V ICTORIA S ILVER ‘Unequal Proceedings’ and Equitable Interpretations in the Seventeenth Century “The concept of a living being has the same indeterminacy as that of a language.” Wittgenstein, Zettel #326 This is an argument about interpretive ethics - the importance of doing justice to the sense of another person’s expressions - and it begins with a quotation from Judge Learned Hand’s testimony at a Senate subcommittee hearing on “an unusually low state of public morals in 1950-51” (Dillard 225). The approach he recommends to such issues has the weight of experience behind it, coming as it does from so remarkable a jurist, after decades on the Second Circuit of the Federal Appeals Court, during which time he reviewed hundreds of lower court rulings not only for their legitimacy but for their fairness: There is, however, one thing I should like to add which I feel deeply and which is indeed only a corollary: we never shall get along in matters of large public interest, if we proceed by generalizations, indeed, if you insist, by principles, put forward as applicable in all circumstances. Human affairs are too complicated for that; we cannot see far enough ahead so to deal with them. Rather let us say with Cardinal Newman: “One step enough for me.” The consequence is that the only way that public affairs can be successfully managed is by treating each case by itself. … a number of accredited heroes of the past seem to me to have agreed. They have not been anxious to find, and they did not know how to find, abstract principles valid for all situations. They were very largely compromisers. Erasmus was one, for instance; and I always like to think of a man, not so well known, the Marquis of Halifax, George Savile, who wrote the Character of a Trimmer. I should rate Robert Walpole as another; yet he was a maker of the England of the 18th Century. You may think it fantastic of me to include Oliver Cromwell. Let me hasten to say why I do so. He went step to step, and he did not attempt to deal with his material in general terms. Let me give you, as an instance, one utterance of his which has always hung in my mind. It was just before the Battle of Dunbar; he beat the Scots in the end, as you know, after a very tough fight; but he wrote them before the battle, trying to get them to accept a reasonable composition. These were his words: “I beseech ye in the bowels of Christ, think that ye may be mistaken.” I should like to have that written over the portals of every church, every school, and every court house, and, may I say, of every legislative body in the United States. I should like to have every court begin, “I beseech ye in the bowels of Christ, think that we may be mistaken.” (Spirit 229) 38 V ICTORIA S ILVER The affinity of Judge Hand’s approach with a particular strain of seventeenth-century exegetical thought, both religious and civil, extends beyond the reference to Cromwell, who headed, in the words of Sir Charles Firth, “the most tolerant government which had existed in England since the Reformation” (Firth 360); or to Lord Halifax, whose conciliatory Letter to a Dissenter helped persuade the nonconformist community that James II’s specious Declaration of Indulgence presaged no end to the intolerance in which they languished. However posterity chooses to regard the various figures Judge Hand names as “accredited heroes” and “very largely compromisers,” the approach he ascribes to them enjoyed a certain currency, frequently - although by no means exclusively - associated with the principle of equity or epieikeia, Aristotle’s term in the Nicomachean Ethics (1137b). Milton for one shares their approach, as does that English touchstone of reformed theology, William Perkins, who in his little pastoral treatise, Epieikeia (1602), identifies the “moderation of mind” Judge Hand extols as equity, “a rare and excellent virtue whereby men use a true mean and equal moderation in all their affairs and dealings with men, for the maintaining of justice and preservation of peace” (Perkins 481-82). In the locus classicus of English equity jurisprudence, Doctor and Student (1518), Christopher Saint Germain extends the sense of this civil virtue to the ethics of legal judgments, as “a right wiseness that considereth all the particular circumstances of the deed, the which also is tempered with the sweetness of mercy” (Saint Germain 45). That is, equity attends to the just claims of an exceptional or anomalous case over the general categories and formal procedures of the law, when these are simply inapplicable or their application would itself result in injustice. Recalling Aristotle, Saint Germain explains that this principle “is called also by some men epieikeia; the which is no other thing but an exception of the law of God, or the law of reason, from the general rules of the law of men, when they by reason of their generality, would in any particular case judge against the law of God or the law of reason: the which exception is secretly understood in every general rule of every positive law. And so it appeareth, that equity taketh not away the very right, but only that that seemeth to be right by the general words of the law.” (Saint Germain 45-46) In doing so, the practice of equity acknowledges the irreducible complexity of human affairs, whose eventualities no universal rule can fully anticipate or represent (Ethics 1137b), owing not least to the unpredictability of human choice which, as Aristotle argues, renders this species of knowledge particular and so indefinite (Ethics 1112a-b). The law is as fallible as its makers; and equity intervenes to rectify the application of the law when its necessary generality renders a decision deficient in justice - that is, when a discrepancy arises between what the law ordains and what the circumstances of a given ‘ Unequal Proceedings’ and Equitable Interpretations … 39 case rightly demand. Moreover, as extraordinary justice, equity’s determinations are confined to the exceptional instance: originally they constituted a grace, not a precedent, since precedent inexorably inclines in its use to a general rule. As Judge Hand observes of commissions, courts and humanity as a whole: “Like all of us - and that is constantly the fault charged, and properly charged, against courts - after they have proceeded a while they get their own sets of precedents, and precedents save ‘the intolerable labor of thought,’ and they fall into grooves, just as the judges do” (Spirit 241). As I remarked, Milton not only shares but consistently maintains the force of this principle in “matters of large public interest,” most famously in the Areopagitica. However, perhaps the most illustrious of Milton’s present exponents, Stanley Fish, does not, who in his reading of that tract - not to mention seventeenth-century literature as a whole - pays lip service at best to the implications of such complexity, while (gleefully) controverting them by his own professional assumptions and approach. That charge is nothing new to Fish, who handles it with his usual practiced assurance; but I would like to suggest that the consequences of his reading are more than interpretive, more than academic, and in a manner seventeenth-century writers of Judge Hand’s equitable stripe would greet with concern. On that head, Aristotle remarks that “This is also the reason why not everything is guided by law,” since “on some matters legislation is impossible, and so a decree is needed”: “For the standard applied to what is indefinite is itself indefinite, as the lead standard is in Lesbian building, where it is not fixed, but adapts itself to the shape of the stone; likewise, a decree is adapted to fit its objects. (Ethics 1137b) If “Lesbian rule” came to signify expedience in the worse, interested sense, Aristotle’s own usage is not derogatory: rather, he has in mind a certain circumstantial order of judgment or “comprehension,” associated with the capacity to learn things, which he calls “consideration” and links to sungnome or pardon (Ethics 1143a; Irwin 418). That is because the equitable person “is not an exact stickler for justice in the bad way” (Ethics 1137b), but as Terence Irwin observes, “will often find something pardonable in cases where the inflexible application of a rule that is only [usually] true would result in mistaken blame” (Irwin 418). In Irwin’s precise phrase, Aristotle conceives the ‘usual’ (hos epi to polu) as “a universal judgement that is true for the most of the cases it applies to, but not for all,” which in law takes the form of a paradigmatic sense inferred and declared as such, such as precedent (a judgment used to guide future decisions in like cases) or presumption (a supposition or prima facie significance used to characterize like facts in like cases). Both precedent and presumption are in this way forensic short-cuts which substitute for “the intolerable labor of thought,” with precedent the form of doing justice in matters of law, and presumption the form of proof in matters of fact. And both argue 40 V ICTORIA S ILVER a likeness or analogy between previous decisions and the issues of law and fact raised by an individual case - Bracton’s reasoning a similibus ad similia, or like matters decided in like fashion (Bracton 2: 21). The problem to which Learned Hand points is that, whether out of convenience or conviction, we tend to treat the usual as the necessary and true - to mistake the form of justice for the actuality, and ascribe definitiveness, conclusiveness, to what is merely received. By their simple institution, then, precedent and presumption can become an obstacle, not an auxiliary to justice, inasmuch as their formulations are used to impose false necessities on inference. This is certainly Hobbes’ objection to both: “all the Sentences of precedent Judges that have ever been, cannot all together make a law contrary to natural Equity: Nor any examples of former Judges, can warrant an unreasonable Sentence, or discharge the present Judge of the trouble of studying what is Equity (in the case he is to Judge,) from the principles of his own naturall reason” (Hobbes 324). More recently, James Thayer stipulates in the case of presumption that, while it “accomplishes for the moment at any rate, the work of reasoning