Of Libertines

September 9, 1754

My Dear Mr. Avenger,

I thank you very much for the lyrical Works you pass’d along to me, by that inimitable poetical Duo of Mr. GUNNS and Mr. ROSES. I admit I do not much care for their Work, and yet, there was one of their Songs in particular that caus’d me to give over some little Time to Reflection. You know the one to which I refer, for it is that inimitable Ode “to Mr. BROWNSTONE,” which runs,

          I get up around seven,
          I Get out of Bed around nine,
          And I don't worry about nothing, no,
          ‘Cause worrying’s a waste of my time.

          The Show usually starts around seven,
          We go on Stage around nine,
          Get on the Bus about eleven
          Sipping a Drink and feeling fine.

The Verses delineate in very evocative Fashion the Regimen (if it may be so-called) of one given over to a Life of Debauchery, who makes it his Habit to turn Day into Night, and Night into Day. It puts me in Mind of a very obscene Performance by my Lord ROCHESTER. I blush to reproduce it, but since we are become free with each other, you will of course forgive me:

          I Rise at Eleven, I Dine about Two,
          I get drunk before Seven, and the next thing I do;
          I send for my Whore, when for fear of a Clap,
          I Spend in her hand, and I spew in her Lap;
          There we quarrel, and scold, till I fall asleep,
          When the Bitch, growing bold, to my Pocket does creep;
          Then slyly she leaves me, and to revenge th’affront,
          At once she bereaves me of Money and C—nt.
          If by chance then I wake, hot-headed and drunk
          What a coyle do I make for the loss of my Punk?
          I storm, and I roar, and I fall in a rage,
          And missing my Whore, I bugger my Page:
          Then crop-sick, all Morning, I rail at my Men,
          And in Bed I lye Yawning till Eleven again.

[Poems on Several Occasions By the Right Honourable, The E of R (1680) pp. 59-60 — Ed.]

This sort of Life, or rather waking Death, I observ’d in my Youth amongst some Sparks or young Bucks I knew at the Inns of Court, Gentlemen of an independent Fortune, who, needing not to follow the Law as a Profession, nor indeed to earn any kind of Living, it having been earned already for them by their more virtuous Progenitors, gave themselves over to an Education of their own devising, which consisted, so far as I cou’d tell, of Dicing, Wenching, Drinking, and Roaring — with a liberal helping of Free-thinking scraped together from the Dregs of the Coffee-Houses and the worst Sort of Books.

Some few of these my Acquaintances eventually escapt without coming to a bad End, either through the good Offices of a wise Father who refus’d to further Finance such Studies, or through the natural cooling of the Spirits that is often the natural Concomitant of Age and Responsibility.

The remainder of these Fellows of whom I speak, at one Time or other, died Martyrs to Vice. Such Men, while trudging along the Stations of their Cross, make of themselves Markers or Way-signs for the rest of us. This is almost the only Utility these dubious Heroes had to offer their Country in the Sacrifice of their miserable Lives.

The Libertine does not dwell in his House, but rather haunts it. Like an evil Spirit, he walks all Night to disturb his Family, but is never seen by Day. Thro’ his frequent resort to the Company of unwholesome Women, he finds himself struck by the outward Signs of his Sin, and what he loses by Venus, he wou'd recover by Mercury, a Medicine oft worse than that which it is meant to cure. [Mercury was the standard medical treatment for venereal disease — Ed.]

As the Years pass by him insensibly and mark'd by naught but his increasing Excesses, the Libertine’s Pleasures become Things rather to be endured than enjoy’d; yet endure them he does, tho' with less Grace and Fortitude than others endure their Pains. In short, he is like that Natta, whom PERSIUS describ’d thus:

          non pudet ad morem discincti vivere Nattae?
          sed stupet hie vitio et fibris increvit opimum
          pingue, caret culpa, nescit quid perdat, et alto
          demersus summa rursus non bullit in unda.

[“Are you not ashamed to live after the fashion of the abandoned Natta? A man deadened by vice, whose heart is overlaid with callouses, who has no sense of sin, no knowledge of what he is losing, and is sunk so deep that he sends up no bubble to the surface?” Persius, Satires, III.30-34 — Ed.]

          See him in Sin’s Abyss insensate drop;
          He sinks, and sends no Bubble to the Top.

I am, as always,
     Your obed’nt & most humble serv’t,
          Jos. Darlington, Esq.
               Darlington Close,
               Horton-cum-Studley, Oxf.

A Tale of a Tub

The ingenious Martin Powell

The Greenland vessels, and indeed the South Sea vessels, are sometimes (especially after stormy weather) so surrounded with whales, that the situation of the crew becomes dangerous. When this is the case, it is usual to throw out a tub in order to divert their attention; when the marine monsters amuse themselves in tossing this singular sort of a plaything into the air, to and fro, as children do a shuttlecock. Their attention being drawn, every sail is hoisted, and the vessel pursues its course to its destination. Hence came the saying, “Throwing a Tub to the Whale!”

