Mark L.

Barr
The Common Law Illusion:
Literary Justice in Coleridge's On the Constitution of the Church and State
This paper traces Samuel Taylor Coleridge's engagement with issues of legal interpretation late
in his career and most particularly in On the Constitution of the Church and State. Having long
noted the political and social ramifications of the supposedly systematic interpretation of legal
precedent lying at the heart of the common law, Coleridge suggests that a group of cultural
trustees, the Clerisy, could perform a quasi-judicial role to guide reading in the public sphere.
Only through such leadership, he suggests, could justice be revived from its then-defunct state.
However, the paper concludes by suggesting neither Coleridge nor any modern legal scholar who
invokes romantic reading strategies can achieve the vaunted interpretive objectivity legal
authority seems to require. Precedent is, in fact, a rhetorical illusion, a repression of
revolutionary trauma experienced in and before the Romantic Period.
**********
In the late 1700's, the capacity and incapacity of legal institutions to produce justice was at the
center of social discourse. If the sensations of the Scottish and English sedition and treason trials
of 1793 and 1794 are insufficient support for this proposition, David Lieberman's catalogue of
historio-graphical pronouncements on the issue is more general evidence for a consensus. In the
18th century, "The Law was elevated ... to a role more prominent than at any period" in English
History, claims E.P. Thompson (1978, 144). Roy Porter adds that "the law and its execution were
not just Government fiats or ruling class weapons but an intimate part of community life" (1982,
150). John Brewer suggests that "Most Englishmen experienced government and understood
politics through their dealings with the law" (1980, 133, 135). Lewis Namier agrees as does
J.C.D Clark, implying the importance of law and local legal tribunals in mediating the encounter
between citizen and government (Namier 1929, i:54; Clark 1985).The confluence of law and
politics was not merely an obvious but a compelling topic of literary concern.
Coming to political awareness during the 1780s and 1790's, Samuel Taylor Coleridge became
highly interested in the nature and social role of law early in his career. His 1794 sonnet to the
prominent barrister Thomas Erskine, his "Lecture on the Slave Trade" (1795), his trenchant
condemnation of the 1795 "Gagging Acts" in "The Plot Discovered," and even the mil-lenarian
frenzy of "Religious Musings" (1794) all evidence not merely a general concern with law, but a
keen engagement with its textual, procedural and political dimensions. Focusing on the second
half of Coleridge's career, this paper will suggest that his concern did not fade with time but
rather increased in sophistication of analysis and scope. Part I traces Coleridge's continued
interest in legal issues and how it began to find expression in his latest writings on politics. Part
II suggests that Coleridge found in the legal concept of the trust a vehicle he hoped could house
and preserve a cultural inheritance that could help stabilize textual interpretation; such
stabilization could, he felt, produce justice through adherence to a system of precedent
administered by a group of quasi-judical "Clerisy," discussed in part III. However, while part IV
argues that Coleridge saw this justice as arising from a cultural belief epitomized in a kind of
literary interpretation based on Shakespearean principles, partV goes on to argue that then, as

now, any claim that "objective" standards of textual interpretation produce justice are illusory, a
mere covering for an historical trauma that can be traced back to the Romantic period or before.
I.
In May of 1811, Samuel Taylor Coleridge wrote a strident letter to the London Courier regarding
sentences handed down to criminals in the recent County Sessions, among these the whipping of
three women for various acts of petty theft: (1)
"Thou rascal Beadle, hold thy bloody hand!
Why dost thou whip that woman?" (King Lear 3:ii:139-41)
In this instance, Coleridge turns England's "philosophic Shakespeare" into a legal authority (his
emphasis) to refute the legislative pronouncement embodied authority (his emphasis) to refute
the legislative pronouncement embodied in current penal law. The artistic creations of this
greatest English poet contain "moral aphorisms" that guide individuals to just action better than
any statute or legal precedent. Moreover, these principles are "dispassionate and unfactious,"
standing as a potential objective corrective to the supposedly party-driven interests that guide
innovation in the legal and political realm. But what may go unnoticed in this application of
Shakespearean precedent is Coleridge's role as selector and interpreter of the quotation. As a
dramatic utterance, the quotation's meaning is at best ambiguous, nor does Coleridge explain
why a quotation from perhaps MacBeth or Julius Caesar, encouraging murder and punishment,
might not be more appropriate. What Coleridge presents here as authority is not so much the
moral aphorism of England's national poet as law derived through interpretive practice, where in
one presented as having a special relationship to authority is given the capacity to act as sibyl or
prophet, selecting and interpreting that authority in some desired fashion. In voicing doubts
about the injustice enacted through current legislation, Coleridge joins Jeremy Bentham, William
Godwin and even Sir William Blackstone in a concern over the failure of contemporary political
and legal institutions to manifest "justice." Unlike his contemporaries, however, as he outlines
more fully in On the Constitution of the Church and State ("Church and State"), Coleridge
suggests that justice should arise from the interpretive aesthetic of a group of literary and cultural
critics, the "clerisy." In Church and State, Coleridge erects a constitutional scheme to enable a
national reading community guided by this clerisy, so that the circulation of print through that
community will result in readings of literary and legal texts regulated by a shared sense of
custom and value. Using the Bill for the Relief of His Majesty's Roman Catholic Subjects ("The
Catholic Relief Bill") as the focus of interpretation, Church and State becomes one extended
guide to the reading of that bill and its constitutional implications, thus demonstrating the
clerisy's role in the process of political decision-making (here, the evaluation of proposed
legislation) and showing that role to be a new manifestation of the systematic organization
Coleridge sees as necessary to curtail the radical potential of free will in the act of interpretation.
(2) Nor, I suggest, is this a mere historical curiosity: for here lie the seeds of a modern legal
interpretive practice that had its beginnings in Coleridge's day. In the increasing predilection of
legal theorists such as Ronald Dworkin, Stephen Knapp and Roberto Unger to invoke Romantic
paradigms of literary interpretation for use in judgment, we see the replication of a Coleridgean