and evidence, it should be remarked … that neither this result, nor the rule which requires it, constitutes, in itself either evidence or reasoning” (Thayer 337). The exercise of consideration in Aristotle’s sense is directly opposed to such legal formulae and the moral complacency which admits them as truth; for the equitable person will extenuate the gravity of an offense by inquiring into all its particular circumstances, and will do so against received notions and procedures where these fail to do justice. As Irwin notes, not just facts but moral valuations lie for Aristotle in the perception of particulars, insofar as “the trained judgement of an intelligent person will be able to identity the perceptual features that are morally relevant, and will realize that they are” (Irwin 419). Since I cannot improve on Irwin’s examples, I will quote them - “‘This isn’t harmless teasing, but wanton cruelty’, or ‘Giving him the book would be a kind thing to do’” (Irwin 419) - from which it should be clear that Learned Hand’s insistence on consideration and compromise does not make him a libertine or antinomian in the disguise of a judge. On the contrary, what he says assumes the settled parameters of law, within which he offers an ethical approach to its understanding and application: “treating each case by itself,” going “step by step” and eschewing “generalizations.” It is a maxim of equity that aequitatis sequitur legem, “equity follows the law” (Story 1: 60) ; yet, as captured by Judge Hand, equity is more than a set of precepts. Just before he makes these comments to the subcommittee, Hand discounts Bentham’s notion, if not his polemical gesture, of a utilitarian calculus of pain and pleasure (Spirit 228). For as Aristotle observes, the formal rationality that obtains in mathematics is different from the deliberative intelligence of phronesis or prudence, the faculty required for effectively ‘ Unequal Proceedings’ and Equitable Interpretations … 41 negotiating the indefinite realm of ethics and politics (Ethics 1142a). Learned Hand observes elsewhere to the same effect: “We know well that an objective calculus of human values is impossible, and if it were available, would be so thin and speculative that men would not accept it” (Spirit 71). Whether we do indeed know this remains to be seen, since there are still professional minds engaged in the project of such a calculus, whose efforts do not communicate beyond their own discipline for the reason Judge Hand mentions: they operate in the experiential void of the office and the lab, not in the vital, entrancing, desirable, and moral world of human perception and action. Such a project clearly has no appeal for the judge, who offers in its place a disposition or mentality exemplified by the speech and conduct of historical persons, which includes a concern for the human viability of legislation and precedent; a resistance to legal universalism, that is, “abstract principles valid for all situations”; a reciprocal insistence on particular, delimited and methodical answers as against sweeping solutions to such problems as may arise; and as a consequence of this scepticism about the generalized or categorical, a willingness to compromise by focusing on the available grounds of agreement as against the achievement of complete unanimity. There is yet a further aspect of equity that Hand mentions later on in his testimony, which at once motivates and undermines the very concept of an objective calculus, whose presumption to certainty he implicitly castigates here: namely, the legal actuality that “We have to deal with words, and there is nothing more fluid than words” (Spirit 238). It is not that he deplores this egregious fact of civic life: indeed, he celebrates the question - “What are the meanings of words? ” - as “the great issue of interpretation - that fascinating issue which has made 40 years of doing it still to me not altogether dull” (Spirit 245-46). This question is equity’s meat, which “as contradistinguished from mere law, or strictum jus, is applied to the interpretation and limitation of the words of positive or written laws; by construing them, not according to the letter, but according to the reason and spirit of them,” as Joseph Story explains (Story 1: 6): The general words of a law may embrace all cases; and yet it may be clear that all could not have been intentionally embraced, for if they were, the obvious objects of the legislation might or would be defeated. So words of a doubtful import may be used in a law, or words susceptible of a more enlarged or of a more restricted meaning, or of two meanings, equally appropriate. The question in all such cases must be, in what sense the words are designed to be used; and it is the part of a judge to look to the objects of the Legislature, and to give such a construction to the words as will best further those objects. This is an exercise of the power of equitable interpretation. (Story 1: 7) It had been Judge Hand’s job to do just that, one that he believes belongs to the nation’s courts, and not to ad hoc commissions, both of whose practical 42 V ICTORIA S ILVER limits he knows all too well: “I think we sometimes can deceive ourselves into supposing that administration is just a question of getting a man and having him learn the facts and following a perfectly definite rule” (Spirit 238). Experience has taught him that no law is self-evident in its application, but like Aristotle’s Lesbian rule, requires us to adapt its terms to the circumstances which obtain in each case - an interpretive predicament that is naturally as fluid as the meanings of the words themselves. The consequence is a superabundance of official language and its ceaseless interpretation, both of which are conditions endemic to government and therefore a civil exigency, but no unrelieved evil to Learned Hand, because the regulatory language of law also serves as a bulwark against the arbitrary exercise of political power: “The result of statutes and regulations is a wilderness of words, although indeed that is inevitable, since it is the only protection of the individual against the unlimited discretion of small officials” (Spirit 247). Any attempt by government to dictate the daily choices of individuals is totalitarianism, tyranny at its most officious, at once intimate and insidious. As the general parameters of law must constrain the discretionary power of equity, so the manifold interpretation of the law hems in and restricts the arbitrary power of government over the governed. But the humility and scepticism informing Hand’s approach to law - “think that we may be mistaken” - is one usually lacking in those who propose to achieve an ideal polity or social harmony by positively legislating human conduct. Such legislators, as Judge Hand comments, are inclined to suspect others’ capacity for right action but not their own; thus he adjures the Senators to “remember that we are all inferior creatures, we are humans and our imperfections will come out in one way or another” (Spirit 231). Again, both the law and its administrators are finite and fallible; and this is the force of the equitable change Hand effects in Cromwell’s language, replacing the second person pronoun “you” with “we,” since “We cannot expect more of other people than we have ourselves” (Spirit 231). It makes the same point with which he concludes his testimony, in rejecting the truism that “the only teaching of history is that history does not teach anything” (Spirit 249). On the contrary, he argues, “history does give us education in this sense: it teaches us skepticism about any easy explanations”; for “if we are going to get along, it can only be by the growth of skepticism; and skepticism comes best from acquaintance with the past” (Spirit 249-50). In this spirit, Learned Hand quotes from a document that was three hundred years old at the time of the hearings - Cromwell’s letter of 31 August 1650, addressed to the General Assembly of the Kirk of Scotland, and in lieu of this body, to their commissioners: “I beseech you, in the bowels of Christ, think it possible you may be mistaken” (Cromwell 2: 96). It is also in this spirit that I raise the question of seventeenth-century understandings of the relationship between law ‘ Unequal Proceedings’ and Equitable Interpretations … 43 and equity as they apply to the constructions placed on authoritative texts, which are used to justify an intent other than the one they express. For the activity of interpretation can be more ostensible than real, and its results worthy of our scepticism. As Judge Hand anticipates, the inclusion of Cromwell in his list of worthies may seem “fantastic,” especially as the letter to which he refers is consequent upon the New Model Army’s preemptive invasion of Scotland, precipitated by the Kirk’s embrace of the teenage Charles II, who armored with an equal cynicism, had duly assimilated himself to the Solemn League and Covenant. The New Model had already suffered in 1648 from what it regarded as Presbyterian duplicity, when at the connivance of likeminded parliamentarians, the Scots joined with Charles I to invade England. So the commonwealth government felt justified in discounting the oath all had sworn to the Covenant at the outset of the English civil war; in its eyes, the Scots had broken their sworn word, and released the English from theirs. Command fell to Cromwell, whose distinctive voice S. R. Gardiner detects in the parliamentary proclamation of war against the Scots: “‘We cannot but think,’ Parliament was asked to say in justification of the proposed invasion, ‘that an interest of dominion and profit under a pretense of presbytery and the Covenant, is by these men of more value and esteem than the peace and love of the Gospel, to which all that may be called discipline or government in the Church is, and ought to be subordinate; and for which the least violation of the love and peace before mentioned ought not to be’” (Gardiner 1: 260). For Cromwell’s letter to the Kirk contains these very ideas, questioning whether the Scots were moved by the venal motive to aggrandize themselves at the expense of peace between the two nations, and to the inequitable end of imposing a Presbyterian theocracy on