          — William Pulleyn, Etymological Companion (1853)

 
Puppets and Prophets

In 1706 a sect of expatriate French Protestant holy rollers arrived in London. Called “Camisards”, they were more familiarly known as the “French Prophets”. Their preaching, prophesying, and speaking in tongues to assembled crowds caused quite a stir, and they were viewed by the government as a threat to public order, or at least as a public nuisance.

In 1708, Lord Shaftesbury published his anonymous pamphlet, A Letter concerning Enthusiasm, though it was actually written in late 1707. The pamphlet used the Prophets as a jumping off point for a lengthy discussion of religious toleration, free expression, and the importance of using gentle ridicule to deflate religious fanaticism. In the Letter, Shaftesbury writes:

“I am told, for certain, that they [the Camisards] are at this very time the Subject of a choice Droll or Puppet-Show at Bart’lemy-Fair. There, doubtless, their strange Voices and involuntary Agitations are admirably well acted, by the Motion of Wires, and Inspiration of Pipes. For the Bodys of the Prophets, in their State of Prophecy, being not in their own power, but (as they say themselves) mere passive Organs, actuated by an exterior Force, have nothing natural, or resembling real Life, in any of their Sounds or Motions: so that how aukardly soever a Puppet-Show may imitate other Actions, it must needs represent this Passion to the Life. And whilst Bart’lemy-Fair is in possession of this Privilege, I dare stand Security to our National Church, that no Sect of Enthusiasts, no new Venders of Prophecy or Miracles, shall ever get the start, or put her to the trouble of trying her Strength with ’em, in any Case.”
 
Puppet shows were a standard attraction at Bartholomew Fair, held in Smithfield. Samuel Butler mentions them in Hudibras (1662), I.i.559-574:
    
     Not that of Past-board which men shew
     For Groats at Fair of Bartholmew;
     But its great Grandsire, first o’th’ name,
     Whence that and Reformation came:
     Both Cousin-germans, and right able
     T’inveigle and draw in the Rabble.
     But Reformation was, some say,
     O’th’ younger house to Puppet-play.

Indeed, a response to Shaftesbury’s Letter, written by Mary Astell (more on her later), was entitled Bart’lemy Fair: or an Enquiry after Wit (1709). Much later, Anthony Collins, a freethinker and acquaintance of Shaftesbury’s, alluded to the whole incident of the Prophets and the puppet shows in his A Discourse concerning Ridicule and Irony in Writing (1729) when he wrote: “I don’t know whether you would be willing even to restrain Barthlomew Fair, where the Sect of the New Prophets was the Subject of a Droll or Puppet-Show” (p. 29). 

Puritans and Pipes

In the passage from Shaftesbury quoted above, the puppets have “strange Voices” animated by pipes. It is tempting, by connecting this to Shaftesbury’s subsequent mention of “passive organs”, to assume he is making some kind of lame pun on the musical instrument. I do not believe this is the case. Rather, I think he had in mind bagpipes rather than a pipe organ. One commonly finds in the 17th and 18th centuries references to a peculiar nasal intonation — supposedly a kind of droning sound — made by Puritan preachers (often disparagingly referred to as “fanatics” or “Saints”). This tone was often compared to bagpipes.

For example, in Hudibras (1662), I.i.509-511, Samuel Butler describes it thus: “This Light inspires, and playes upon / The nose of Saint, like Bag-pipe-drone, / And speaks through hollow empty soul”. In John Dryden’s The Medall: A Satyre against Sedition (1682), lines 32-35, we find Shaftesbury’s grandfather, the first Earl, being attacked for his former cooperation with Cromwell’s Puritan regime in these words:

     Bart’ring his venal wit for sums of gold
     He cast himself into the Saint-like mould;
     Groan’d, sigh’d and pray’d, while Godliness was gain;
     The lowdest Bagpipe of the squeaking Train.

Similarly, in Jonathan Swift’s A Discourse concerning the Mechanical Operation of the Spirit (1704), Section II, appended to A Tale of Tub (1710 ed.), Jonathan Swift writes: “By this Method, the Twang of the Nose, becomes perfectly to resemble the Snuffle of a Bag-pipe, and is found to be equally attractive of British Ears; whereof the Saint had sudden Experience, by practicing this new Faculty with wonderful Success in the Operation of the Spirit” (p. 333).

Historian David Hackett Fischer, in his Albion’s Seed: Four British Folkways in America (1989), referred to this sound as being a characteristic speech pattern of the New England settlers. He, like Swift, also refers to it as a nasal “twang”. Fischer’s explanation is that the New England settlers were, as we know, Puritans, and that a disproportionate number of them came from the Puritan hotbed of East Anglia, where this linguistic quirk was indigenous. I don’t know if it still is; I have spent time in places like Suffolk and haven’t really noticed it. Whether or not it still exists, it was doubtless a real thing in the early 18th century, judging by the frequency with which it was remarked upon. To be honest, I can’t quite get an image of this peculiar sound in my imagination, a sound that was at once a “twang”, a “drone”, a “snuffling”, and a “squeaking”.

Enough about bagpipes. Let’s return for a moment to Swift.