illusion that justice can be achieved through a reading strategy which simply masks the very
Jacobinical innovation it seeks to eliminate.
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In Church and State, Coleridge advocates a form of social organization in which the balance
between opposing and mutually regulating structures is maintained by an external organization
of trustee-like figures, the clerisy. Near the start of his treatise to propound a new constitutional
form, he defines how a constitution should be constructed:
"Antagonistic powers" within the constitution itself maintain balance and preserve the English
nation from the kinds of "disturbance" (i.e. revolutions and wars) that had recently occurred in
Europe (Coleridge 1969, 10:23). These powers, or opposing interests in the state, Coleridge
labels "PERMANENCE and . . . PROGRESSION" (10:24). These opposing interests Coleridge
claims are embodied in the landed classes and the "Novi Homines," or rising, mercantile and
financially mobile middle classes, respectively (10:24-25). The goal of the latter, he suggests, is
to acquire a sufficient mass of mobile property or personalty to be able to transform it into real
property, to acquire titles and hereditary entitlements and to become "the staple ring of the chain,
by which the present will become connected with the past; and the test and evidence of
permanency afforded" (10:25). Thus, Coleridge associates each opposing class force with a
further opposition embedded within economic and legal discourse. The landed classes derive
their power mainly from real property, the others from the mobility and speculative potential
inherent in personalty. Thus, their fundamentally opposed and mutually regulating social roles
are further manifested in a type of property, a step Coleridge sees as necessary stemming from as
far back as the lecture of 1795 when, under the influence of Burke, he theorized that only the
backing of property (especially real property) could give the power necessary to any group to
maintain power and authority over the frenzied and untutored mob that was the fear of every
fledgling democrat.(3) However, Coleridge goes on to suggest that even this fundamental
opposition lying at the heart of the state needs regulation. That regulation is provided by the
trusteeship of a new group, the clerisy.
Coleridge describes the clerisy as a "permanent class or order" with the following organization
and duties:
In short, the clerisy are guardians of knowledge and culture who disseminate and maintain
cultural values over time. They are a conglomerate body with a permanence established through
legal institutionalization who control both real and cultural property or "nationalty" and can stop
it from being alienated, transformed and destroyed--this property is their source of power and
authority, analogous to the realty and personalty held by the Landed and Mercantile classes
respectively. An important distinction, however, between these groups and the clerisy is that the
latter do not hold their nationalty for their own good, but for the use of the nation--they
"preserve" and "guard" these national treasures for the people's enjoyment. This division between
ownership and enjoyment is a pattern analogous to that found in the legal concept of trust.
II.

The technical idea of a trust does not appear early in Coleridge's work. Perhaps the first notice he
takes of it (in the context of fiduciary relationships) is in the Watchman article on the case of
Docksey v. Panting. In a report partially or completely written by Rev. John Edwards, the
Watchman describes Thomas Erskine's speech on behalf of the plaintiff in a case of fiduciary
breech, in which an apothecary (Panting, the defendant) persuaded Peter Garrick, the senile
brother of David, to revise his will and bequeath all his estate to the defendant. In the report, as
Garrick is described in terms of his brother's famous portrayal of Lear, Panting's violation of the
brother becomes somewhat extravagantly described as a violation of the actor and, moreover, as
a violation of the actor's work done in the cause of bringing Shakespeare to the stage. Fiduciary
breech becomes the violation of a cultural inheritance. Coleridge was at least impressed by
Erskine's speech and we may perhaps interpret Erskine's moral outrage at the fiduciary breach as
Coleridge's own (1969, 2:142 n2). Yet, although Coleridge does not more fully explore his
interest in fiduciary relationships until Church and State itself, the prevalence of trusts in the
contemporary social and legal spheres may have suggested to him the utility of the trust as a
metaphor governing relationships between clerisy and nationalty.
The trust had its heyday through the eighteenth and early nineteenth centuries, finding its
strongest expression in the desire of the landed gentry to restrict alienation of real and (to a lesser
extent) personal property in their heirs. Although the doctrine of estates had always applied to
land, allowing the establishment of tenures less than the fee simple, such as the fee tail and life
estate, the common law decision allowing entails to be barred had short-circuited the utility of
these lesser tenures to restrict alienation in heirs.(4) Unlike the fee simple (which allows full
rights to the owner to, e.g., sell the property), the fee tail estate bound the current holder of that
interest to alienate the property only to the heirs of his body. Thus, barring the entail (the "tail"
being the restriction to the descendants) essentially converted the fee tail to a fee simple. After
that decision, an individual with a fee tail could freely alienate property, not just mortgage it to
the hilt. Real property could be traded like a commodity. However, the trust, embedded at the
heart of the legal structure known as the "strict settlement" could solve this problem.
Schematically, a strict settlement was the granting of a life estate to a son (usually a groom on
the occasion of his wedding) with a remainder to his unborn heirs with the provision that, should
the groom's estate determine or end (e.g., he tried to sell it) prematurely (e.g., before his death)
the land would go into trust for the remainder of the groom's life and then devolve to the groom's
male heirs. The trust was necessary because the life estate to the groom (remainder to his heirs)
was considered to create a fee tail in the groom, a fee tail with only a contingent remainder (to
unborn children) which was barrable at common law--i.e., without the trust, the groom actually
got a fully alienable fee simple with no guarantee that he would keep the land in the family.
Thus, the trust was crucial to ensuring the family dynasty remained intact between generations.
Only the imposition of a trust to maintain the contingent remainders (to the unborn heir or heirs)
enforced absolutely the will of the grantor. Lawyers developed the strict settlement (with the
vital trust element) as a reaction to the unfortunate effect of the barrable remainder in order to
fulfill the desire of their clients to control property dynastically. Thus, the trust (in both the strict
settlement and in the executorship) allowed the creation of a type of property that could be
effectively controlled by the dead, one in which (when necessary) the legal title was separated
from the beneficial ownership, entailing the preservation of the property for future generations
(Spring 1988, 454-60).