England. But he goes still further, arguing that the Kirk’s dogmatism exacts the same price from its own people, violating the “peace and love of the Gospel” by denying the Scots that liberty of conscience exercised by the New Model, and which the Protectorate will subsequently seek to secure for its own Protestant citizens. Although Cromwell declares that “The Lord hath not hid His face from us since our approach so near unto you,” in the shape of those special providences which the general regularly invokes (and for which he is as regularly ridiculed), his letter challenges the leaders of the Kirk in the dogmatic construction they place on the words of scripture and so their religious claims, as well as the wisdom of their civil policies (Cromwell 2: 96). That challenge may seem hypocritical, given the pervasive pietism of the New Model; but unlike his furious hosts, and despite his ceaseless scanning of the horizon for intimations of God’s will, Cromwell recognizes the insuperable constraint placed on any such inference by the very fact of conflict with those 44 V ICTORIA S ILVER whom he views as his co-religionists. Were the signs of divine sanction so unequivocal at this juncture - what with Leslie holding his position while bad weather forces Cromwell to retreat to his supplies, confirming in the Kirk’s eyes that God fights for the Scots - no such conflict could occur, nor would the English have won at Dunbar against more than twice their own number (Gardiner 1: 282). But the significance things have for us is hostage to the exigencies of circumstance. So although he never desists from reading the signs of the times - a conceptual habitus common to most human beings in that age and this - it seems to me, especially as the Protectorate wore on and experience taught him still greater scepticism, that while he may infer from events, he is too shrewd to conclude from them. Cromwell does not suppose that theology wins battles, nor does the Council of State that employs, funds, arms and levies troops for him. He makes no decision on the grounds of any sign’s putatively supernatural force, but waits on the hand of providence, which is to say that he suspends judgment until the outcome is achieved and known in the ordinary way. And in this case, the actual as against predicted outcome once again proves the functional superiority of the New Model to its opponents - for all that it was “a poor, shattered, hungry, discouraged army” - as it does the skilled tenacity of Cromwell’s own generalship (Gardiner 1: 282). Inevitably, there are echoes of Agincourt in the accounts of Dunbar, where the Scots lost thirteen thousand men (ten thousand of them prisoners) to the English, two hundred colors, enormous amounts of artillery, baggage and arms, while according to Cromwell, the invaders’ own losses amounted only to about twenty men (Gardiner 1: 295). But there is also a distinctive theopathic twist to the battle, which here substitutes Presbyterian dogmatism for French complacency as the underlying cause of their foe’s defeat. For Leslie’s army, possessed of an able, experienced commander and vastly greater numbers, was unfortunately “split asunder in heart and mind by the wedge of faction,” as enforced by the Kirk’s Committee of Purging, a situation Gardiner describes with no little irony: “Wherever the veil is lifted the Scottish army is seen to be cleft asunder by the spirit of party, the clergy and the members of the Committee of Estates who sympathised with them distrusting the more worldly-minded soldiers as Malignants and Engagers; whilst the more worldly-minded soldiers writhed under the yoke of the fanatics and, bearing in mind the interviews of the strictly covenanting officers with the English commanders, even suspected them of a settled intention to betray the army to the enemy” (Gardiner 1: 283). This is reading signs with a vengeance, nor did the Scots spare their actual enemy. Thus Cromwell complains to the Kirk that “by your hard and subtle words, you have begotten prejudice in those who do too much, in matters of conscience - wherein every soul is to answer for itself to God, - depend upon you. So ‘ Unequal Proceedings’ and Equitable Interpretations … 45 that some have already followed you, to the breathing out of their souls: ‘and’ others continue still in the same way wherein they are led by you, - we fear, to their own ruin.” (Cromwell 2: 95) By the phrase, “matters of conscience,” Cromwell alludes to that Pauline liberty of religious understanding and choice to which Luther gave ardent life in his Freedom of a Christian (1520), and which in this context evokes doctrinal matters not judged dogmatic but left to the judgment of each believer, as inessential to salvation and so susceptible of latitude in individual opinion and practice - adiaphora or “things indifferent” in the contemporary phrase. It is a doctrinal restraint upon the expansion of dogma that, according to Maurice Ashley, defined for Cromwell the intent of his own civil policies: “in all his political compromises and even during the period of Puritan military government which he imposed, Oliver Cromwell never departed from the principle that he held dear, that of ‘liberty of conscience’” (Ashley 105): “Soon after the battle of Dunbar, arguing with those who said that if you gave people liberty freely to preach the Gospel of Jesus Christ error might step in. Cromwell answered: ‘Your pretended fear lest error might step in is like the man who would keep all wine out of the country lest men should be drunk.’ And in a speech to Parliament in 1654, he said: ‘Notions will hurt none but them that have them.’ In these two sentences is the essence of the modern ideas of toleration; can we think of any other ruler of his time who would have talked to parliament or to his people in that sort of way? ” (Ashley 105) Indeed, Firth remarks that “The originality of the Protector’s ecclesiastical policy lay in this attempt to combine the two principles of toleration and comprehension,” a tolerance which “was not the result of scepticism or indifference, but arose from respect for the consciousness of others” (Firth 361-62). So the letter Cromwell addresses to “them as fear the Lord” charges the Kirk with exercising and aggravating by “hard and subtle words” a doctrinal rigor that already intrudes upon liberty of conscience, enforced by “those who do too much” in the way of imposing this orthodoxy, to the extent of precluding a political rapprochement with the more ecumenical English, who are represented “to the people as if we were monsters of the world,” an “Army of Sectaries and Blasphemers” (Carlyle 2: 89). Cromwell accordingly points out that no debate was admitted within the Scots camp (“you can find it in your hearts to conceal from your own people the Papers we have sent you, who might thereby see the bowels of our affections to them”), while the English have allowed the Kirk freely to distribute its justifications among the members of the New Model (Cromwell 2: 95): “Send as many of your Papers as you please amongst our; they have a free passage. I fear them not. What is of God in them, would it might be embraced and received! ” (Cromwell 2: 95) And finally, he is moved to the 46 V ICTORIA S ILVER reproach and plea that Judge Hand would have engraved on every public building but especially every court in the United States, while Cromwell himself cites in a similar spirit Isaiah 28: 5-15, where the prophet condemns the false pride and immoderation of Jerusalem’s religious and civil leaders, who collude with Egypt on the eve of the Assyrian invasion: Your own guilt is too much for you to bear: bring not therefore upon yourselves the blood of innocent men, - deceived with pretences of King and Covenant; from whose eyes you hide a better knowledge! I am persuaded that divers of you, who lead the People, have laboured to build yourselves in these things; wherein you have censured others, and establish yourself “upon the word of God.” Is it therefore infallibly agreeable to the Word of God all that you say? I beseech you, in the bowels of Christ, think it possible you may be mistaken. Precept may be upon precept, line may be upon line, and yet the Word of the Lord may be to some a Word of Judgment; that they may fall backward, and be broken and be snared and be taken! There may be a spiritual fulness, which the World may call drunkenness; as in the second chapter of the Acts. There may be, as well, a carnal confidence upon misunderstood and misapplied precepts, which may be called spiritual drunkenness. There may be a Covenant with Death and Hell! I will not say yours was so. But judge if such things have a politic aim: To avoid the overflowing scourge; or, To accomplish worldly interests? And if therein we have confederated with wicked and carnal men, have respect for them, or otherwise ‘have’ drawn them in to associate with us, Whether this be a Covenant of God, and spiritual? Bethink yourselves; we hope we do. (Cromwell 2: 96) Isaiah 28 pervades Cromwell’s criticism of the Scots, in the very implication that they have dealt corruptly with the Commonwealth by dealing with Charles II, once again making themselves a by-word for political expedience - Marvell’s Pict who “no shelter now shall find / Within his parti-coloured mind” (“An Horatian Ode” 55-58). For the “Covenant with Death and Hell” to which Cromwell alludes is that with which the prophet reproaches Israel’s secular leaders, who fondly imagine they can play the great powers of Assyria and Egypt off against each other, even as the Scots would do with royalists and commonwealth-men. So Isaiah has the apostate governors of Jerusalem (“you scoffers”), who have repudiated the Lord’s guidance, expose their own inevitably faithless strategies (Is.28: 14): “‘We have made with a covenant with death, / and with Sheol we have an agreement; / when the overwhelming scourge passes through / it will not come to us; / for we have made lies our refuge, / and in falsehood we have taken shelter’” (Is. 28: 15). But unlike his opponents, Cromwell conspicuously refrains from lambasting in Isaiah’s terms the Solemn League and Covenant, not to mention the motives of its promulgators and adherents. Rather, he chooses to repudiate the scriptural