Shaftesbury and Swift (or Shaftesbury as Swift)

As mentioned, Swift wrote A Discourse concerning the Mechanical Operation of the Spirit. In it, and in his Tale of a Tub more generally, he writes of the French Prophets, and of such other fanatics as were under the influence of what was then typically called religious “enthusiasm”. Their gestures, motions, and voices while thus influenced were odd, as if they were not entirely in control of themselves. Hence, the comparisons to puppets, to machines, or to musical instruments being played upon by extraneous forces. These same comparisons are to be found in Shaftesbury’s Letter concerning Enthusiasm, and expressed in a quite similar style.

These similarities were not lost on Swift. In the “Apology” prefacing the 1710 edition of A Tale of a Tub, he writes: “Yet several have gone a farther Step, and pronounced another Book to have been the Work of the same Hand with this; which the Author directly affirms to be a thorough mistake; he having yet never so much as read that Discourse, a plain Instance how little Truth, there often is in general Surmises, or in Conjectures drawn from a Similitude of Style, or way of thinking.” In the margin, Swift identifies this other book as the “Letter of Enthusiasm”— Shaftesbury’s book.

Swift’s claim not to have read Shaftesbury’s Letter should not be taken at face value. In a letter to Ambrose Philips of 14 September 1708, Swift writes: “Here has been an Essay of Enthusiasm, lately publisht that has run mightily, and is very well writt, All my Friends will have me to be the Author, sed ego non credulous illis. By the free Whiggish thinking I should rather take it to be yours: But mine it is not.”

Both Swift’s Tale and Shaftesbury’s Letter were dedicated to the Whig grandee John, Lord Somers, a circumstance that might have contributed to a confounding of the two writers in the minds of readers.

Their identification in some minds is perhaps exemplified by the case of Mary Astell. In 1704 Swift wrote The Battle of the Books, a satire on the then-raging controversy between those who defended the ancient writers as superior to the moderns, and those who sided with the moderns over the ancients. In it, scholar William Wotton was satirized — along with others — for his pedantry, Wotton having defended the moderns against Swift’s old patron, Sir William Temple, champion of the ancients. In 1709 there appeared a response to Shaftesbury’s Letter concerning Enthusiasm, entitled Bart’lemy Fair: or an Enquiry after Wit. This work bears Wotton’s name on the title page, but it was actually written by Astell. Hiding behind Wotton’s name was an indication that Astell thought the Letter concerning Enthusiasm was by Swift. She also takes an opportunity on page 97 of Bart’lemy Fair to attack A Tale of a Tub, which would seem out of place if she thought the author of the Letter were anyone other than Swift. Finally, there is the matter of Bart’lemy Fair’s subtitle, which in the original 1709 edition is “in which due Respect is had to a Letter concerning Enthusiasm to My Lord ***. By Mr. Wotton.” A second edition of the work was published in 1722, for which the subtitle had been changed to “Wherein the Trifling Arguing and Impious Raillery of the Late Earl of Shaftsbury, in his Letter concerning Enthusiasm, and other Profane Writers, Are fully Answer’d and justly Exposed.” In 1709 there would be no reason to expect Astell to know that Shaftesbury wrote the Letter. Swift himself doesn’t seem to have known. However, by 1711 she would have discovered its authorship, once it was included in the first edition of Shaftesbury’s Characteristicks of Men, Manners, Opinions, Times, the authorship of which was well-known. Hence, on the title page of the 1722 edition of Bart’lemy Fair Shaftesbury is named.

It must have rankled Shaftesbury to be confused with Swift. I do not know if the two men ever met personally; although it’s not impossible, I haven’t come across any evidence for it. However, if they didn’t meet, one wonders where the former developed his visceral and very intimate-sounding dislike of the latter. According to a letter to Lord Somers, Shaftesbury had read A Tale of a Tub as early as October 1705. He was not a fan, for later, in 1712, he writes to Pierre Coste: “Witness the prevalency and first success of that detestable writing of that most detestable author of the Tale of a Tub, whose manners, life, and prostitute pen and tongue are indeed exactly answerable to the irregularity, obscenity, profaneness, and fulsomeness of his false wit and scurrilous style and humour.” Did Shaftesbury hate the man, or did he hate that he had been confused with an author who in the intervening years had turned Tory?

The 1708 Letter concerning Enthusiasm was not the last time the two authors would cross paths (or swords) in the public sphere. By 1711, when Shaftesbury’s Characteristicks appeared, he and Swift found themselves on opposite sides in Britain’s increasingly polarized political climate. Shaftesbury was a Whig, and hence supported war with France. Speaking of the gradual rise and improvement of the arts in Britain, Shaftesbury  wrote, “‘Tis with us at present, as with the Roman People in those early Days, when they wanted only repose from Arms to apply themselves to the Improvement of Arts and Studys” (Characteristicks, Vol. I, p. 223).

