enforce these. We think, for instance, of the statute, which commands us to do or not do certain things, and lays out a penalty for violation. Most tellingly, we refer often to “the justice system”.

You will look in vain for any term corresponding to “justice system” in the medieval records. There are references to “the King’s justice”, but the system itself was viewed more as a system of formal methods and procedures to be used, abused, and manipulated in order to accomplish one’s goals. The “law” was no more than the forms and procedures as they were administered in the royal courts, and the “rules” of law were simply recognized ways of summoning, drafting, and pleading in order to get an estate conveyed, a title restored, or a debt repaid. “The Common Law was not so much a system attempting to bring justice as it was a conglomeration of procedures designed, in more and more cases, to achieve solutions to disputes.” [5] “Justice” described process, not outcome.

We tend to think that for every wrong there is (or ought to be) a remedy in the law and that obtaining a remedy is mostly a matter of convincing a court that you have suffered a wrong. For a medieval plaintiff, this way of thinking would be a disastrous mistake. For him there was no wrong unless there was a writ on the register to remedy it. If you couldn’t fit the facts of your case more or less exactly into one of the existing forms of action, you had no case, no matter how unjustly you had been treated. At best, you might find a very clever lawyer who could come up with a way to use a fiction to make some existing writ do what you wanted. The emphasis on procedure and formality encouraged litigants to be creative in using fictions and other devices to make the law serve their ends. This will become evident when we turn to fines and common recoveries.

There was also considerable overlap between existing forms of action, but with just enough subtle procedural difference between them to create pitfalls for the unwary litigant who chose the wrong one. A large part of a medieval lawyer’s expertise was exercised in advising a client which action to initiate. Choose the wrong one and you could waste many years and much money pursuing a dead cause, while a different writ might have achieved a better outcome.

The Legal Profession

Who were these lawyers? [6] As long as there were royal courts administering justice, there must have been men who had more knowledge than others of how those courts worked and what kinds of redress one could seek there, and such men might offer their services to litigants for a fee. Once the courts settled at Westminster, these men learned in the law would naturally wish to settle and do business somewhere near the court. They settled in inns. Besides serving as residences and offices, the inns also served as colleges, in which law students were trained. Today there are four inns of court: Gray’s Inn, Lincoln’s Inn, the Middle Temple, and the Inner Temple. In Richard’s time there was also Serjeants’ Inn (1416-1877). Originally, these were common law inns. There would also have been the inns of Chancery: Clifford’s Inn, Thavie’s Inn, Clement’s Inn, Lyon’s Inn, Furnival’s Inn, Strand Inn, New Inn, and Barnard’s Inn. [7] These were smaller establishments and fell into decay by the 19th century. Finally, there was also Doctors’ Commons, an inn of court for practitioners of the civil law used in the ecclesiastical and admiralty courts. [8]

Senior members of an inn in good standing were called “benchers”. A student of the law was known as an “apprentice”. He would spend his time in the inn reading whatever literature was available, usually in the form of plea rolls or the reports of cases circulating in manuscript taken down by lawyers and students. He would listen to “readings” by benchers. He would also attend the courts, and observe proceedings. If he intended to make his career in law, he would do this for many years — sixteen at least — until, assuming he was diligent and clever enough, he was lucky enough to be admitted as a serjeant-at-law. The admission of a serjeant was accompanied by much ceremony, feasting, and giving of gold rings, an interesting description of which was given by Sir John Fortescue, Chief Justice under Henry VI. [9]

The serjeants were the elite of the legal profession. They were the only lawyers allowed to plead before the court of Common Pleas and they were the only ones allowed to approach the bar before the judges; hence, becoming a serjeant-at-law meant being “called to the bar”. If you walked into the court of Common Pleas in Richard’s time, you likely would have seen a group of serjeants at the bar arguing over a case; they didn’t necessarily have to be representing a client in order to do so.

The serjeants also wore a distinctive white silk coif or skull cap, which led to their being referred to collectively as “the order of the coif”, while becoming a serjeant was referred to as “taking silk”. According to Fortescue, serjeants were not required to remove the coif even in the presence of the King, thus symbolizing that the serjeants obeyed a higher law.