reading that would identify his own army - caricatured as so many enthusiasts and libertines, false prophets and antichrists - ‘ Unequal Proceedings’ and Equitable Interpretations … 47 with Isaiah’s corrupt priest and prophet, who “stagger with strong drink; / they err in vision, / they stumble in giving judgment” (Is. 28: 7). But as Cromwell remarks, scripture talks about more than one kind of drunkenness. For Isaiah’s religious rulers do not reel and sway with the “spiritual fulness,” the ecstatic power of revelation, as did the apostles at Pentacost who, like the New Model, were called drunkards and judged licentious. Rather, in Cromwell’s account, the “spiritual drunkenness” Isaiah pictures, which covers the altars and holy places with vomit and filth, manifests the opposite condition: a religion that has been evacuated of moral and spiritual meaning, worshipping the mere letter of the law and so devolving upon an empty, ineffectual iteration of words, and only words. In support of that contention, Cromwell quotes nearly all of Isaiah 28: 13: “the word of the LORD will be to them / precept upon precept, precept upon precept, / line upon line, line upon line, / here a little, there a little; / that they may go, and fall backward, / and be broken, and snared, and taken.” By this language, the prophet evokes a mechanical exegesis - not altogether unlike that Judge Hand calls “the dictionary school” of legal interpretation (Spirit 107) - which divides up God’s expressions into arbitrary, trivial and monotonous measures which, no longer instinct with divine meaning and power, are repeated but not understood, serving only to reproduce in the people the religious void, fragmentation and impotency of their leaders. Then, in Cromwell’s interpolation, the scriptural word can become a “Word of Judgment” upon its exponents, who commit the very faithlessness against which they inveigh, “a carnal confidence upon misunderstood and misapplied precepts.” In such a way, he implies, the Kirk and its commissioners have abused their authority to pervert the perception of the Scottish people, who are “deceived with pretences of King and Covenant,” while simultaneously denied the “better knowledge” of English intentions, clearly and amply evidenced by the New Model’s public declarations. For, he observes, “divers of you … have laboured to build yourselves in these things, wherein you have censured others, and established yourselves ‘upon the Word of God,’” which is to pervert religious things to “a politic aim” and “worldly interests.” Yet once again, Cromwell does not apply Isaiah’s picture of Judaic corruption directly or necessarily to the Kirk; for he has cast the whole of the thirteenth verse in the conditional or subjunctive mood of its final lines (with “may” displacing Isaiah’s unqualified assertion), framing it as a warning that the Kirk must beware the consequences of dogmatism - of laying claim to truth and censoring others as if it had the ear of God. So with a scepticism and self-suspicion like that to which he exhorts assembly and commissioners, he insistently inquires of them: “Is it therefore infallibly agreeable to the Word of God, all that you say? I beseech you, in the bowels 48 V ICTORIA S ILVER of Christ, think it possible you may be mistaken.” He concludes his argument with the equitable adjuration, “Bethink yourselves; we hope we do,” and his adieu is charity itself: “The Lord give you and us understanding to do that which is well-pleasing in His sight” (Cromwell 2: 96). On this head, Learned Hand argues that justice consists in the ability of the legal profession to make “that most difficult of adjustments,” without which the practice of law becomes “a barren scholasticism” - namely, “an understanding of and sympathy with the purposes and ideals of those parts of the common society whose interests are discordant with its own” (Spirit 17): Yet nothing can be more certain than that its authority as interpreter of customary law must in the end depend upon its power to learn precisely that adaptation. As mediator it must grasp from within the meaning of each phrase of social will; it must divine the form of what lies confused and unexpressed and must bring to light the substance of what is half surmised. To adjust and to compromise, to balance and to value, one must first of all learn to know, not from the outside, but as the will knows. … Moreover, as we are coming now to learn, no human purpose possesses itself so completely in advance as to admit of final definition. Life overflows its moulds and the will outstrips its own universals. Men cannot know their own meaning till the variety of its manifestations is disclosed in its final impacts, and the full content of no design is grasped till it has got beyond its general formulation and become differentiated in its last incidence. (Spirit 17) A judge not only interprets the words of the law but also its motives, circumstances, implications, precedents, and what is more, its capacity to meet the needs of dissenting constituencies and new emergencies. This is equitable interpretation; and the best interpreter is one who does not read superficially, according to the letter alone, but who fully imagines the occasion that brought a given statute or decision into being. Such a reader will also be the law’s best adjudicator; for having learned how to negotiate between all the criteria we ordinarily and almost unconsciously use to make sense of human expressions, that person will bring this complex understanding to the equally manifold and often unanticipated contingencies which the law is asked to meet. For its actual significance is not general but particular to every occasion of judgment, when the law is made vividly intelligible, not to mention effectual by its application. The issue of the law’s public intelligibility is crucial for all who are called to the bar, whether lawyers or judiciary, but still more so for those who have chosen to subject themselves to its governance, the people who must live it out. For despite the vicissitudes of interpretation, legal language is not algebra or esoterica, nor would Learned Hand have it become such: “Much might be gained in precision, for example, if we could use a technical terminology like that of science, whose conquests depend so largely upon its coined symbols, free from the emotional connotations of colloquial speech. ‘ Unequal Proceedings’ and Equitable Interpretations … 49 This can not be. There is something monstrous in commands couched in invented and unfamiliar language; an alien master is the worst of all.” (Spirit 56) Aristotle also argues that the pursuit of mathematical accuracy or precision is not only misguided in the indefinite realm of human affairs (since the aptitude of a decision depends on outcomes as yet unknown and therefore subject to deliberation), but potentially immoral insofar as it is programmatically oblivious to those particular aspects of meaning on which moral valuations depend (Ethics 1142a). Indeed, Hand’s last remark makes newly apposite Cromwell’s comment about the “pretended fear” that doctrinal error will prove a religious and moral contagion, thus justifying intolerance and the forcible regulation of opinion. A tolerationist himself, John Milton shares Cromwell’s disdain for such civil precisionism, and in the tract where he memorably argues the separation of church and state, A Treatise of Civil Power (1659), observes in almost the same words that “as a preface to force, it is the usual pretence, That although tender consciences shall be tolerated, yet scandals thereby given shall not be unpunished, prophane and licentious men shall not be encourag’d to neglect the performance of religious and holy duties by color of any law giving libertie to tender consciences” (Milton 7: 267). And like Cromwell, he dismisses the repressive invocation of scandal, equitably insisting that “to heal one conscience we must not wound another” (Milton 7: 267). Learned Hand also criticizes this conservative tendency to link the exertion of such constraints on interpretation and opinion, especially the law’s strict construction, with the rigorous exercise of judicial integrity - equating obedience to the letter with obedience to the right - as if admitting the irreducible contingency of interpreting and applying the words of the law were the slipperly slope to judicial license and unwarranted activism. Yet such judges will jettison their literalist scruples with all the licentious verve imputed to their liberal colleagues when the conservation of the letter would interfere with the conversation of the status quo. As Hand observes: “Ulpian might take as the constitutive principle of justice the steady and eternal purpose to give each man his own, but no a priori concepts can determine in advance what each man’s own shall be, and the form of justice will be without content till we fill it with the ardor of life” (Spirit 15). So it is interesting to consider how that equation of strictum jus with rigorous thought and interpretive integrity, which contends that there can be only one precedent and right meaning to any human expression or predicament, is not confined to the arbiters of law, whether religious or civil. It extends to literary criticism, where the notional superiority of the critic’s presumptions authorizes interpretion no less expediently to substitute its own meanings for the intent of any expression not of its making. Here is a sentence from Milton’s Areopagitica (1644), addressed to the predominantly 50 V ICTORIA S ILVER Presbyterian Long Parliament, which had seen fit to reinstate the crown’s practice of licensing under its own ordination in 1643, owing to “the great late abuses and frequent disorders in Printing many false, forged, scandalous, seditious, libellous, and unlicensed Papers, Pamphlets, and Books to the great defamation of Religion and Government” (Firth and Rait 1: 184). Encouraged by the Long Parliament’s campaign against religious dissent and other acts of public immorality, the Stationers’ Company had complained about the publication of unlicensed tracts at the expense of its monopoly, mentioning Milton and one other by name, which apparently led the Lords to call for his examination by