The strict settlement was the (virtually) sole vehicle through which the landed classes were able
to and did control the devolution of real property through a series of generations (from the 1700's
through the early 20th century). The reason that a trust was so effective in maintaining this
control from beyond the grave was that its administration and the legal title to the trust property
resided with one party (the trustee or trustees) while the equitable benefit or enjoyment of the
property resided with the trust beneficiaries according to the dictates of the trust instrument as
administered within the conscience of the trustees. The conscience of the trustee was that which
bound him to follow and supplement the orders of the deceased and administer the trust property
fairly according to the instrument's dictates (in the case of a strict settlement, this was often a
bare or simple trust without restrictions save on alienation). Thus, the trust enabled control
beyond the point of alienation and allowed a grantor the same control over personal as real
property. Furthermore, the trust maintained an immortal conscience which ensured the controlled
and proper devolution of this inheritance.
In suggesting that the clerisy holds the nationalty in trust, Coleridge invokes a form of legal
control intermediate between those available to realty and personalty. Trust can encompass and
combine both forms of property. Metaphorically, therefore, the clerisy can knit together realty
and personalty, upper and middle class, noble and merchant, permanence and progression--past
and future. For, above all, the trust was a vehicle for enabling the will of the past to be manifest
in the present and into tomorrow. It was a means of control partly fixed and partly adaptable to
particular circumstances based on the conscience of the trustee. Coleridge implies that by
"constituting" a trust (which is still the technical term for trust formation), out of public and
private property for administration by the clerisy, the clerisy itself will become the embodiment
of historical and traditional ideology, ideology that will both guide and be modified in accord
with the conscience of the trustees. Due to the construction of the constitution itself, insofar as
the nation was required to listen to the clerisy's containing dictates, the nation would come to
express the clerisy's conscience, an echo of the past that determined the alteration of the political
form in years to come and guide the will of the people into appropriate political, literary or
religious expression. The clerisy is thus "an essential element of a rightly constituted nation,
without which it wants the best security alike for its permanence and its progression" (1969,
10:69). The practical function of the clerisy Coleridge himself demonstrates in Church and State:
Coleridge as interpretive guide becomes a representative of the clerisy and acts to direct his
reader's act of judgment by uttering a body of traditional cultural and academic knowledge
necessary both for the reading of this one Bill and for the exercise of discretion by any large
body of people that decides the future state of the law, the constitution and the nation itself. In
doing this, Coleridge creates an institution designed to safeguard the very framework of society
itself, a constitutional function which Coleridge suggests the common law judges have failed to
uphold.
III.
Historical sources for Coleridge's notion of the clerisy are many, but they are often ones that tie
the clerisy to the interpretation and application of the law. One example is in his Lectures on the
History of Philosophy in 1818, in particular in his description of the Pythagoreans. In his Second
Lecture, recorded in the Ferer manuscript as having been given December 28 1818, Coleridge
calls Pythagorus the "first philosopher," describing him in terms remarkably similar to those he

would apply to the clerisy a decade later in the Constitution of Church and State. Pythagorus was
of a wealthy but middle-class background, having been raised in a trading town, a center of
commerce that provided him with opportunity to converse with mariners, to travel and see much
of the known world (1969, 8:i:65). On return, he immigrated to southern Italy because the
political climate under the dictator Polycrates would, he believed, create "factions and
revolutions inconsistent with his purpose," which was to began a broad-ranging project of
education (8:i:69). Through appearing disinterested and objective he convinced first the highest
ranks of people, but eventually even the lowest, that their current miseries arose from ignorance.
Although the people requested that he provide them with constitutions, or modes of government,
he refused, claiming that they must find their own form of government which could not be
instigated or continued without self-reformation. To encourage this self reformation, he created
schools in which the carefully-selected pupils were trained in morality and self discipline, only
then being offered some of the master's secret truths so as to prepare their minds for the greater
truths that they would discover on their own. Coleridge describes this as the method of "moral
politics," in which the student does not become mastered by received wisdom, but has an inner
principle awakened that exerts a self-governing force to cover multiple future situations.(5)
These students would then leave the school and participate in the two great ends of the
Pythagorean method--to prepare men to be governed and to govern. Consequently, many cities
took all their magistrates from the ranks of the Pythagoreans. However, in pursuing rulership the
Pythagoreans began to neglect education and therein lay the seeds of their own destruction-unprepared for self government, roused by demagogues, the people rebelled against this
perceived privileged, prosperous and exclusive organization. It disintegrated (8:i:71). Coleridge
saw the Girondins of the 1795 Moral and Political Lecture suffer this fate, and it is anxiety over
this doom which leads to his admonitions to the clerisy for restraint in the 1829 Church and
State. The role of the clerisy, insofar as it is similar to that of the Pythagoreans, is to govern
through a dissemination of knowledge that awakens appropriate modes of thought and discretion.
A further source Coleridge expresses for the clerisy is in the Levites, described in the Second
Lecture on Revealed Religion as "the Lawyers as well as the Priests of the Country" whose
interest it was "to make up Quarrels and prevent lawsuits to the utmost of their Power" (1:137).
Moreover, they were "teachers in order to keep the People free from Idolatry, and they were
directly appointed by Moses" (1:1 37). As he states in Church and State, the role of the Levites in
arbitrating disputes and maintaining cultural tradition was part of the "perfection of the
machinery" of the Hebrew state. Their function in that ancient nation is analogous to the one
Coleridge propounds in his treatise (10:34, 32-5.).
Whether the clerisy is a caste of Greek philosopher kings who govern and judge according to a
principle of morality awakened within them by the study of moral rules and self discipline, or a
priestly order that both teaches and maintains a traditional mosaic law while applying it to
resolve disputes between citizens, Coleridge often specifically stresses the legalistic nature of
their guardianship: they help in the permanence and progression of "laws, institutions, tenures,
rights, privileges, freedoms, obligations" (1969 10:53). In at least one draft he also states that
their role is to train up the populace into "legality" and "the obligations of a well calculated Self
interest" (10:213-14). This role of embodying and expressing a traditional knowledge to guide a
public (often legal) exercise of discretion is very similar to that described by Blackstone as the
role of the common law judge.