The serjeants were the class from which the judges were drawn. Their exclusiveness is indicated by the fact that over the course of the entire 16th century, only 89 serjeants were created. In the beginning they would congregate and seek clients in front of St. Paul’s Cathedral. However, their small number led over time to their becoming extremely busy, and an early 17th-century serjeant was embarrassed to admit that there once was a time when his class had to solicit business like common tradesmen. [10] In Richard’s time, as now, barristers did business from their chambers when not in court.

Because the serjeants were so busy, another kind of lawyer arose, what today we would call the solicitor. He did not plead before a court. Instead, he did the necessary work to usher a suit through court. He advised clients, drafted and filed the necessary paperwork, and paid fees to court officials. He was also responsible for preparing his client’s brief, that is, the summary of all the pertinent facts and issues of a case, and for finding a serjeant to plead it in court.

The serjeants pled cases in Common Pleas, which originally was the busiest and most profitable court. This allowed for other lawyers to find work in the other courts as barristers. Since over time many types of cases were transferred to other courts (especially King’s Bench and Exchequer), the power of the serjeants’ order began to decline. This process had already begun in Richard’s time. As the elite of the legal profession, the serjeant was replaced by the figure of the King’s Counsellor.

In the Middle Ages, “maintenance” — the intermeddling of an outside third party to encourage a lawsuit — was illegal. This made it difficult for a lawyer to ply his trade and especially to do so for money. To get around this difficulty, lawyers accepted their fees in the form of a retainer, to hire his services for a period of time. This fiction effectively treated the lawyer as a paid servant of his client; as such he could be considered part of the client’s household and therefore no longer an outside third party. [11] His services on behalf of his client were no longer technically maintenance. And since the lawyer couldn’t sue a client for non-payment without again running afoul of the laws against maintenance, the retainer was always paid up front. Another advantage to the practice of paying a retainer was that, with a limited number of skilled serjeants, a client could obtain the services of a particular serjeant before his opponent did. The accepted retainer for a lawyer in Richard’s time was half an angel (about 3 s. 4 d.) or multiples thereof, which gave rise to the saying that a serjeant-at-law was like Balaam’s ass, which did not speak until it had seen an angel. [12] Then as now, the lawyer was not a popular figure.

We will now proceed to look at two institutions that were a growing and changing part of the law in Richard III’s time: uses and entails.

III. Uses and Entails


A “use” roughly corresponded to what today we would call a trust. A grantor conveyed lands to a grantee to be held “to the use of” a beneficiary, called the cestui que use (“he for whom” the use is made). [13] There were in medieval times many reasons someone might want to do this. For example, a married man wanting to make sure his wife was provided for after his death might wish to transfer some of his land to himself and his wife; however, since the law didn’t allow transfers to oneself, the practice became to transfer it to a third party, usually a friend (what we would call a trustee), on the understanding that he was to reconvey it to him and his wife. Or, rather than have the estate re-conveyed to him, he might leave it in the trustee’s hands, on the understanding that he and his wife were to continue to receive the benefits of it. This was essentially a separation of enjoyment from title.

There was an obvious problem with this scheme: What happened if you had a falling-out with the trustee? Or what happened if there was some radical misunderstanding regarding expectations? You technically had no recourse, because the trustee was now the owner of the property, at least as far as the law was concerned. It was all a matter of trust, and sometimes trust breaks down. However, because they were a matter of trust, and of hence of conscience, the job of enforcing uses fell into the hands of Chancery. This is because, as we saw, Chancery was conceived as a sort of court of conscience, responsible for dispensing substantive justice, and presided over — in the form of the Lord Chancellor — by a man of the cloth. Eventually Chancery would treat as an implied use any conveyance made without consideration, i.e. without either an exchange of money or an existing familial relationship between the parties. This Chancery jurisdiction was established by the 1420s, and by the time Richard III came to the throne a large portion of its business dealt with uses.