a judge, with members of the Stationers’ Company present as witnesses (Parker 1: 264-65). We know nothing further, except that Milton was at what he must have felt to be fragile liberty in 1644, at the time that he composed this tract. The sentence in question expands a comparison Milton makes of truth to the new Proteus: “give her but room,” he says, “& do not bind her when she sleeps, for then she speaks not true, as the old Proteus did, who spake oracles only when he was caught & bound, but then rather she turns herself into all shapes, except her own, and perhaps tunes her voice according to the time, as Michaiah did before Ahab, untill she be adjur’d into her own likenes” (Milton 2: 563). The bondage of Proteus to which Milton alludes is of course censorship, a practice with its own incoherence since it assumes the perfect transparency of truth in order to preserve us from truth’s perfect dissimulation. To that end, the ordinance declares that no “Book, Pamphlet, paper, nor part of any such Book, Pamphlet, or paper shall from henceforth be printed, bound, stitched or put to sale by any person or persons whatsoever, unless the same be first approved of and licensed under the hands of such a person or persons as both, or either of the said Houses shall appoint for the licensing of the same, and entred in the Register Book of the Company of Stationers, according to ancient custom, and the Printer thereof to put his name thereto” (Firth and Rait 1: 185). In response, Milton argues (as he always does in my experience) that any undue constraint placed on human expression will generate only arbitrary or opportunistic meanings, still more remote from that godlike truth - one, essential, immutable and absolute - which humanity likes to envision for itself. This vision of a transcendent truth he seems to share, at least until the next sentence when Milton proves himself every censor’s worst nightmare: “Yet is it not impossible that she may have more shapes than one” (Milton 2: 563). Double negatives are a favorite device of his, whose initial ambiguity here would seem to suggest that truth may have more shapes than one in Milton’s own statement. The reader’s dilemma could be put this way: do we read the phrase as “yet isn’t it impossible,” or as “yet is it not impossible”? Given the ‘ Unequal Proceedings’ and Equitable Interpretations … 51 initial analogy of the protean to the false, it could be argued that the sentence rejects the multiplicity of truth, which (to complete the comparison where Milton does not) would happily unify if it were not forcibly and inexpertly regulated by the parliamentary censors. Such a reading would certainly confirm one prevalent idea of the Areopagitica, namely, as an Enlightenment polemic in which human reason, given the rightful liberty of its own natural estate, summarily banishes the false gods of custom and prejudice. But Milton is not describing truth per se, which for him has the status of a religious postulate, not a human actuality. Instead, his subject is truth’s expressions in this world - the copious, proliferating ways in which we as individuals make some enduring sense of our experience, whose figure is a truth-telling yet unconstrained Proteus. So it is fitting that Milton’s peculiar kind of truth would intervene to save the sense of Milton’s statement, as he asks, “What else is all that rank of things indifferent, wherein Truth may be on this side, or on the other, without being unlike her self? ” (Milton 2: 563). As I mentioned above, the phrase “things indifferent” refers to the theological principle granting believers an individual latitude of observance in matters deemed inessential to salvation, a latitude that the image of a manifold truth handily affirms and extends. For in a deft show of expressive liberty, Milton now uses that protean figure to an apparently opposed purpose, which is to argue that we never apprehend truth as single and immutable anyway - that it is something more often emergent than a priori, contingent than axiomatic, occasioned by the particular circumstances of each person’s understanding and choice. Consequently, we must bring to our experience a temperance not only of body but of mind, that instrumental scepticism about ourselves, not others, which Judge Hand advocates, and which resists the impulse arbitrarily to resolve the natural ambiguity of our expressions by excluding other viable meanings, and prematurely to assert the identity of truth in a world where it may have more shapes than one - as many, in other words, as there are persons who honestly pursue it. This strategy typifies the Areopagitica, whose argument is figural, associative, ramifying - in other words, exemplary of that manifold possibility of significance that Milton has just evoked, whose most considerable image is the building of the Lord’s temple: Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making. Under these fantastic terrors of sect and schism, we wrong the earnest and zealous thirst after knowledge and understanding, which God hath stirr’d up in this City. What some lament of, we rather should rejoyce at, should rather praise this pious forwardnes among men, to reassume the ill deputed care of their Religion into their own hands again. A little generous prudence, a little forbearance of one another, and som grain of charity might win all these diligences to 52 V ICTORIA S ILVER joyn, and unite into one generall and brotherly search after Truth; could we but forgoe this Prelaticall tradition of crowding free consciences and Christian liberties into canons and precepts of men. … Yet these are the men cried out against for schismaticks and sectaries; as if, while the Temple of the Lord was building, some cutting, some squaring the marble, others hewing the cedars, there should be a sort of irrationall men who could not consider there must be many schisms and many dissections made in the quarry and in the timber, ere the house of God can be built. And when every stone is laid artfully together, it cannot be united into a continuity, it can but be contiguous in this world; neither can every peece of the building be of one form; nay rather the perfection consists in this, that out of many moderat varieties and brotherly dissimilitudes that are not vastly disproportionall arises the goodly and the gracefull symmetry that commends the whole pile and structure. (Milton 2: 554-55) As he did earlier, Milton indicts the “irrational” demand for a single, definite and transparent or immediate knowledge, which does nothing short of traduce human being, whose finite existence does not permit such seamless unity. He calls the demand irrational because it extravagantly misrepresents the ordinary conditions of human understanding, which are not “continuous” but “continguous” in this life - that is to say, not identical but manifold, not transcendent but contingent, not innate but artistic in the Aristotelian sense. In this life, Milton argues, we can’t simply assert the unity of human knowledge, but must gradually fashion its coherence out of our abundant yet disparate experience. By contrast, censorship’s implicit requirement of correctness imagines an automatic because innate, ideal or axiomatic truth, leaping fully-formed from the head of man or god, or at least from the minds of those who claim to uphold it, but who actually enforce what Milton calls the “canons and precepts of men.” This is that “barren scholasticism” to which Isaiah, Cromwell and Judge Hand all take exception, and to whose mechanical rationalism Milton opposes the humane and reasonable values of prudence, forbearance and charity, which allow individuals to join together without prejudice in a community of knowledge - the concord captured by Milton’s figure of the Lord’s temple. For sociability is the instinctive need on which all politics depends, to which law conduces by negotiating between that profound human imperative and the no less insistent and profound consideration of human individuality. In doing so, law must itself be made reasonable, and that entails the acknowledgment of its own limitations: thus Milton exhorts parliament, as Cromwell does the Kirk, to “think it possible you may be mistaken.” This is the force of Milton’s memorable observation that “Good and evill we know in the field of this World grow up together almost inseparably; and the knowledge of good is so involv’d and interwoven with the knowledge of evill, and in so many cunning resemblances hardly to be discern’d, that ‘ Unequal Proceedings’ and Equitable Interpretations … 53 those confused seeds which were impos’d on Psyche as an incessant labour to cull out, and sort asunder, were not more intermix’t” (Milton 2: 514): It was from out the rinde of one apple tasted, that the knowledge of good and evill as two twins cleaving together leapt forth into the World. And perhaps this is that doom which Adam fell into of knowing good and evill, that is to say of knowing good by evill. As therefore the state of man now is; what wisdome can there be to choose, what continence to forbeare without the knowledge of evill? He that can apprehend and consider vice with all her baits and seeming pleasures, and yet abstain, and yet distinguish, and yet prefer that which is truly better, he is the true warfaring Christian. (Milton 2: 514-15) From this twinned myth of the fall as humanity’s entry into the historical predicament of moral discernment and decision, we might reasonably infer that rationality in the Areopagitica is neither ideal nor mechanical, but practical, flexible, and eloquently so; “for reason is but choosing” (Milton 2: 527), and thus involves not one conceptual act but a whole train - apprehending, considering, abstaining, distinguishing and preferring. It is something we do in the world as against something we possess of ourselves - a perpetual activity, not a property of human being - which is why Milton insists on ideas first having public room in which to maneuver and contend before judgment is given on their value, even as this latitude of inquiry can be no more absolute than any other human thing, given that freedom itself is only a value within community, not without it. Accordingly, he makes the limits of both liberty and authority those