The following year, Swift, now a confirmed Tory, took an opportunity of attacking Shaftesbury for these words in his Proposal for Correcting, Improving and Ascertaining the English Tongue (1712). The work was dedicated to Tory grandee Robert Harley, Earl of Oxford and Earl Mortimer, who was Queen Anne’s chief minister. Swift writes, “I was glad to find Your LORDSHIP’s Answer in so different a Style, from what hath been commonly made use of on the like Occasions, for some Years past, that all such Thoughts must be deferred to a Time of Peace: A Topick which some have carried so far, that they would not have us, by any means, think of preserving our Civil or Religious Constitution, because we were engaged in a War abroad” (pp. 6-7). In other words, it is the Tories, under Harley, who can be counted on to nurture the arts and belles lettres in England, not warmongering Whigs like Shaftesbury.

“Powell the Puppet-Show-Man”

Back to the puppet shows.

In Tatler No. 50 (4 August 1709), there is a letter from Bath by someone subscribing himself as “Mr. Powell”. The letter was likely written by Benjamin Hoadly (1676-1761), the latitudinarian Bishop of Bangor. It is a satirical attack on Ofspring Blackall, the high flying Tory Bishop of Exeter. Blackall is made to speak through the voice of Mr. Powell. In it, Powell/Blackall writes,

“You are for sowing the seeds of sedition and disobedience among my puppets, and your zeal for the (good old) cause would make you persuade Punch to pull the string from his chops, and not move his jaw when I have a mind he should harangue. Now I appeal to all men, if this is not contrary to that uncontrollable, unaccountable dominion, which by the laws of nature I exercise over them; for all sorts of wood and wire were made for the use and benefit of man… my puppets are my property, and therefore my slaves… I am myself but a great puppet, and can therefore have but a co-ordinate jurisdiction with them. I suppose I have now sufficiently made it appear, that I have a paternal right to keep a puppet-show, and this right I will maintain in my prologues upon all occasions.”
 
I have no desire to bore you with the details of the particular church controversy (the “Bangorian controversy”) that gave rise to the letter. For my purposes, the letter is interesting for two things.

First, although this Tatler postdates Shaftesbury’s Letter concerning Enthusiasm by a year, it shows that the puppet metaphor could be used against the High Flying Tories as well as against the Dissenting fanatics such as the French Prophets.

Second, it introduces us to a curious character in the backwaters of English culture in the Augustan period — Martin Powell, puppet master extraordinaire.

According to the editor of the 1797 edition of the Tatler, “a deformed cripple of the name of Powel was the master of a popular puppet-show at this time, and made Punch utter many things, that would not have been endured in any other way of communication.”

In 1709 he was based in Bath and his show toured the provinces, but obviously he had become well-known enough that his name was familiar to London audiences. With an eye on the main chance, in 1710 he made the move to London and set up “Punch’s Theatre” in St. Martin’s Lane. A year later the theatre moved to Covent Garden. It was here that the visionary Mr. Powell decided that puppets could be much more than mere instruments of low comedy, and so he began to stage puppet versions of the highbrow plays and Italian operas patronized by the beau monde. Muscling in on this market made him the object of ridicule in “up market” papers like the Spectator (see, for example No. 14, 16 March 1711), but nevertheless, audiences flocked to him. His sets and puppets were elaborate mechanical contrivances, so much so that references to “the ingenious Mr. Powell” were much more common than references to “Mr. Powell the deformed cripple puppeteer”. For example, in 1714 there appeared an anonymous book entitled A Second Tale of a Tub: or, the History of Robert Powel the Puppet-Show-Man, written by Sir Thomas Burnet. In it, Burnet writes, “have not even the Orcades, the utmost limits of CAESAR’s Conquest, been filled with the Fame of Mr. POWEL’s mechanical achievements?” (p. xxiv).

Burnet’s book is a rather lame attempt at political satire, trading on the fame of Powell but changing his first name from Martin to Robert, to make him represent Robert, Lord Harley, whom we have already encountered in relation to Swift, above. The hamfisted conceit of the book is that Harley is a sort of political puppet master, “the Celebrated Mr. POWEL, the Puppet-Show Man, who has worthily acquired the Reputation of one of the most dextrous Managers of human Mechanism” (p. xxvi).

A Second Tale of a Tub has a frontispiece with a representation of Martin Powell (shown above). In it, his physical deformity is evident. However, I am inclined to think that the face is not that of Powell but rather of Lord Harley. But I could be wrong. We have no other portraits of Powell with which to compare faces, and the engraving is not particularly detailed or well-executed, so any vague resemblance to Harley’s portraits may be purely accidental.

There is one thing about Powell’s story that puzzles me. According to his entry in the Dictionary of National Biography, “When the fanatics called French prophets were creating disturbances in Moorfields, the ministry ordered Powell to make Punch turn prophet, which he did so well that it soon put an end to the prophets and their prophecies.” As far as I can tell, this story seems to derive ultimately from an anecdote told by Lord Chesterfield, who would have been a child at the time of the event.