The attitude of the law towards uses was always ambivalent. On the one hand, they served many needs. On the other hand, they produced many pernicious effects. For instance, such trusts could be used to put lands out of reach of creditors: you couldn’t give up to creditors lands that weren’t yours, but you could still enjoy all the benefits of ownership. [14] Also, since under feudalism real property was not devisable by will, uses enabled owners to pass it on to whomever they wished, simply by passing title to a trustee during life. This had the consequence of cheating the feudal lord of his relief. Indeed, by Richard’s time, uses were seen as a way of cheating lords of their feudal dues and of getting around the laws against mortmain.

As a consequence of the Wars of the Roses, uses became popular because they protected lands from possible forfeiture in the uncertainty of the times. The risk of being executed for coming out on the wrong side of the struggles made landholders wish to secure their property for widows and children. From the Crown’s point of view, this too was a problem.

Another problem of uses in Richard’s time had to do with the muddying of title caused by having so many lands in the hands of trustees who had little to do with them. It was often unclear who had title, since uses could be transferred without livery of seisin. [15] Purchasers were in danger of being passed bad titles (or titles with hidden conditions) from mere beneficiaries rather than the trustees. Legislation of Richard III’s sought to solve this problem by allowing a beneficiary to pass good title even against his own trustees. [16] This “remarkable measure”, as one eminent legal historian referred to it, had the effect of removing cases from Chancery to the common law courts, since the beneficiary now had a true property interest in the land, called a ius usus or “title to use”. [17] Legislation of Henry VII and Henry VIII transferred existing titles from trustees to beneficiaries and prohibited the creation of further uses.


It is almost proverbial that among the English gentry, fathers do not trust their sons. In order to keep lands together in the family and protect them from irresponsible sons, the practice of entailing estates was developed. Here, instead of saying “to Richard and his heirs”, the grant of lands would say something like “to Richard for life, remainder to the heirs of his body”. What’s the difference? Well, technically speaking, the word “heir” would simply refer to whomever the estate was to pass to after Richard’s death. In the normal case this would be his eldest son, but the specific identity would only determine upon Richard’s death. Until then, there was no heir with a vested interest in the estate. But if the grant specifies, say, “heirs of his body”, then so long as Richard has living children, the word “heir” is determinable; his successor has a vested interest in the estate — called a “remainder” — which prevents Richard from alienating it to others. If Richard tries to alienate the land, or if he commits waste, the “remainderman” or tenant in remainder has an action in law against him. In the meantime, Richard, the tenant in fee tail, has no more than a life estate. Keeping lands together in this way could be very important in an age where land was the primary source of power and family prestige. However, there was tension: an entail locked up land that a tenant in fee tail might want to use to borrow money against. Also, a tenant in fee tail still had the power to charge the estate with an annuity to, say, support a widow, thus burdening the estate for his successors in remainder. By the 17th century, such charges on entailed estates became a problem, leaving many gentry rich in land but financially debt-ridden. Entails, as a matter of policy, tended to be unpopular among the merchant and banking class, because it kept too much land locked up and out of economic circulation. We will now look at two ways in which entails could be broken. [18]

IV. Fines and Common Recoveries

Much of the time, entails satisfied both their creators and their heirs, since normally the entail was set up in such a way as to follow the regular line of intestate succession, while at the same time making sure that it couldn’t be fragmented or alienated by an improvident heir. However, entailed estates could also become a way for the dead to tyrannize over the living. There were obvious ways in which an entail could be inconvenient for a tenant in tail. There was no way that the creator of an entail could foresee every situation that might arise in future generations: As with Downton Abbey, one’s lands might through the vagaries of procreation and succession, end up in the hands of strangers; one might need to mortgage one’s land as security to raise capital, or sell it to pay debts. Entails tied the hands of owners, as they were intended to do. Was there any way to recover an estate from entail?

There were two main ways to bar an entail: the fine and the common recovery. These were both collusive actions that used a fictitious title to exploit existing legal procedures to convey land. Fines and recoveries were rapidly developing areas of the law in the late 15th century, so they’re worth looking at in more detail.