voluntary constraints on human thought and action which Milton has advocated at least since 1634, when he wrote Comus - namely, temperance and charity or moderation and mercy, which are the equitable principles enabling us to fashion and sustain a common life. And here Milton does not scruple to speak of perfection; but the perfection he evokes is moral and civil, not logical or metaphysical, having to do with how we ought to achieve and conduct those shared understandings we call knowledge. Yet some readers, who more than a little resemble those “irrational men” Milton decries, prefer to construe his expressive contingencies as contradiction and indeterminacy, and so to proclaim the collapse as against the creation of meaning and community in the Areopagitica. This is a different sort of scepticism from that cognizance of human fallibility, that instructive selfsuspicion, to which Judge Hand enjoins us all: its purpose is not tolerant or inclusive but restrictive, exclusive, and its method a version of strictum et summum jus which argues that our experiences and expressions must mean in one way and one way only if they are true, in the presumption that this correct significance cannot be the sense we intend, which the sceptic exposes as insufficiently rigorous, self-contradictory, deluded or fraudulent. But as the Areopagitica predicts, the appearance of untruth or contradiction in 54 V ICTORIA S ILVER such cases is fostered by our own dogmas of truth, which demand that the text observe the order of meaning we ourselves embrace when it is in the midst of arguing another. An always compelling example of this insistence is the irrepressible Stanley Fish, who argues “that Milton is finally, and in a profound way, not against licensing, and that he has almost no interest at all in the ‘freedom of the press’ as an abstract or absolute good (and, indeed, does not ambiguously value freedom at all); and that his attitude towards books is informed by none of the reverence that presumably led the builders of the New York Public Library to have this sentence from the tract preside over their catalogue room: ‘A goode Booke is the pretious life blood of a master spirit, imbalm’d and treasur’d up on purpose to a life beyond life’” (Fish 235). This statement is not altogether perverse; for as William Parker observes of Milton: “He agreed that the printer’s (and perhaps the author’s) name should be registered; he was convinced that mischievous or libellous books should be punished and suppressed. But only after publication. It was the licensing, the pre-publication censorship, that seemed to him an affront to all learning.” (Parker 1: 266) But those are not the grounds on which Fish builds or unbuilds his Areopagitica: the warrant for his thesis is neither factual, nor even discursive in the ordinary way, but precisely logical; and yet it involves a contradiction of its own. For only by imposing an extrinsic, antipathetic canon of sense on Milton’s writings, can Fish manage to reveal in them the presence of an antinomian theology - the “doctrine of the inner light” (Fish 236) - whose strict abstinence from sense frees him to draw the following conclusion: that Milton’s “entire career can viewed as an exercise in vigilance in which he repeatedly detects in this or that political or social or ecclesiastical program one more attempt to substitute for the authority of the inner light the false authority of some external and imposed rule” (Fish 236). With his typical panache, Fish calls this exercise (after a phrase in Tetrachordon) “being driven from the letter” (Fish 243), whose semantic asceticism perfectly suits him because it is what he himself does, professedly after Derrida (Fish 252). Thus, in Milton’s name, he imposes upon us an austere interpretive discipline that Fish identifies as Miltonic ethics, which proceeds to despoil the text of any sense that is not notionally indeterminate and therefore saliently senseless. As an example of such chaste semantics, here is how he understands the Areopagitica’s analogy comparing truth to Proteus: Truth in short has receded from our view, but the rhetoric of the passage still allows us to assume that she will once again come into focus if only we allow “the wars of truth” to continue without prior restraint. The point is made by a comparison of truth with Proteus, the notorious shape-shifter and emblem of deception. Proteus, Milton reminds us, would only appear in his own shape when he was bound; but in the case of truth it is exactly the reverse; if you bind or con- ‘ Unequal Proceedings’ and Equitable Interpretations … 55 strain her, “she turns into all shapes except her own” . … The moral is clear: “give her but room,” allow those who claim to know her to contend in the field, and she will soon be discernible. But that moral becomes unavailable with the very next sentence. “Yet, it is not impossible that she may have more shapes than one.” But if she has more shapes than one, then she has no shape, and is exactly like Proteus, a figure who escapes every attempt to bind her, even when that attempt takes the form of a carefully staged battle at the end of which she is to emerge; and when Milton concludes this sequence by declaring that “Truth may be on this side, or on the other, without being unlike herself,” the reflexive pronoun is an almost mocking reminder that the object of our quest has never more escaped us than when we think to have it in view, and is always unlike herself. (Fish 245) Either Fish’s edition is itself driven from the letter of the Areopagitica (“Yet, it is not impossible”), or he himself automatically resolves Milton’s ambiguity. Be that as it may, his resolution clarifies where our readings of the sentence diverge: on the categorical grounds that a manifold truth can be no truth at all, Fish reveals that Milton’s figure is a cunning device, a confidence trick that for our own good denies us access to the very truth it promises, and on which seemingly depend the justification of books, a free press, not to mention the “classical liberal vision” of the Areopagitica (Fish 248). As Fish describes this figural duplicity, it involves expressions which purport to exemplify truth even as they confound it by violating all the logical laws of thought: the law of identity, in that truth is not what it is if it is various; the law of noncontradiction, in that truth cannot be opposed to itself and still be truth; and the law of excluded middle, since truth cannot be true and untrue at the same time and in the same way. Fish can do this by treating Milton’s figure of speech not as an expression - a way of speaking or making sense of our experience like Cromwell’s special providences - but as a peculiarly discrete entity that behaves like a body moving in space and time and so objectively, causally, symbolically. That is why “she” cannot “be on this side, or on the other, without being unlike herself” - at least not according to Fish’s Newtonian physics. Where the meanings we usually make acknowledge only grammatical parameters (and with a great deal of expressive latitude), symbolic meanings of this order observe the same constraints as the perceived reality to which they are assimilated. So when the letter of Milton’s text fails in simple and exact determinacy of sense, which it must because it does not speak the mensurable, categorical language of Fish’s syllogistic, humanity’s only recourse is an extreme, or rather immoderate display of temperance, a virtuous retreat into the transcendental liberty and ethical void of solipsism - what Fish calls “modes of being, inward dispositions, conditions of a heart that is always yearning for new revelations,” which are “only futile if we conceive of it as a search for something external to us” (Fish 246). We are thus effectively consigned to quietism, if not quiescence, where we 56 V ICTORIA S ILVER must remain conceptually continent until “our Master’s second coming,” at which apocalyptic juncture we too will become “a living oracle” like him (Fish 252). This solipsistic consummation begs the question of virtue’s audience and purpose: to whom and to what effect can we possibly be oracular except ourselves? But as everyone knows, Milton follows his account of the “true warfaring Christian” with the remark that he cannot praise “a fugitive and cloister’d vertue, unexercis’d & unbreath’d, that never sallies out and sees her adversary, but slinks out of the race, where that immortall garland is to be run for, not without dust and heat” (Milton 2: 515). Now Fish never says that his version goes unexercised: on the contrary, the inner light is kept frenetically busy negating all “external” claims to meaningfulness; yet by Fish’s own logic, virtue cannot sally out to combat these claims because it has categorically repudiated any ‘out’ to which it can sally - no intelligible world or mind besides its own. Thus, in the Areopagitica, Fish’s Milton enacts for our sakes a thoroughly intransitive and so oxymoronic virtue, in which he resembles nothing so much as the Wittgenstein of the Tractatus, whose transcendental solipsist never appears in its world but serves instead as the inarticulate boundary or limit of what can be said. And like Fish’s Milton, the early Wittgenstein regards what can be said as merely trivial or relative. But if we set aside this categorical logic and simply try to make sense of what Milton does say, which Fish seems curiously reluctant to do, his expressions argue that Milton would scorn Fish’s transcendentalism as “but a blank vertue, not a pure; her whitenesse … but an excrementall whitenesse,” because neither solipsism nor the eschaton proposes - if I may steal a phrase - to transform the public sphere but simply to vacate it (Milton 2: 515-16). At the same time, Fish would have the conduct of Milton’s trope prescribe the conduct of Milton’s reader, whose existence must still be postulated if the Areopagitica is to do its work of disabusing and disappointing, so that we too will rigorously resist the seductions of language, history and politics in favor of an inward and inexpressive state of grace. We do this by imitating Fish, our own living oracle, and refusing to rest in the discursive appearance of meaningfulness as though