So supposedly, rather than violently suppressing the French Prophets, the government hired Powell to mock them with his puppets. Is this what Shaftesbury was referring to in his Letter when, as we saw, he wrote “I am told, for certain, that they [the Camisards] are at this very time the Subject of a choice Droll or Puppet-Show at Bart’lemy-Fair”? There are two things that tell against this hypothesis:

First, Shaftesbury was writing in 1707, but most sources place the event in question in 1710, or in Lord Chesterfield’s words, “about the end of Queen Anne’s reign”. Second, in 1707 Powell was supposedly still in the provinces, only coming to London in 1710.

Accepting these as facts, we are left, I think, with two possibilities. Either

(i) Shaftesbury simply made up the story and the government took up his idea a few years later, thereby providing us with the irony of a Tory ministry putting into practice the tolerant prescriptions of a Whig enemy, or

(ii) the incident was real but the puppets were not Powell’s.

On the other hand, I suppose it is also just possible that the incident was real, that the puppets were Powell’s, and that it took place in 1707. After all, none of the sources for Powell’s life say he never went to London before he moved there permanently in 1710. Indeed, it would be strange for him not to have gone there, at least to take advantage of Bartholomew Fair. Maybe that's how he made an advance name for himself in the city. And in any case, there is little reason we should trust Chesterfield’s memory for the details of an event that supposedly occurred when he was but a child. Finally, by 1710, the fuss over the Prophets had waned, thereby obviating the need for the ministry’s measure. These circumstances make it less nonsensical to assign the event to 1707.

I hope I’ve managed to toss you enough tubs for your diversion.

Slumlords and Deadbeats

Chancellor James Kent (1763-1847)

I was recently reading volume three of James Kent’s Commentaries on American Law (1826-1830, 4 volumes) — don’t ask — when I came across his chapter on rent. Engrossing stuff. No, seriously. Kent often does not say much on a given topic that is particularly original, but he has a nice, perspicuous way of laying things out. In this case he treated two particular aspects of rent that I’d probably read about in Blackstone and Coke and other places, but for some reason Kent made me pause and think about them more than I did previously.

First, Kent discussed the once-vexed question of whether a tenant must still pay rent if some misfortune befalls him that is no fault of his, but which prevents him from enjoying the use of the property he rents. He cites the case of Paradine v. Jane (1647). During the Civil War, Jane, the tenant, has his lands occupied by Prince Rupert’s forces for three years, during which time it was plundered. His landlord, Paradine, sued for non-payment of rent. Part of the court felt that Jane shouldn’t have to pay for something he didn’t receive, namely the use of Paradine’s land. However, Justice Rolle’s opinion prevailed, which was that Jane was still liable, since he had undertaken to pay the rent, and his misfortune was not the fault of his landlord.

The fact of the matter is, there has been loss. The question was, at whose feet should that loss be placed? Rolle placed it with the tenant, on the grounds that in agreeing to the lease, he was ipso facto assuming the risk that something might prevent him from enjoying the land.

But by the same reasoning, it could have been placed with the landlord, since he too is a party to the lease; it could just as easily be argued that the landlord thereby ipso facto assumes the risk that misfortune might prevent his tenant from paying his rent. This, in conjunction with the fact that the tenant ultimately has not gotten what he bargained for would seem in my mind to tip the balance in favour of the tenant being relieved and placing the loss with the landlord.

Nevertheless, Rolle’s position became the settled law on the matter. Kent agrees with him, but perhaps sensing the inadequacy of the rationale, offers a different reason of his own, a public policy argument based on the concept of what we now call “moral hazard”. He writes,

“The loss of the rent must fall either on the lessor or lessee, and there is no more equity that the landlord must bear the loss of the property destroyed. The calamity is mutual; and there is much weight in the observation… that these losses… may often proceed from the carelessness of tenants; and if they can escape from the rent, which they may deem inconvenient, by leaving the property carelessly exposed, it might very much lessen the inducements to a reasonable and necessary vigilance on their part.” (pp. 373-374)

In other words, even though Jane was not responsible for the waste to the land, tenants too often are responsible for waste, and holding all tenants strictly liable for rent will ensure that they take care of the properties they rent.

This reasoning is specious. For one thing, it relies on an empirical claim that is by no means obvious — that “punishing” a non-negligent tenant with strict liability will somehow discipline negligent tenants into being more conscientious. If anything, it’s just as likely to make the conscientious tenant more negligent, since the law seemingly punishes both conscientiousness and negligence indiscriminately. For another thing, a non-negligent tenant like Jane could rightly question why he must, through no fault of his own, be made a sacrifice to public policy. Let negligent tenants be punished for their negligence; do not punish the tenant who is reasonably conscientious but merely unfortunate.

Given that, as Kent puts it, “the calamity is mutual”, and that the risks and burdens of loss could equally be placed with either the landlord or the tenant, it is somewhat surprising that a third possible doctrine did not do better against these alternatives, namely a division or apportionment of the loss between the two parties. Apportionment makes considerable sense, since neither of the parties can be said to be at fault, and since equally there is no clear rationale for making either party bear the whole loss. I suppose it shouldn’t surprise me that strict liability beat out apportionment, and that the common law is once again found to favour the propertied.