For Blackstone, the royal judges are the arbiters of an unwritten common law "discovered" by
applying reason to tradition: "They [the judges] are the depositary of the laws; the living oracles,
who must decide in all cases of doubt, and who are bound by an oath to decide according to the
law of the land. Their knowledge of the law is derived from experience and study ... and from
being long personally accustomed to the judicial decisions of their predecessors" (2001, 1:69).
This "law of the land" of which the judges are depository is a law supposedly common to us all
evidenced by established tradition:
Thus, steeped in a knowledge of tradition maintained and supplemented by the written rules of
past decisions, the judge speaks as the member of an institutionalized community that does not
innovate so much as gradually perfect the expression of a supposedly complete and stable ground
of justice:
Blackstone, like Coleridge, sees this role as maintaining the coherence and balance of the
constitution. As Stanley Katz argues in his introduction to a modern facsimile edition of the
Commentaries, Blackstone conceived of the royal judges as guardians of the constitution,
"constitution" at that time being defined as all the laws of the nation. Existing outside the
tripartite structure of English government, the judges nevertheless played an important role in
keeping the balance between King, Lords and Commons (1979, xi). Evidence for this position in
Blackstone is implicit but extant. For example, he at one point stresses the independence of
judges from the King, his ministers and agents and places this independence in the context of
other 1688 reforms that placed the law above the King, reforms such as regulating the laws of
high treason and restraining the King's pardon for impeachments in Parliament (2001, 4:433). By
safeguarding the law, the judges safeguard the constitutional balance.
This is a role Coleridge explicitly discusses in Church and State, suggesting that it must now
ultimately be taken up by the people in consultation with the Clerisy. Citing the 1648 pamphlet
"The Royalist's Defence," Coleridge acknowledges that the role of judges is to uphold the
common law and ensure that parliament follows these laws:
However, Coleridge goes on to assert that judges now refuse to fulfill this sacred duty, leaving it
to fall to a new institution:
In an allusion to the imprisonment of Leveller John Lilburne in 1645 (where his main argument
in defence was that the people held ultimate legal authority) (Green 1987, 347-8; see also 307,
311, 336 and 382.), Coleridge maintains that the right to determine law still adheres in the
people, quoting the following verse of the Puritan George Withers from that time:
This "auguster Thing" is the very readership Coleridge addresses and guides through a reading of
the Catholic Relief Bill in Church and State.
The relationship Coleridge suggests should exist between clerisy and populace mirrors closely
that which Blackstone posits between judge and jury. Looking back to the decision in Bushel's
case (roughly contemporaneous with Lilburne's trial), Blackstone emphasizes that the judge can
no longer control the jury's verdict--they cannot be imprisoned, starved or punished for rendering
a "wrong" verdict (2001, 3:354-55). The judge's role is to give directions and advice and to

provide the legal context (i.e., the context of custom and history) within which the jury will fit its
factual findings to a verdict:
This is the role Coleridge enacts as clerisy in Church and State. Suggesting that the status of
judges as constitutional guardians is now defunct, he lays the power in the people, properly
guided by the context of precedent and history provided by the Clerisy, to keep, safeguard and
evolve the constitution in a fit and stable direction. This power, he suggests, is exercised
primarily through acts of interpretation, the clerisy holding in trust the cultural keys to
appropriate reading. The raison d'etre of Church and State is a description of the idea of a
constitution so as to provide guidance to Coleridge's readers (an educated elite) who are like the
second level of clerisy who will go out and change and safeguard the world. As Coleridge is at
pains to point out, the idea of the constitution is something ineffable but which can be manifested
(imperfectly) in a political system (10:18-20, 2). By describing what he believes to be the best
manifestation of that idea, Coleridge (like a representative of the first level of clerisy) gives an
objective basis on which others can evaluate alterations or additions to the current constitutional
manifestation in political organization, including the current Catholic Bill under consideration in
Parliament. The commentator in Church and State supplies criteria for judging legislative text, a
context that guides the interpretation. Articulating fundamental constitutional principles, the
author of Church and State provides,
Although the metaphor is predominantly medical, it starts with the legal--the clerisy, like a judge,
provides the framework in which new ideas will be "tried." In short, Coleridge envisions the
clerisy as not merely guardians of literary or cultural taste, but as authorities who contain a mass
of shared knowledge that will enable the "correct" interpretation of literary and legal texts,
interpretations that will ensure the shape and framework of the nation remains stable and intact
during any period of social or political change. Coleridge, like a Shakespearean critic,
Pythagorean statesman, or Levite, is an oracle of a "common law" on which to base decisions in
the political realm. In Coleridge's mind there is no separation between legal and literary
discourse: being a cultural guardian means to interpret legal and literary writing with equal
authority. The clerisy must read Shakespeare and legal precedent with equal facility and
authority, for they must embody the capacities of sage and common law judge if they are to
guide the polity to express truly the law common to us all.
IV.
However, the ultimate principle to guide the interpretation of legal texts arises, Coleridge
suggests, in the literary realm. Although his appeal to Shakespeare as moral and legal authority is
clear in his letter on the whipping of women, Coleridge again invokes Shakespearean authority
as the motto to Church and State itself.
THERE IS A MYSTERY IN THE SOUL OF STATE,
WHICH HATH AN OPERATION MORE DIVINE
THAN OUR MERE CHRONICLERS DARE MEDDLE WITH

(Coleridge 1969, 10:10).