it were real and effectual - part and parcel of what the critic dismisses as the “classic liberal plea” for which he substitutes this antinomian refusal (Fish 234). And the Areopagitica is the symbolic enactment of that refusal, which “involves encouraging the reader to a premature act of concluding or understanding which is then undone or upset by the introduction of a new and complicated perspective” (Fish 246). “The result is, of course, disorienting, but” - Fish avers - “it is also (or so Milton’s claim would be) salutary, for in the process of being disoriented the reader is provoked to just the kind of labor and exercise that is necessary to the constitution of his or her own virtue” (Fish 246). Now this could ‘ Unequal Proceedings’ and Equitable Interpretations … 57 just mean that Milton’s arguments are complex, his expressions difficult to parse, and the mental effort we expend in making sense of both strenuous; but it seems there is no sense to be had: “the tract becomes at once an emblem and a casualty of the lesson it teaches, the lesson that truth is not the property of any external form, even of a form that proclaims this very truth” (Fish 246). According to Fish, then, the Areopagitica is a kind of critique of our assumptions about truth, a thesis with which I would agree up to a point - the point at which Fish converts contingency of meaning into sheer indeterminacy, which is the same point at which I always diverge from his blindingly plausible accounts of seventeenth-century literature, when he has decimated the viable sense of the text with a magisterial aplomb that always manages to make his enforced contradictions appear inescapably, transcendentally true. For he himself is no less expert at driving us from the letter than his Milton. The paradox is of course vintage Fish, with the Areopagitica joining the ranks of self-consuming artifacts as a pious example of semantic self-denial whose validity consists in the endless deferral of meaning to some other plane of existence than the one for which it was originally, if only ostensibly intended - all of which, I would argue, is the vicarious effect of Fish’s logic-chopping virtuosity. Meanwhile, Milton’s “mode of being” in writing and publishing a tract on liberty of publication approaches that of a brain in a vat, deluded into supposing that it walks and talks, inasmuch as Fish has declared in the author’s name “the lesson that knowledge and truth are not measurable or containable entities, properties of this or that object, characteristics of this or that state” (Fish 246). Yet for all that he not inappropriately describes Milton as “continually alert to the danger of reifying some external form into the repository of truth and value” (Fish 236), it is the relentlessly objective, categorical and commensurable that remains Stanley Fish’s sole canon of sense, whose interpretive purpose is not to inquire into the meaning of the text, but ingeniously to police it in the fashion he projects for Milton. Fish does so by means of “this fierce anti-literalism [that] turns into an even fiercer anti-literaryism” which he ascribes to Milton (Fish 237), and whose epitome is that most virtuous of Milton’s heroes, our saviour in Paradise Regained, at whose second coming we will all be assimilated into truth’s “incorporate body” - but not before (Fish 246-47). Yet as Judge Hand observes, with any “objective calculus of human value,” the result of the calculation can appear “thin and speculative,” notwithstanding the undeniable flair with which it is performed, whether by Bentham or Fish. Thus the once consummate significance of the Lord’s temple becomes by Fish’s calculation yet one more emblem of expressive “insufficiency and incompleteness” that “must be at once lamented and pro- 58 V ICTORIA S ILVER tected” by his own superb rhetoric: “lamented because it is the sign of our distance from bliss, protected because as such a sign it is a perpetual reminder that bliss awaits us in a union we can achieve (precisely the wrong word) only when we are absorbed by another into a structure not made by hands” (Fish 247) - and this because its coherence is merely human and contingent as against divine and absolute. It is perhaps indicative then that ‘another’ is Fish’s euphemism for Milton’s God, whose proper name is presumably elided here as insufficient to its metaphysical referent, although the Judaic scriptures would have it divinely bestowed upon us as right and proper to our use, which is how Milton views the Lord’s temple - as a figure of human endeavor as intelligent, artistic and meaningful as his own expressions. But Fish is not the first person in three centuries of criticism to try those expressions by an extrinsic logic that finds their overt sense wanting. As it happens, he admits to competing at contradiction with Christopher Kendrick and Francis Barker (Fish 237): indeed, all three of them are doing what Fish calls “thematizing” ideology in Milton (Fish 250), which means engaging in analysis that is “properly oppositional” - virtuous in the manner of strictum et summum jus and so immune to “the lure of the text’s surface coherence” (Fish 248). For as we have been brought to realize, only a radical controversion of sense will do, as having more integrity than other kinds of critique because more abstemious of Milton’s wonted meaning. As Fish describes it, “thematizing” involves the presumption that the true yet alien valence of the Areopagitica’s expressions is disguised by their intended ideological significance, an interpretive predicament which requires the rigorous critic to disclose this superior because oppositional meaning by locating what Fish calls semantic “tensions,” “discontinuities,” “eruptions” and - of course - “fissures” in the language of the text (Fish 248). By the exercise of such “fierce anti-literalism,” even “anti-literaryism,” the tract is shown to be a curiously incontinent symbology of that suppressed or repressed truth, inexorably revealed by analysis to be a virtual facsimile of the critic’s own interpretive commitments and procedures. These somehow enjoy an indubitable status and force, the only difference being that Fish modestly confines himself to local contradictions in Milton’s text, while those exposed by Kendrick and Barker are epochal in origin and scope. However, for their own good, such “external” claims Fish is obliged to deny both critics, which he does at the essay’s end, where we find ourselves suddenly confronted - or we would if we had not all been party to the professional apotheosis of Stanley Fish - with a literary critic for whom the institution of literature departments is not a “narrow, self-enclosed, hegemonic, self-serving” entity (Fish 252), nor the lamentable “gap” between promise and fulfillment, letter and spirit, to which his version of the Areopagitica predestines us (Fish 247). They are the sole ‘ Unequal Proceedings’ and Equitable Interpretations … 59 “incorporate body of truth” we have, our brave new world, sufficient unto the day; for it turns out that Fish’s antinomian subject was simply preparing the way for Fish’s institutional solipsist, who proceeds to argue against his rivals in contrariety that the significance of literary criticism is its general insignificance to anyone “external” to the profession (as the lists and sales of university publishers would seem to confirm). That is to say, its significance is academic, disciplinary, institutional, and can no more escape its own happy insufficiency to a wider public and truth than Milton’s intended meaning can elude the notional indeterminacies and contradictions of the Areopagitica. In other words, Fish controverts Milton’s declared belief in the expressiveness of the written word precisely because it argues for the pursuit of a common knowledge - “the discovery that might bee yet further made both in religious and civill Wisdome” (Milton 2: 492) - through those “wars of truth” in which Milton himself engages by writing and publishing the Areopagitica (Milton 2: 562), and which are the functional antithesis of what Fish has dubbed interpretive communities, and his own professional justifications. So he effectively parodies Milton’s views by replacing them with an intention more uncompromising, more absolute, more ‘ideal’ than the one for which Milton himself contends, reifying the tract’s language in order to void it. Fish’s reasoning seems to be that, if the point of the Areopagitica is that we should stop trying to make public sense, then literary critics like Kendrick and Barker should acquiesce with a good grace in institutional solipsism - the last refuge of literary critics, as their detractors contend - and not seek or claim for their views any broader significance. This seclusion from the world is not without its own satisfactions, because the interpretive politics of contradiction leave us, if not “disoriented” as Fish claims, then lost in dazzled admiration at the “totalizing power” of the critic’s intention (if no less ignorant of the author’s) (Fish 248). For, in spite of his stated objection to such speciousness, Fish on the Areopagitica exemplifies exactly how a text can embody “the pretious life-blood of a master spirit.” However, in law, the pursuit of the writer’s intention is neither liberal naivete run amok nor the last word in professional cynicism, but what distinguishes justice from injustice, guilt from innocence, since the eduction of intent either from the particular circumstances of legislation or the commision of a crime helps us to understand the nature of both. As Bracton observes in the case of “homicide through misadventure and accident”: “a crime is not committed unless the intention to injure exists, <It is will and purpose which mark maleficia, nor is a theft committed unless there is an intention to steal. … In crimes, the intention is regarded, not the result.” (Bracton 2: 384) In Leviathan, Hobbes argues what had long been the equitable view - that “it is not the Letter, but the Intendment, or Meaning; that 60 V ICTORIA S ILVER is to say, the authentique Interpretation of the Law (which is the sense of the Legislator,) in which the nature of the Law consistenth” (Hobbes 321-22): In written Lawes, men use to make a difference