Kent eventually moves from the subject of strict liability to that of distraint (or “distress”), the landlord’s right to seize a tenant’s moveable chattels for non-payment of rent. Here he notes something unusual about the remedy that I’d never stopped to consider before. Think of the typical remedies the law offers to any other kind of contractual breach. Let’s say I agree to deliver a shipment of widgets to Bob, and Bob in turn agrees to pay me on an agreed day after shipment. The agreed day passes, and Bob does not pay up. Can I enter Bob’s property and help myself to whatever articles I find therein to make up my loss? No, in common law that would be trespass and theft. And yet this is more or less what the common law allowed landlords to do when they didn’t get their rent. (Of course, in modern times the severity of this common law remedy has been fenced around and altered unrecognizably by various local statutory regimes, such as landlord-tenant tribunals, etc.).

Kent believed that the anomalous nature of the remedy of distraint was a relic of feudalism:

“The exorbitant authority and importance of the feudal aristocracy, and the extreme dependence, and even vassalage of the tenants, was the occasion of introducing the law of distresses, and which summary remedy is applicable to no other contracts for the payment of money, than those between landlord and tenant.” (p. 378)

Recognizing its severity, Kent notes that the law gradually developed limitations on the landlord’s right of distraint. For example, he could not take the tenant’s tools and implements of work or trade, nor could he seize his beasts of burden if other movables were available, as these would effectively disable the tenant from ever paying his debt. He could not remove distrained goods from out of the tenant’s county or jurisdiction, nor could he seize goods whose value was more than the unpaid rent, etc.

Kent sees these limitations as a softening of feudal law in favour of equality, and to some extent this is probably true. However, some of the “limitations” on distraint aided the landlord as much as the deadbeat tenant. For example, the statute De Districtione Saccarrii [51 Hen. III] allowed a landlord to impound a tenant’s cattle or other animals, but allowed the tenant access to feed them. Was this for the tenant’s sake, or the landlord’s? I suspect the latter. It relieved the landlord of a financial burden. He could not let the beasts starve, since, for the time being at least, they weren’t his to destroy. And if he was ultimately unable to extract the unpaid rent, he’d have to sell off the animals to recoup his losses, which he would have difficulty doing with dead or starving animals. In the meantime, feeding them could be an expensive proposition. Best to download this responsibility onto the already indebted tenant.

*    *    *    *    *

If you ever get the urge to read Kent, I should warn you of the following:

1. Healthy people do not typically get urges to read such things. You should consider seeking help.
    
2. If you are reading the original 1826-1830 edition (or a facsimile thereof), be prepared for at least one typo per page. It was wretchedly put together by blind typesetters. I mean, we’re talking not just about the odd random misspelling. but about upside down types, misnumbered or unnumbered footnotes, mistitled chapters in the table of contents, and a maddening tendency to spell “statute” as “statue”. However, there is a marked improvement in the fourth volume, the result it seems of a change of printers.
    
3. He devotes an inordinate amount of space to maritime law, marine insurance, marine loans, and the like. Given that the author was from New York, which at the time was (and still is) America’s centre of commerce, his interest is understandable. But I find such topics boring.

Economics as a Moral Science

“Similarly, calls for ‘solidarity’ (or fiscal transfers) run straight into concerns over moral hazard. Mario Monti, a former Italian prime minister, likes to claim that in Germany economics is seen as a branch of moral philosophy.”

— “Of Rules and Order,” The Economist (9 May 2015), p. 47.

The above lines appear in an article on German ordoliberalism that claims the doctrine has become unquestioned orthodoxy among economists and policymakers in Germany, to sometimes detrimental effect. Ordoliberalism is an offshoot of classical liberalism, which advocates a strong role for the state in setting the legal and regulatory framework within which markets can operate to their full potential. It was named after ORDO, the journal strongly associated with the school of thought.

It is not my aim to critique ordoliberalism. I am more interested in Monti’s statement to the effect that Germans see economics as a branch of moral philosophy. The impression given is that Monti sees this as a bad thing, as if economics and moral philosophy should properly be kept separate. On the contrary, I see them as almost necessarily connected and that any attempt to pretend economics has nothing to do with moral philosophy is quixotic at best, downright harmful at worst. It is my belief that economics is a branch of applied ethics.

I will begin by observing that many of the big names in the founding pantheon of economics saw themselves as moral philosophers. Let us not forget that the sainted Adam Smith was Professor of Moral Philosophy at the University of Glasgow from 1752 to 1764, and that before The Wealth of Nations (1776), he was already well-known as the author of The Theory of Moral Sentiments (1759).

Smith’s friend David Hume wrote extensively on moral philosophy in addition to his many well-regarded essays on political economy. In the 18th century there was indeed no clear line separating the one from the other.

Even in the 19th century, Thomas Malthus was a clergyman before he was an economist. His solution to his famed population problem was a moral one: personal sexual restraint. His rejection of birth control was based on the belief that it would undermine public morals.

John Stuart Mill’s Principles of Political Economy (1848), which went through seven editions in his lifetime, was the standard textbook on economics in the 19th century. At the same time, Mill was an exponent of the moral philosophy of utilitarianism who wrote extensively on politics and such questions of “applied” ethics as women’s rights and slavery. Book Six of his A System of Logic (1843) was entitled “The Logic of the Moral Sciences”.