Added to the second edition, this adaptation from Troilus and Cressida suggests that "mere
chroniclers," mere historians, cannot fully apprehend the nature of the state. Looking merely at
historical precedent is insufficient. The "mystery in the soul of the state" is, by implication,
something open to exploration by Shakespeare, Coleridge's epitome of authorship and, by
extension, open to other authors and those who study their works. The literary sphere and most
particularly Shakespeare becomes for Coleridge the quintessential embodiment of the nationalty,
cultural property and sense of common value that will guide legal and literary interpretation.
As far back as 1808, Coleridge had been speaking of Shakespeare not as some wild, radical
genius who broke the historically-established laws of literary propriety, but as a legislator of the
true poetic law, as one who expressed the laws of poetry written in the heart of every person
which corrected the corrupt manifestation of these laws found in established literary and legal
institutions (1969,5:i:78-79). R.H. Fogle in his study of "organic unity" first fully articulated
Coleridge's quest for objective principles of judgment, noting his claim that if there is any basis
on which to judge art there must be:
Following in the Eighteenth-Century tradition of Addison, Johnson and Blair, Coleridge argues
for innate taste that must necessarily be expressed by any sufficiently-developed mind living
within the requisite "state of intellectual and moral culture." Like his conceptual forebears,
Coleridge attempts to articulate as a set of maxims the elements of taste, a task necessary before
they can be used to constitute an objective measure for literary judgment. In his analysis of
Shakespeare, the embodiment of the English literary heritage, Coleridge begins to shape (really
find or insert) his guide to judgment under the head of "organic unity," a concept he develops
from Leibniz, Sulzer, Herder, Goethe, and particularly Schlegel.
As Fogle shows, Coleridge places organic unity at the center of human imagination embodying a
"fundamental reconciliation of opposites" (1962, 52). The principle of organic unity, supposedly
the pattern and form of life and thought, becomes the criterion of judgment in the aesthetic and
legal realms. Coleridge's reading of Hamlet for instance, treats the first scene as "a microcosm of
structural harmony, containing gradation, transition, development, contrast and variety of
intensity and pace" (16). The scene is a whole in itself which is repeated throughout the play, all
the component parts creating a unified harmonious body which constantly repeats itself in
miniature. Within any artistic work is the germ or seed from which it grows in a complex, fractal
design, ever-repeating the pattern of thesis, antithesis and synthesis which is the reconciliation of
opposites Coleridge sees as the essential form of this seed: While the nebulous concept of
"organic unity" in truth supplies no more objectivity to the process of judgment than the
politically-driven criteria Coleridge himself decries, the concept does have a putative English
history, in Shakespeare--a history giving it the supposed cultural context and containment
Blackstone (and Coleridge) saw as so crucial to the purity and justice of the common law. The
concept of balance and inner harmony Coleridge imports into his conception of the state--those
who maintain that balance, the clerisy, thus become an expression of the Shakespearean common
law.
V.

However, in spite of his efforts to anchor reading practices in supposedly objective and culturally
common criteria and principles, Coleridge cannot avoid the very innovation and Jacobinical
imagination he decries in lawmakers. (6) As with his manipulation of the quotation from Lear,
used to condemn the whipping of women, in his work he reveals the same predilection to modify
as any judge or legislator. The verses Coleridge cites in Church and State and attributes to
Withers have Coleridge's own significant alterations and emendations. In his alteration of line 9
(substituting "deeper life" for "a deeper thing,"), deleting part of line 10, omitting lines 11-26 and
altering the last two lines from the original (originally "And, know there is, on earth, a greaterthing,/ Than, an unrighteous Parliament or King") he reveals that the office of clerisy is open to
the same attack Bentham levied against the office of common law judge, that he is an inventor,
that the common law he guards and discovers is suffused with "fiction," a "syphilis which runs
into every vein and carries into every part of the system the principle of rottenness" (1962,5:92).
This is the very same accusation that was levied against Sir John Scott's work as solicitor general
during the Regency Crisis and which Coleridge revives in reaction to Scott's (Lord Eldon's) Wat
Tyler decision in 1801. On November 20 of 1788, George III had what was likely the first of his
periodic lapses into insanity, instigating a flurry of political activity and legal wrangling to
determine who should run the state during his disability. Speaking on the issue of appointing a
regent to administer the King's affairs, namely to open parliament in order that legislation could
be passed to appoint a regent, Scott was of the opinion that no regent was needed, that the
political capacity of the King was intact (if not his personal capacity) and that the constitution
established no precedent for appointing a regent in such a situation. There was especially no
precedent, he urged, that the next in the line of succession should be regent; this was the Prince
of Wales whose politics were greatly at odds with those of his father and the established
government. In such a case, Scott argued, it fell to Parliament to appoint whatever regent it saw
fit. In concluding his argument to the House, Scott stated:
Since the King's "politic capacity" remained intact, it was sufficient to affix the King's Seal to the
commission to open parliament so that legislation could be passed appointing the regent.
Although the King's fit of madness passed before it was found necessary to appoint the regent,
the opposition's reaction to Scott's maneuvering is telling. As Campbell records, Scott's
maneuvering was seen in the 20th edition of The Rolliad as a kind of prestidigitation that placed
his act of legal interpretation on par with MacBeth's witches'spell:
INCANTATION, or Raising a Phantom; Imitated from "MacBeth," and lately performed byHis
Majesty's Servants in Westminster.
Campbell adds that Lord Belgrave likewise satirized Scott's efforts in the following lines:
With metaphysic art his speech he plann'd,
And said--what nobody could understand. (Campbell 1878, 8:410)
Many began to see Scott as one who dissembled and used his legal authority to disguise
decisions made on more arbitrary and less legally consistent and coherent grounds; moreover,