We will begin with the fine, since it was the older of the two methods, going back to the 12th century, and since it is also a bit easier to wrap one’s head around than the common recovery. [19] In essence it was quite simple. If land was adjudged to me by due process in a court of record, it was duly noted in the court roll. If the judgment took the form of a settlement or compromise between two parties in a suit, the details of the agreement were also duly noted in the roll. This record in the court roll was deemed to be, with very few exceptions, irrevocable and unquestionable, and could thus function as the equivalent of a deed. If that judgment said that an estate was fee simple rather than fee tail, the entail was effectively barred.

Let’s say Alfred is tenant in tail of Blackacre. He would begin a fictional lawsuit against Baldric, a colluder in the action. [20] They would then settle, with Alfred ceding title to Baldric, with the settlement noted in the roll and a chirograph provided by the court to Alfred and Baldric, which would serve the latter for a deed. Since for all intents and purposes Baldric was now tenant in fee simple, he would convey the land back to Alfred in fee simple, following the normal process of conveyance. Alfred now held in fee simple and the entail was barred. The process was called a “fine” because of the standard opening words of the chirograph: Haec est finalis concordia (“This is the final agreement”).

It’s easy to see how the fine might be abused. What’s to stop two colluders with no legal claim whatsoever to the estate from obtaining title by fine to someone else’s lands? They could use this fictional process to take ownership of any tenant’s land, so long as they could keep their process a secret from him. A partial remedy was provided by legislation stipulating that the colluders must at least have some connection to the lands they were recovering; they could not be complete strangers to the property. [21]

Another remedy was provided, one which is of special interest to Ricardians. In 1531 was printed Christopher St. Germain’s dialogue work, Doctor and Student, a book that remained a core legal textbook well into the 19th century. In it we find the following passage:

STUDENT: Yf a fine with proclamacyon be leuyed accordynge to the statute and no clayme made within v. yeres &c. whether is the right of a straunger extyncted therby in conscience, as it is in the law. DOCTOR: Upon what consyderacyon was that statute made. STUDENT: that the right of lands and tenements, myght be the more certaynly knowen and not to be so uncertayne as they were byfore that statute. [22]

In plainer English, according to a statute, the person wronged by a fraudulent fine now had five years within which to challenge the fine before it became irrevocable, instead of the year and a day previously allowed. Now, what is this statute to which the doctor and the student are referring? St. Germain himself didn’t say. One of his 18th-century editors, William Muchall, claimed that it was a statute of Henry VII. [23] This is not entirely true. The great 20th-century legal scholar, Theodore Plucknett, pointed out that the statute was actually Richard III’s, but was re-enacted by Henry VII. As Plucknett noted, “the Tudors usually got credit for Richard III’s reforms”. [24] St. Germain’s neglecting to cite the specific statute is strange, for he certainly has no hesitation about naming other statutes. I would like to think it an indication that he knew this statute was really Richard’s rather than Henry’s, but that writing in 1531, it was unsafe to credit the former for it. Rather than mislead, St. Germain chose instead to pass over it in silence.

The common recovery was a newer process, coming into its own during the reign of Edward IV. It was more complicated and required more parties to the transaction. [25] In the simplest version of this scheme, there are four parties:

            A: the tenant in tail, called the vouchee.
            B: tenant in praecipe (usually A’s lawyer).
            C: the demandant, another colluder, usually the
                 heir of A.
            D: the common vouchee, a straw man, usually a
                 poor court clerk.

First, A conveys Blackacre to B (which of course he has no right to do with an entailed estate). C then comes along and sues B for title. In his defense, B claims he acquired Blackacre from A. A, now called the vouchee, is called upon to vouch for his title. A then claims he acquired his title from D. D is called to vouch in his turn but fails to appear in court, or else he dashes out of court. This amounts to a contempt of court, and judgment is therefore given that C should recover Blackacre, and D should compensate B with land of equal value. All of this is duly entered on the court roll. Of course, D has no land; he is a straw man, usually a minor officer of the court. The end result is that the judgment against D is not executed, while A has in a roundabout way conveyed Blackacre to C. C can then convey back to A, who becomes tenant in fee simple. The entail is barred. [26]