Put simply, the history of economics is littered with famous economists that were also (and even primarily) moral philosophers.

At some point late in the 19th or early in the 20th century, academic philosophy in the English-speaking world decided it would be a value-free “hard” science, akin to physics or mathematics. The fad was to reduce all philosophical problems to linguistic ones, which were in turn seen to be reducible to mathematical ones. This process made academic philosophy the irrelevancy it largely is today. The fact is, not all philosophical problems are linguistic in nature, nor is a language simply a calculus. Indeed, the most interesting things about languages are not mathematical but social.

Economics underwent a similar transformation, at least insofar as it aspired to be a value-free hard science. The problem here is twofold: First, economics necessarily deals with human beings as its subject matter, and human beings are not value-free. Second, stripped of values, it is difficult see what would be the point of economics at all other than to serve basic human curiosity — hardly the sort of endeavor that will attract much grant funding.

Fortunately for us, try as it might, economics cannot avoid being value-laden. The fundamental dependence of economics on morality was exemplified by Adam Smith early on in The Wealth of Nations when he wrote that “Nobody ever saw a dog make a fair and deliberate exchange of one bone for another with another dog” (Bk. I, ch. 2). The notion of voluntary exchange is fundamental to economics, and neither the word “voluntary” nor the word “exchange” is value free. And once we start talking about fair voluntary exchange, we have arguably left the realm of economics proper and stumbled into the land of moral philosophy.

Aside from the concepts used in economics being value-laden, there is a deeper sense in which the discipline is a moral science. It helps to think of what economists do, and of why they do it. Yes, there is the descriptive side of it, the study and explanation of human interaction as embodied in exchange. To be able to do this well it helps to understand and be able to deploy such concepts as “value”, “institution”, “law”, “rule”, custom”, “contract”, “property” (and property “rights”), all of which are grounded in human morality. In other words, a good economist should understand that there is a moral framework that makes economic phenomena possible (it seems to me that German ordoliberalism is on the right track here). Morality is the specie that backs the economist’s paper currency.

But as importantly, there is the prescriptive side of economics, insofar as economists study with an eye to being able to make recommendations as to what will facilitate exchange, maximize production, improve well-being, etc. The bare desire to achieve any of these things presupposes, directly or indirectly, some ethical stance. Put another way,

Every economic policy prescription presupposes a moral philosophy.

By “moral philosophy” here I mean roughly a system of beliefs about what will make people happy (or good, as we’ll see). Philosophers have always asked the fundamental question, “What is the good life?” Economists ultimately ask “What is the best way to achieve the good life?” Whether they know it or not, their prescriptions presuppose an answer to the philosopher’s question.

Now, the prescriptive economist’s moral philosophy may not be a fully conscious thought in the mind of the economist who is prescribing, and whether conscious or not, it may not be all that well worked out. But trust me, it is there.

CONSEQUENTIALISM:

What is the moral philosophy of the prescriptive economist? Most commonly it is some form of maximizing consequentialism, such as utilitarianism. The consequentialist aims at maximizing the good. There is no good unless there is a person who experiences it, and the most obvious candidate for such an experienced good is pleasure. Pleasure has a necessary material basis, and the goal of prescriptive economists is to find ways to create more pleasure, mostly through expanding that material basis. However, beyond this point the details get messy.

For example, one economic prescription may be better at producing a greater amount of pleasure, while another is less good at that but better at making sure that more people get to experience the lesser amount produced. Which should be favoured, the production of greater overall pleasure, regardless of who gets to experience it? Or does distribution matter?

Then there is the sacrifice problem: if we agree that our goal is to maximize overall happiness, this may have to be done by sacrificing the happiness of particular individuals. It may seem like a good bargain from a disinterested point of view (though Nietzsche argued that there is ultimately no such thing as a disinterested point of view). But from the point of view of the person whose interest is being sacrificed, it can justifiably be asked, “Why me? Why should my happiness count for less than another person’s?”

There is also the “poetry or pushpin” problem: not all pleasures are the same. Some seem more worthwhile than others in terms of quality, even if not in terms of quantity. The sadist’s pleasure should not be privileged in the same way as other more innocent pleasures (though if the sadists can be happily paired off with the masochists…). If it’s easier to produce violent video games than sonnets, should we simply abandon sonnets as the less efficient form of pleasure production and plough all our economic efforts into improving on Grand Theft Auto and its dubious ilk? Or are there certain pleasures we should encourage and others we should discourage? If so, on what grounds? These are unavoidably questions of value. If we choose to value some pleasures over others, we must be able to justify that choice, and it seems impossible to do so without leaving the confines of pure utilitarianism.