they saw Scott's act of legal interpretation as associated with a kind of literary imaginative flight
of fancy--he created and manipulated precedent. Published in The Rolliad in 1789, the MacBeth
satire implies Scott's exercise of "legal judgment" is imaginative, fickle, arbitrary and unbounded
by any considerations of precedent. Scott is here satirized as a kind of original author--he makes
a "stillborn" something from nothing, or at most from a hodgepodge of trivial and unrelated
ingredients stirred in an "enchanted pot."
This accusation of invention Coleridge himself picked up and levied against Scott in 1801.
Poking fun at Scott in a note to "An Ode to Addington" printed in The Morning Post of 27 May,
Coleridge alludes to the one-time prosecutor's ability to play fast and loose with interpretive rule:
Although Coleridge here satirizes Scott, Lord Eldon, as a prophet, the central message, that
Eldon's exercise of judicial discretion is arbitrary and despotic, is a serious one. Equity, claims
Coleridge in an attack on Eldon's inequitable stance during the Bullion Controversy, is supposed
to be "equal justice for all mankind, whether authorized by law or not" (1969, 3:iii:12). Justice
for Coleridge is that which arises from reading law within its historical and institutional context-it must be read within a system or it will merely express the desires of the interpreter. What
Coleridge sees Eldon as doing is a kind of wrong-headed "prophecy:" he engages in a form of
literary interpretation that is unbound by anything but his own predilection and, as a
consequence, is satirized as always reading a text incorrectly. Although, in Church and State,
Coleridge designs a constitutional balance guarded by cultural trustees, trained to find and
express a "common law" that contextualizes and grounds public exercises of discretion, his
manipulation of his own precedents reveals them to be just as groundless and "imaginary" as the
common law expounded and preserved by the common law judges the clerisy is supposed to
replace.
In short, the Coleridgean interpretive aesthetic is bankrupt if its goal is to seek any objective
cultural criteria for judgment, a Shakespearean common law. Perhaps it could not help but be so.
However, in an imitation of how the common law is formed through individual judgments either
being cited or ignored in subsequent decisions over time, the rhetorical power of Church and
State has caused it to be "picked up" by subsequent legal and political thinkers, has caused its
authority to crystallize into reality as modern legal scholars have seemingly absorbed
Coleridgean ideas. In Law's Empire Ronald Dworkin suggests that the incorporation of new
decisions into lines of precedent should be like the creation of a "chain novel" in which
judgments should "follow from the principles of personal and political morality ... explicit
decisions presuppose by way of justification" (1986, 96). Both a reader and writer, Dworkin's
judge fits his new decision into aesthetic criteria deemed to create the best "fit" between past
themes and those extending into the future. In short, supposedly within precedent are latent,
universal principles that enable judges to read and write new texts in the present.
It is a notion similar to Coleridge's organic unity--after all, both seem little more than a
paraphrase of Blackstone's concept of the common law enunciating a morality common to us all.
In both cases, the ultimate judgment, after all the verbal and rhetorical gymnastics involved in
writing the newest chapter, requires the judge to determine which interpretation fits "best, all
things considered" (Dworkin 1986, 231). Although they follow a method designed to minimize
the exercise of unfettered imagination in the act of judgment, Dworkin's judges are no less

jacobinical than Coleridge's sibyl-like clerisy. Both are trustees of an encoded past that only they
are supposedly qualified to interpret and apply to present texts--but both at the core use personal
conscience as the central criterion of judgment. It is their choice as to what precedents to follow,
their choice how to interpret and apply those precedents. As Roberto Unger suggested as far back
as l975, even those judges who genuinely feel they bow to the dictates of precedent are at best
deluding themselves: they are adhering to the illusory essentialist notion that words and
precedents have "objective" meanings that may serve to guide present decisions (1975, 83-103).
I'm not suggesting that Dworkin has been reading Coleridge so much as that our entire society
has been reading and absorbing Coleridge and a romantic ideology of literary interpretation for
the last 200 years. As Jerome McGann has suggested in his seminal new historical study of the
romantic influence on modern critical practice, modern romantics scholars have at least
uncritically absorbed romantic norms (1983, 1). I would suggest that this absorption can be
applied to legal interpretive norms as well. Law is a reading practice, and legal scholars have
rightfully been obsessed with the criteria used to interpret legal texts. As with Coleridge's
application of Shakespeare to the whipping of women, while many judges would like us to think
that the law speaks for itself or can at least be read within a context of safeguards that limit or
eliminate personal discretion, it remains in the interpretation and selection of precedent that law
and justice arise. The ability to make such interpretations predictable would go a long way to
assuaging criticism as common today as in Coleridge's time--that law is legislation from "activist
judges," or the rule of the chancellor's foot (as Lord Eldon said in 1805), or what the judge had
for breakfast (in Dworkin's words) (Holdsworth 1956-82, 13:620; Dworkin 1986, 36, describing
legal realism). Other legal theorists such as Steven Knapp have quite consciously invoked
romantic norms (in this case, Keats' negative capability) in an attempt to stabilize legal meaning
and eliminate discretion. One can read it as an institutional development parallel to the
elimination of the medieval King's Eyre, the creation of the common law writ process or the
abolition of privy seal courts in Elizabethan times. It is an attempt to make justice a flexible,
adaptive machine capable of grinding off one man's sack of meal the same as another (as
Coleridge put it; 1969, 7:ii: 111-12).
But the difficulty with modern attempts to adapt romantic literary concepts to create such a
machine is the illusion of "objectivity" they create. Embedded within our romantic notions of
literature and literary interpretation lie ideological investments that inevitably colour the
interpretive result. Richard Posner once went so far as to suggest that romantic values evidence
an infantile desire to be free of the "political, legal and religious restraints that have evolved to
tame the beast in man and create peace and prosperity" (1988, 146), implying that a literature
encouraging the breach of ideological constraint naturally leads to a variety of damaging radical
positions like fascism and communism, even to the extremism of Nazi racial policies (148).
Although this is actually the very jacobinism Coleridge and Dworkin are at pains to prevent,
there is inherent in the process of interpretation an act of romantic imagination which organic
unity, law as integrity or legal economic theory anxiously seek to cover, a truth confronted in the
work of Roberto Unger.
Abandoning his own essentially Romantic position of "internal argument" and "deviationist
doctrine" outlined in The Critical Legal Studies Movement, Unger develops a more
revolutionary approach in What Should Legal Analysis Become, suggesting that law and legal