In the fine, the court was a passive agent of fraud. In the common recovery, it took an active role, which must have required the Crown’s tacit approval of the practice. Why? It is interesting that though there are beginnings of the practice in the early 15th century, the common recovery really assumes its classical form in the reign of Edward IV. [27] Here is Blackstone’s explanation for this:

About two hundred years intervened between the making of the statute de donis [establishing the practice of entailed estates], and the application of common recoveries to this intent, in the twelfth year of Edward IV: which were then openly declared by the judges to be a sufficient bar of an estate-tail. For though the courts had, so long before as the reign of Edward III, very frequently hinted their opinion that a bar might be effected on these principles, yet it never was carried into execution; till Edward IV observing (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum’s case to be brought before the court… [28]

Taltarum’s Case was decided in 1472. Much like the practice of uses, entails were protecting estates from forfeiture in the political uncertainty of the times. According to Blackstone’s account, Edward IV encouraged the common recovery in order to discourage entails that were protecting the lands of families disloyal to the Crown.


Richard III’s reign came during a transitional period of rapid legal change. I will conclude by summarizing some of these changes.

Many of them were consequences of the disruption of the Wars of the Roses: the Crown was giving its sanction to common recoveries to bar entails in order to seize estates of those disloyal to the King. Landholders resorted to uses in order to protect their estates from forfeiture, while at the same time, discontent with the resulting confusion of titles and the evasion of feudal dues led to Richard’s first piece of legislation, which clamped down on the practice. The disorders of the Wars of the Roses saw the tort actions of trespass and ejectment become more prominent features of the law, sweeping aside older forms of action to recover property such as the original writs of right and praecipe and the possessory writs of novel disseisin and mort d’ancestor. [29] In particular, trespass on the case proved flexible and adaptable enough to give rise to the branch of law we now call contract law.

The first half of the 15th century saw a tremendous expansion of Chancery business at the expense of the King’s Bench and Common Pleas. However, by Richard’s reign, the tide had begun to turn, and his legislation regulating uses accelerated this process.

Despite all this change, and despite the upheavals of civil war, a later age would view the 15th century as a time of legal stability in comparison with the Tudor period, at least when it came to litigiousness. Chief Justice Coke felt compelled to remark on the common view that the Tudor courts were busier with disputants than the preceding age had been. Coke doesn’t deny this, instead assigning six causes for it. [30] Among them is the rather paradoxical one that

In the reigns of Edw. 3. Ric. 2. Hen. 4. Hen. 5. And part of the reign of Hen. 6. in respect of the wars in France, &c. and in the residue of the reign of Hen. 6. and in the reign of Edw. 4. in respect of the bloody and intestine wars, and in almost continuall alarums within the bowels of this kingdome, between the houses of Lancaster and York, there could not be so many suits in law, as since this kingdome hath enjoyed peace…. Peace is the mother of plenty… and Plenty the Nurse of suits. [31]

Civil war brought with it the blessing of legal peace — rather a sad commentary on the supposed role of law as a force for order.


[1] St. Germain, Doctor and Student (1531), ch. 18, folio 42: “Yf the defendaunte wage his lawe in an accyon of dette broughte upon a trewe dette the pleyntyfe hath no meanes to come to his dette by way of compulsyon neyther by sub pena nor other wyse, and yet the defendaunt is bounde in conscyence to pay hym.” See also Blackstone, Commentaries, III. 151,154, 345; Hobbes, Dialogue, p. 87.

[2] Blackstone, Commentaries, III.122. Actions “on the case” roughly correspond to what in Roman law were known as actions in factum (“on the facts”). Both are “analogous” actions, in that they are allowed by their analogy with known and accepted actions.

[3] Baker and Milsom, pp. 407-411; Baker, “New Light on Slade’s Case,” p. 57. It is worth mentioning that in the fourth year of Edward IV it was decided that one could bring an action of trespass on the case instead of novel disseisin, which by that time had become a slow and inefficient process: Baker, “New Light,” ibid.

[4] On the development of assumpsit, see also Blackstone, Commentaries, III.347.

[5] David and Brierley, Major Legal Systems in the World Today, p. 295.