DEONTOLOGY:
 
After consequentialism, the most common moral philosophy of the prescriptive economist seems to be some form of deontology or rights-based approach. For example, economists of a more libertarian bent will tend to see property rights as inviolable, no matter how much more pleasure the utilitarian might be able to produce through expropriation and redistribution. Often these rights are called “side constraints” in that they constrain the extent to which consequentialists can carry forward their pleasure-producing projects. There is something attractive to this approach, insofar as we feel intuitively that there should be certain things that are simply off-limits to governments, policymakers, regulators, and other assorted do-gooders. We feel that there ought to be a certain sphere in which we can make our own choices (and mistakes) without interference, even if we disagree on just what size and shape that sphere should be.

It is not just libertarian economists that have a tendency to defend their prescriptions in deontological terms. While the libertarian defends an extensive personal sphere, the socialist will emphasize the rights of others, and defend a redistributive scheme on the grounds that others are equally deserving of the fruits of production as those who currently happen to own them. If I own everything and everybody else is starving, how can I defend my holdings in a way that will carry weight with those who are starving? What about their right to eat? When redistribution is defended on the basis that those on the receiving end have a right to what they are given, it is being defended deontologically.

This brings out a central instability in just about any deontological economics. If pushed, the libertarian will often be compelled to shift from deontological to consequentialist argument to defend his rights: “I’m entitled to my entitlements because if I weren’t, production would suffer and we’d all be worse off. I’m a job creator.” This is a consequentialist argument. Deontological ethics requires far more metaphysics to defend it than an economist is typically able to offer; it’s usually easier to make a strategic retreat to consequentialism instead.

It should be noted that the consequentialist can be forced into a similar kind of strategic retreat. Finding that she too ultimately agrees that not everything can be sacrificed on the altar of pleasure production, she will usually fall back on the notion of rules, which can look very much like the deontologist’s side constraints. The difference is that the consequentialist will defend these rules on consequentialist grounds, again avoiding metaphysics. For example, having a rule allowing for inviolable property rights, a rule utilitarian will argue, leads to greater production by allowing property owners to put their property to its most productive use, etc. This rule will contribute to overall happiness in the long run and for greater numbers, even if in specific cases it works what seem like grave injustices. Of course, these claims of ultimate utility may or may not be empirically verifiable, but they allow the utilitarian to seemingly serve two incompatible imperatives — that happiness should be maximized while personal liberty remain unviolated.

PERFECTIONISM:

Aside from consequentialism and deontology, there is another moral position sometimes implicitly adopted by prescriptive economists. Though somewhat rarer, I find it very interesting when I see it, in part because it seems to go against the grain of everything we think of when we think of economics, in that it doesn’t necessarily concern itself with producing utility (nor with personal liberty). Let us call it perfectionism. There are many different kinds of perfectionism. What they tend to have in common is that, put in ethical jargon, they are non-eudaimonistic, meaning that they are not centered around the concept of happiness as such.

Utilitarianism is eudaimonistic, in that it offers views on how to increase happiness, ultimately identifying happiness with goodness. Perfectionism is the opposite of this; it uncouples happiness and goodness. The good may very well be something that has nothing to do with happiness at all. Maybe we live in a kind of broken universe, where the ethical life requires us to be unhappy, in the service of some impersonal good. It may simply be the case that ethical goodness is incompatible with being happy. Up to a point, Christianity presents us with a perfectionist morality, since it counsels us that doing our duties as God wills may require us to suffer greatly. On the other hand, Christianity degenerates into a sort of bastard utilitarianism once it starts offering future rewards and punishments in the hereafter.

Another example of a perfectionist moral theory might be certain versions of virtue ethics, which begin with an account of the virtuous moral agent, while not necessarily tying that virtue to human flourishing or happiness. It is possible to read Nietzsche this way. Malthus arguing against the use of birth control might be another instance.

What does a perfectionist economic prescription look like? Well one sees hints of it in talk of “moral hazard”. For example, some economists argue against certain schemes of public insurance because they remove the incentive to exercise caution in one’s affairs. Now this could be given a utilitarian spin: public insurance increases negligence, which increases the number of accidents, which increases overall costs, thereby decreasing overall utility and happiness. But it sometimes sounds more as if the economist is offering a virtue-ethical position: negligent citizens are less virtuous than prudent ones, so that if insurance encourages negligent behavior, it is encouraging vice. In other words, it’s not about negligence as it pertains to productivity, but negligence as it is a vicious trait of character.

A similar situation holds with regard to many of the arguments one hears against welfare or other forms of poor relief: it removes the incentive for poor people to work. This can mean that it discourages productivity (utilitarianism), or it can mean that it makes poor people lazy (virtue ethical perfectionism). Another example might be arguments offered against safe injection sites.

In practice, economists have a tendency to slide from one way of speaking to the other without thinking much about it. This interests me, because this slippage gives a window into the economist’s moral stance and value commitments at the exact moment when they think they are practicing a value-free science. The economist who speaks of the “unintended consequences” of welfare sometimes betrays an assumption that poor people are naturally vicious — or will be if given the barest opportunity.

In any case, whether consequentialist, deontological, or perfectionist, or some inconsistent mixture of these, economists are unavoidably practicing a kind of moral philosophy in doing what they do. Whether they are also practicing a moral science is less clear.