methodologies are an expression of conservative Capitalist vision and claiming that legal
discourse is nothing more than a rhetoric of rights and order that stops the people from analyzing
society's basic institutional structure (1986, 53ff; 1996). Instead, he suggests a radical alternative
mode of legal analysis in which Judges strip away the rhetorical cover of legal language and
directly confront and negotiate between the competing social interests that legal discourse
represses. Judges should unabashedly become legislators, or rather, recognize fully that they
have been legislators all along. In this way, Unger suggests, legal analysis becomes "social
prophecy"--here is a conception of legal reasoning as an expression of radical imagination to
instigate a supposedly true political justice (1996, 23, 113).
Thus Unger delineates and seeks to confront the very Jacobinism that in reality lies at the heart
of Coleridge's, Dworkin's or any other attempt to regularize textual interpretation. Tracing the
historical source of this concern to the Romantic period, I would suggest that the reason we
continue to couch legal reasoning in the mysticism of precedent is not so much the repression of
capitalist realities as the trauma of revolution. Living in a world after Thomas Paine we have a
need to believe that legal rights have substance, are real and tangible in some way. But as anyone
knows who has been assaulted in a back alley, legal rights never rise to the rescue. They were
themselves created through rhetoric (the power of which is evidenced in Paine's enormous
publication), through an imagination that became true because it was believed, it was "taken up"
and written into legal texts. But the very possibility of a different imagination rising up in
revolution and overthrowing those rights, this society, is that which necessitates the lie of
precedent, of a "context" within which to read and render decisions: for if we allow the
imagination, the interpretation of texts and of the past, to go unchecked, we can find ourselves
under surveillance, victims of extraordinary rendition or detention without trial--we can find
ourselves annihilated from legal and political existence. It is no coincidence that a robust notion
of legal precedent arose only after the American and French Revolutions. Coleridge's own
concern with Jacobinism and its effect on literary and legal interpretation is evidence for the
connection. Therefore, I would read precedent and legal interpretation according to method as a
repression and sublimation of the trauma of the radical imagination and would conclude by
suggesting that, although the revolutionary potential of Unger's legal realism may sound like the
gateway to a Blakean paradise of social justice, it may equally lead to an Orwellian nightmare--it
all depends on whose imagination, whose Neitzschean "will to truth" dominates in the legal,
political, and social sphere.
Notes
(1) All references to Coleridge's works are to S.T. Coleridge Collected Works (1969), hereafter
abbreviated as "Works" followed by volume, sub-volume, and page number.
(2) See, for instance, Coleridge's own characterization of his project in Works (1969,10:11-12.
(3) E.g., expressed in Coleridge (1969, 1:6).
(4) See Capell's Case, 76 Eng. Rep. 134 (K.B. 158 1).
(5) See Coleridge (1969, 8:i:70 n84) for the sources of this idea.

(6) See for example, Coleridge's fear of Jacobinical interpretation in "The Plot Discovered" and
his open letters to Justice William Fletcher regarding his address to the grand jury of County
Wexford, Ireland in the Summer of 1814: (1969, 1:291 and 292; 3:ii:376, 377,393).
Works Cited
Benthan:, Jeremy. 1962. The Works of Jeremy Bentham. 11 vols. Ed. John Bowring. NewYork:
Russell & Russell.
Blackstone, William. 2001. Commentaries on the Laws of England in Four Volumes. 9th ed.
London: Cavendish.
Brewer, John. 1980. "The Wilkites and the Law, (1763-74)." In An Ungavernable People. The
English and their Law in the Seventeenth and Eighteenth Centuries, ed. John Brewer and John
Styles. London: Hutchinson. Campbell, John. 1878. Lives of the Lord Chancellors and keepers
of the Great Seal of England. 10 vols. 7th ed. New York: Cockcroft.
Clark, J.C.D. 1985. English Society 1688-1832. Cambridge: Cambridge University Press.
Coleridge, Samuel Taylor. 1969-S.T. Coleridge Collected Works. 16 vols. Ed. Kathleen Coburn.
Princeton: Princeton University Press. Dworkin, Ronald. 1986. Law's Empire. Cambridge,
Mass.: Harvard University Press. Fogle, Richard Harter. 1962. The Idea of Coleridge's Criticism.
Berkeley, CA: University of California Press.
Greene, T. A. 1985. Verdict According to Conscience. Chicago: University of Chicago Press.
Holdsworth, William. 1956-82. A History of English Law. 17 vols. London: Methuen.
Katz, Stanley N. 1979. "Introduction." In Blackstone's Commentaries on the Laws ofEngland,
ed. Stanley N. Katz. Chicago: University of Chicago Press.
McGann, Jerome. 1983. The Romantic Ideology. Chicago: University of Chicago Press.
Namier, Lewis. 1929. The Structure of Politics at the Accession of George III. 2 vols. London:
Macmillan.
Porter, Roy 1982. English Society in the Eighteenth Century. London: Penguin.
Posner, Richard. 1988. Law and Literature: A Misunderstood Relation. Cambridge, Mass.:
Harvard University Press.
Spring, Eileen. 1988. "The strict settlement: its role in family history." Economic History
Review, 2nd ser. 41.3: 454-60.
Thompson, E.P. 1978. "Eighteenth Century Society: Class Struggle Without Class?" Social

History 3: 144.
Unger, Roberto. 1975. Knowledge and Politics. New York Free Press.--.1986. The Critical. Legal
Studies Movement. Cambridge, Mass: Harvard University Press.
--.1996. What Should Legal Analysis Become? London: Verso.
Mark Barr is an assistant professor at Saint Mary's University in Halifax. Once a practicing
lawyer, he wrote his dissertation on the Romantic rivalry between law and literature, portions of
which have appeared in SiR, SEL and. ERR.
Shakespeare, who alone of all the dramatic poets possessed the power
of combining the profoundest general morality with the wildest states
of passion ... whose moral aphorisms are . . . sparks of fire that
fly off from the iron, ...; our philosophic Shakespeare has not
suffered this debasement of our common nature [the whipping of women]
to ... elude the inevitable tact of his moral sense: and we cannot
doubt that hereafter our Legislature, which has already shewn itself
so friendly to all dispassionate and unfactious attempts to amend the
penal code, will allow us to repeat, by authority, the Poet's
bidding-

A Constitution is the attribute of a state, i.e. of a body politic,

having the principle of its unity within itself, whether by
concentration of its forces, as a constitutional pure Monarchy,
which, however, has hitherto continued to be ens rationale, unknown
in history ... --or--with which we are alone concerned--by equipoise
and interdependency: the lex equilibrii, the principle prescribing
the means and conditions by and under which this balance is to be
established and preserved, being the constitution of the state
(Coleridge 1969, 10:23).