[6] For an interesting Ricardian-period account of the legal profession, see Fortescue, On the Laws and Governance of England. For a modern account, see Baker, “Counsellors and Barristers: An Historical Study”.

[7] There was also Staple Inn, but it wasn’t established until Tudor times.

[8] In the ecclesiastical courts an advocate was the equivalent of a common law serjeant or barrister, while a proctor was equivalent to a common law solicitor.

[9] Fortescue, In Praise of the Laws of England, ch. 50.

[10] Baker, “Counsellors and Barristers,” p. 208.

[11] Note the similarity between this practice and the hiring of retainers (the retinue) more generally under bastard feudalism.

[12] Baker, “Counsellors and Barristers,” p. 211. For the story of Balaam’s ass, see Numbers 22:27-30.

[13] For a good overview of uses, see Baker, Introduction, pp. 248-258. See also Maitland, Equity.

[14] This problem was address by legislation, beginning in the 1370s, and especially by 15 Ric. II c. 5.

[15] Livery of seisin was an archaic conveyancing ceremony whereby transfer of property was made from seller to purchaser by way of a public handing over of something associated with the property, such as a clod of earth, or else by formally leading the purchaser onto the lands.

[16] 1 Ric. III c. 1.

[17] Baker, Introduction, p. 251.

[18] On fee tail, see Coke on Littleton, 2.13ff.

[19] For more detail on fines, see Blackstone, II.350ff. Recovery by fine was abolished in 1833.

[20] In practice, Baldric would usually be Alfred’s heir.

[21] Blackstone, II.356; Coke on Littleton, 373a.

[22] St. Germain, Dyalogues in Englysshe betwyxt a Doctoure of Dyuynyte and a Student in the Lawes of Englande (1531), First Dialogue, ch. 25, folio 55.

[23] Muchall (ed.), Doctor and Student (1787), p. 68n: “That is the statute 4 H. 7 c. 24. by which the common law which gave only a year and a day to strangers, to make their claim is altered.”

[24] 1 Ric. III c. 7; Plucknett, A Concise History of the Common Law (1929), p. 391; Blackstone, II.352: “By 1 Ric. III. c. 7. confirmed and enforced by 4 Hen. VII. c. …”; Simpson, An Introduction to the History of the Land Law, p. 117; Baker, An Introduction to English Legal History, p. 282.

[25] For common recoveries, see Blackstone, II.357ff; Spinosa, “The Legal Reasoning behind the Common, Collusive Recovery: Taltarum’s Case (1472),” especially pp. 75-76; Simpson, An Introduction, pp. 117-124.

[26] The procedure could get more complicated. For instance, sometimes it was necessary to bar not only the heir in tail, but someone else, perhaps his trustee. In that case, another common vouchee, E, in addition to D would be necessary: A would allege he acquired Blackacre from E, and E would claim he got it from D. One might need three or four vouchees.

[27] The main precedent being Taltarum’s Case (1472), for which, see Baker and Milson, p. 68.

[28] Blackstone, II.117.

[29] “But the Times of Hen. 6. as also of Edw. 4. Edw. 5. and Hen. 7. were Times that abounded with Learning and excellent Men…. In the Times of those Three Kings Hen. 6. Edw. 4. and Hen. 7. the Learning seems to be much alike. But these Two Things are observable in them, and indeed generally in all Reports after the Time of Edw. 3 viz. First, That Real Actions and Assizes were not so frequent as formerly, but many Titles of Land were determined in Personal Actions…” Hale, The History of the Common Law of England, p. 110.

[30] “Now that we may here say somewhat to a vulgar objection of the multiplication of suits, in law both in this Court, and other of his Majesties Courts at Westm’ more then hath been in the reigns of Edw. 3. Ric. 2. Hen. 4. Hen. 5. Hen. 6. Edw. 4. and R.3. It is to be observed, that there be six causes of the increase of them, whereof two be generall, the other four particular. The generall be Peace, and Plenty: The particular, 1. The dissolution of so many Monasteries, Chanteries, &c. and the dispersing of them into so many severall hands. 2. The swarm of Informers. 3. The number of Concealors. 4. The multitude of Atturnies.” Coke, Institutes, Fourth Part, ch. 7 (in Selected Writings, Vol. 2, p. 1181).