A certain smaller number were to remain at the fountain heads of the

humanities, its cultivating and enlarging the knowledge already
possessed, and in watching over the interests of physical and moral
science; being, likewise, the instructors of such as constituted, or
were to constitute, the remaining more numerous classes of the order.
This latter and far more numerous body were to be distributed
throughout the country, so as not to leave even the smallest integral
part or division without resident guide, guardian, and instructor; the
objects and final intention of the whole order being these--to
preserve the stores, to guard the treasures, of past civilization,
and thus bind the present with the past to perfect and add to the
same, and thus to connect the present with the future; but especially
to diffuse through the whole community, and to every native entitled
to its laws and rights, that quantity of knowledge which was
indispensable both for the understanding of those rights, and the
performance of the duties correspondent. (Coleridge 1969,10:43-44)

... in our law the goodness of a custom depends on it's [sic] having
been used time out of mind; or, in the solemnity of our legal phrase,
time where-of the memory of man runneth not to the contrary. This is

it that gives it it's weight and authority; and of this nature are
the maxims and customs which compose the common law. (Blackstone
2001, 1:67)

For it is an established rule to abide by former precedents, where

the same points come again in litigation; as well to keep the
scales of justice even and steady, and not liable to waver with
every new judge's opinion; as also because the law in that case being
solemnly declared and determined, what before was uncertain, and
perhaps indifferent, is now become a permanent rule, which it is not
in the breast of any subsequent judge to alter or vary from, according
to his private sentiments. (Blackstone 2001, 1:69)

Upon the whole the matter clear it is, the Parliament itself (that
is, the King, the Lords, and Commons) although unanimously
consenting, are not boundless: the Judges of the Realm by the
fundamental Law of England have power to determine which Acts of
Parliament are binding and which void. (Coleridge 1969, 10:97-98)

[This right] has been suffered to fall into abeyance. [Consequently]

the potency of Parliament [is the] highest and uttermost, beyond
which a court of Law looketh not: and within the sphere of the Courts
quicquid Rex cum Parliamento voluit, Fatum sit! [Whatever the King
with Parliament has decided, let it be Fate.]" (Coleridge 1969, 10:97)

Let not your King and Parliament in One,

Much less apart, mistake themselves for that
Which is most worthy to be thought upon:
Nor think they are, essentially, the STATE.
Let them not fancy, that th' Authority
And Priviledges upon them bestown,
Conferr'd are to set up a MAJESTY,
A POWER, or a GLORY of their own!
Bet let them know, 'twas for a deeper life,
Which they but represent-That there's on earth a yet auguster Thing,
Veil'd tho' it be, than Parliament and King. (Coleridge 1969, 10:10)

When the evidence is all gone through on both sides, the judge in
the presence of the parties, the counsel, and all others, sums up
the whole to the jury; omitting all superfluous circumstances,
observing wherein the main question and principle issue lies, stating
what evidence has been given to support it, with such remarks as he
thinks necessary for their direction, and giving them his opinion in
the matters of law arising from that evidence. (Blackstone 2001,
3:375)

the final criterion by which all particular frames of government must

be tried: for only [in the constitution] can we find the great

constructive principles of our representative system (I use the term

in its widest sense, in which the crown itself is included as
representing the unity of the people, the true and primary sense of
the word majesty); those principles, I say, in the light of which it
can alone be ascertained what are excrescences, symptoms of
distemperature and marks of degeneration; and what are native
growths, or changes naturally attendant on the progressive
development of the original germ, symptoms of immaturity perhaps,
but not of disease; or at worst, modifications of the growth by the
defective or faulty, but remediless, or only gradually remediable,
qualities of the soil and surrounding elements. (Coleridge 1969,
10:20)

in the constitution of the human soul a sense, and a regulative

principle, which indeed may be stifled and latent in some, and be
perverted and denaturalized in others, yet is nevertheless universal
in a given state of intellectual and moral culture; which is
independent of local and temporary circumstances. (Fogel 1962,37-38)

I will therefore vote for the Commission upon the simple ground of
preserving the forms of the constitution; and be it remembered that
upon the preservation of the forms depends the substance of the
constitution. (Campbell 1878, 8:405)

Thunder.--A Caldron boiling.

Enter three Witches
First Witch. Thrice the Doctors have been heard,
Second Witch. Thrice the Houses have conferr'd.
Third Witch. Thrice hath Sydney cock'd his chin,
Jenky Cries--Begin, begin.
First Witch.

Round about the caldron go,

In the fell ingredients throw.
Still born foetus, born and bred
In a lawyer's puzzled head,
Hatch'd by 'Metaphysic Scott,'
Boil thou in th' enchanted pot.

All

Double, double toil and trouble;

Fire burn, and caldron bubble.

Second Witch. Skull, that holds the small remains

Of old Camden's addle brains;
Liver of the lily's hue,
Which the Richmond carcass grew;
Tears which, stealing down the cheek
Of the rugged Thurlow, speak;
All the poignant grief he feels
For his sovereign--or the Seals;
For a charm of powerful trouble.
Like a hell-broth, boil and bubble.

All.

Double, double toil and trouble;

Fire burn, and caldron bubble.

Third Witch.

Clippings of Corinthian brass

From the visage of Dundas;
Forg'd address, devis'd by Rose,
Half of Pepper Arden's nose;
Smuggled vote of City thanks,
Promise of insidious Banks;
Add a grain of Rollo's courage,
To inflame the hellish porridge.

First Witch.

Cool it with Lord Kenyon's blood.

Now the charm is firm and good.

All.

Double, double toil and trouble;

Fire burn, and caldron bubble.
Enter Hecate, Queen of the Witches.

Hecate.

Oh! well done! I commend your pains,

And ev'ry one shall share i' th' gains (qtd. In
Campbell 1878, 8: 409).

Sir J. Scott, the present Chancellor, is the only enlightened

expounder of prophecies. He foretold the fate of the East India Bill,
from Revelations; and the condemnation of Horne Tooke and Hardy, from
the celebrated Act of Edward III. His brother, Sir William, if we may
venture to judge from his profound and mysterious elucidatory comments
on ordination and marriage, may be joined in this sacred office.
(Coleridge 1969, 3:i:264)

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