[31] Ibid. pp. 1181-1182.


BAKER, J. H. “Counsellors and Barristers: An Historical Study,” Cambridge Law Journal (1969), 205-229.

—— “New Light on Slade’s Case,” Cambridge Law Journal 29 (1971), 51-67.

—— “The Abolition of Original Writs,” Cambridge Law Journal 39 (1980), 284-86.

—— An Introduction to English Legal History (4th edition). London: Butterworths, 2002.

BAKER, J. H. and MILSOM, S. F. C. (eds.). Sources of English Legal History: Private Law to 1750. Oxford: Oxford University Press, 2010.

BLACKSTONE, Sir William. Commentaries on the Laws of England (4 volumes). Oxford: Clarendon Press, 1765-69 (facsimile, Chicago: University of Chicago Press, 1979).

CAENEGEM, R. C. van. The Birth of the English Common Law (2nd edition). Cambridge: Cambridge University Press, 1988.

COKE, Sir Edward. The First Part of the Institutes of the Laws of England; or, a Commentary upon Littleton (2 volumes). Charles Butler (ed.). London: J. and W. T. Clarke, 1823. Herein referred to as Coke on Littleton. Includes the text of Littleton’s Tenures.

—— The Selected Writings and Speeches of Sir Edward Coke (3 volumes). Steve Sheppard (ed.). Indianapolis: Liberty Fund, 2003.

DAVID, René and John E. C. BRIERLEY. Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law (2nd edition). New York: Simon and Schuster, 1978.

FITZHERBERT, Anthony. The New Natura Brevium (2 volumes, 9th edition). London: J. Butterworth, 1794.

FORTESCUE, Sir John. On the Laws and Governance of England. Shelley Lockwood (ed.). Cambridge: Cambridge University Press, 1997. Contains two tracts:
̶            - In Praise of the Laws of England.
̶            - The Governance of England.

HALE, Sir Matthew. The History of the Common Law of England. Chicago: University of Chicago Press, 1971.

HOBBES, Thomas. A Dialogue between a Philosopher and a Student of the Common Laws of England. Joseph Cropsey (ed.). Chicago: University of Chicago Press, 1971.

HOWARD, A. E. Dick (ed.). Magna Carta: Text and Commentary. Charlottesville, VA: University of Virginia Press, 1998.

JUSTINIAN. The Digest of Justinian (4 volumes). Alan Watson (trans.). Philadelphia: University of Pennsylvania Press, 1998.

LAWSON, F. H. and Bernard RUDDEN. The Law of Property (2nd edition). Oxford: Clarendon Press, 1982.

LITTLETON, Sir Thomas. Tenures. See Coke, above.

MAITLAND, F. W. The Forms of Action at Common Law: A Course of Lectures. A. H. Chaytor and W. J. Whittaker (eds.).Cambridge: Cambridge University Press, 1969.

—— Equity: A Course of Lectures. Cambridge: Cambridge University Press, 1947.

MEGARRY, Sir Robert. A New Miscellany-at-Law: Yet Another Diversion for Lawyers and Others. Oxford: Hart Publishing, 2005.

PLUCKNETT, Theodore F. T. A Concise History of the Common Law. Rochester, NY: Lawyers Co-operative Publishing Company, 1929.

POLLOCK, Sir Frederick and Frederic William MAITLAND. The History of English Law before the Time of Edward I (2 volumes). Indianapolis: Liberty Fund, 2010.

ST. GERMAIN, Christopher. Doctor and Student. London, 1531 (facsimile, Menston, UK: Scolar Press, 1970).

—— Doctor and Student; or, Dialogues between a Doctor of Divinity and a Student in the Laws of England (17th edition). William Muchall (ed.). London: T. Whieldon, 1787 (facsimile, Birmingham, AL: Legal Classics Library, 1988).

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

SPINOSA, Charles D. “The Legal Reasoning behind the Common, Collusive Recovery: Taltarum’s Case (1472),” American Journal of Legal History 36.1 (1992), 70-102.