between the Letter, and the Sentence of the Law: And when by the Letter, is meant whatsoever can be gathered from the bare words, ‘tis well distinguished. For the signification of almost all words, are either in themselves, or in the metaphoricall use of them, ambiguous; and may be drawn in argument, to make many senses; but there is only one sense of the Law. But if by the Letter, be meant the literall sense, then the Letter, and the Sentence or intention of the Law, is all one. For the literall sense is that, which the Legislator intended, should by the letter of the Law be signified. Now the Intention of the Legislator is alwayes supposed to be Equity. … (Hobbes 326) What Hobbes calls “the Letter” does not mean construing “the bare words” or mere elements of the text as Fish does - a practice which, Judge Hand presciently observes, “may either pervert what was plainly their general meaning, or leave undisposed of what there is every reason to suppose they meant to provide for” (Spirit 106). Rather, by the “literall sense” of the law, Hobbes understands a deliberate use of language to a publicly intelligible purpose, which he identifies as “the Intention of the Legislator,” and whose necessary generality places upon those who administer the law the burden of discerning and articulating the scope of this intention as it applies to each individual case in which the law is invoked. Thus it is not only the substance but also the activity of construing and applying the law that Hobbes defines as equity - “the Justice of an Arbitrator” who “if he performe his Trust, he is said to distribute to every man his own,” in Ulpian’s phrase (Hobbes 208). I need hardly remark that this is not what Fish does with Milton practically or programmatically, although he professes to pursue Milton’s “authorial strategy” despite the expected disapproval of “properly oppositional” criticism, which locates the tract’s sense in the operation of larger, objective, determinate - indeed, “external” - forces (Fish 248). But the equitable sort of interpretation advocated by Learned Hand conceives intention as the communal activity of making sense in which legislators and judges, writers and readers, together engage, with intent the meaning made available and probable by the complex of usage and circumstance which characterize any human expression or action. To quote Grotius, “Interpretatio est collectio mentis ex signis maxime probabilius”: that is, interpretation itself is “a collecting of the intent from the most probable signs or marks” (Thayer 580). Indeed, as F.Vaughan Hawkins argues, this activity “bears a strong analogy … to the course of equity”: “Interpretation is in truth a species of equity, just as equity may be said to be a liberal interpretation of the law” (Thayer 587). In his Epieikeia, Perkins makes the same point in assigning equity the essential role of countering the claims of ‘ Unequal Proceedings’ and Equitable Interpretations … 61 strictum et summum jus, “the extremity of the law,” which he describes as those occasions “when any law of man is urged and executed straitly and precisely, according to the literal sense and strict form of words and the exactest meaning that can be made out of the words, without any manner of relaxation at that time when there is good and convenient cause of mitigation in regard of the person offending” (Perkins 485). Fish’s Milton may refute literalism, but Fish himself practices it in the manner of strictum et summum jus, the rule construed and applied unconditionally, and the result is predictably arbitrary in the perjorative sense - as Perkins puts it, “so far from justice, as indeed it is flat injustice” (Perkins 485). “And herein,” he comments, “is the proverb true, summa jus, summa injuria: that is, the extremity of the law is extreme injury” (Perkins 485). By contrast, equity recognizes that “men’s laws, coming from their own wits, are imperfect and so in all cases they do not hold the same equity; and therefore must needs be executed with a discreet and wise moderation” (Perkins 489). In that spirit, Judge Hand reminds the Senate, “we are all inferior creatures,” susceptible of being mistaken (Spirit 231); and we must take what Perkins calls our “natural infirmities” into account when we make judgments, whether public or private (Perkins 491). It is such selfsuspicion that urges us to “apprehend,” “consider,” “abstain,” “distinguish” and “prefer” all the possibilities of meaning which attend on any human expression, including the law’s, a process which begins in the assumption that another’s speech, gestures and actions are meaningful in more than a negative or deceptive manner: for the concept of expression entails not only the means - language, preeminently - but the sociable intent to communicate, to make viable sense of our experiences and understandings so that, in Hobbes’ famous phrase, our lives are not “solitary, poore, nasty, brutish, and short” (Hobbes 186). Some centuries later, Hawkins agrees with him that “the convention on which usage of language rests is not a single or fixed one, but is the aggregate of an innumerable number of lesser conventions, which intersect and conflict with each other, and are continually shifting and changing from year to year. The usages of the same words at different times, in different places, by different writers, vary greatly.” (Thayer 585) In short, our expressions do not all work in precisely the same way, whose inevitable result is the need to interpret them whenever we find their sense “in any degree ambiguous, obscure, or deficient” (Thayer 586); otherwise we cannot use them as they were indubitably intended - to communicate across the seeming abyss of our separable lives. As Hawkins wryly observes: “A law, therefore, which enjoined a perfect written expression, would be impossible to be obeyed, and the command which gives rise to the necessity of the letter, in a legal writing, must itself be interpreted according to the spirit” (Thayer 587). And that is the principle of equitable interpreta- 62 V ICTORIA S ILVER tion, which is to do justice by giving others’ expressions what is due them, namely, an effort to discern their viable and to that extent intended sense. On the same principle, if we are to establish the fact of self-contradiction, we must admit not only the distinctive terms of an argument but the mediating, and not infrequently competing factor of our own interpretive presumptions, an admission which presupposes the antipathetic possibility that truth may have more shapes than one, and that not all arguments may work in exactly the same way. For such presumptions can peremptorily reduce the text to tautology, consigning us not to truth but to solipsism, as I believe Fish’s contrarian logic does; nor is my own reading invulnerable to that charge, insofar it fails adequately to address all the semantic facts of the case because I have embraced a precedent idea of meaning and value which blinds me to Milton’s. But last seen, it was Milton who in the Areopagitica contends that there is no Archimedean point from which the truth of an argument can be determined in advance of its reception; Milton who regards both accusation and asceticism as the postures, not the actuality of virtue; and Milton who observes that, “To sequester out of the world into Atlantick and Eutopian polities, which never can be drawn into use, will not mend our condition; but to ordain wisely as in this world of evill, in the midd’st whereof God hath plac’t us unavoidably” (Milton 2: 526). Simply imposing on a text some notionally superior because interpretive logic supplies evidence not of self-contradiction, but the text’s inevitable conflict with that arbitrary standard, whose presumptive truth strangely goes undemonstrated except by the circular proof of denying whatever else could be meant under the circumstances. Such a categorical logic will inevitably catch us in a false dilemma, an either/ or which compels us to choose between seeming truth and untruth, or what passes for the same thing, between the arguable sense made by the text and the no less arguable sense made by the critic, whose own integrity is unquestioned. And that is because the negative or critical argument always has the greatest appeal, since it saves us “the intolerable labor of thought” involved in making sense of someone else’s words, while allowing us the appearance of exposing a fraud, and thus the stature of stating what is really the case. “For to accuse,” as Hobbes remarks, “requires less Eloquence (such is mans Nature) than to excuse; and condemnation, than absolution more resembles Justice” (Hobbes 243). Fish’s adamant refusal to let the Areopagitica make any public sense but the demonstration of its senselessness justifies the tacit inability of his own literary interpretations to do the same, and argues by extension the incapacity of public speech to convey anything other than its own strangely patent fraudulence. This is an academic exercise in every sense; for while literary interpretation may be insignificant outside the classroom, it has always had its proper, profound and ‘ Unequal Proceedings’ and Equitable Interpretations … 63 truly public force in educating the members of any society, which is why the New York Public Library (my emphasis) proclaims Milton’s words from its rafters. The subcommittee hearing also illustrates this fact when Senator Douglas slightly misquotes the Areopagitica - “You remember the passage from Milton that the immortal garland is not to be won without sweat and heat” - which Hand then silently corrects to “dust and heat” (Spirit 251). That shared conversance with what used to be called humane learning is not only in keeping with Milton’s own explicit convictions about education, but with Judge Hand’s, who in an address entitled “Sources of Tolerance” (1930), observes that “it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject” (Spirit 81). And these are his reasons: I conceive that there is nothing which gives a man more pause before taking as absolute what his feelings welcome, and his mind deems plausible, than even the flicker of a recollection that something of the sort has been tried before, felt before, disputed before, and for some reason or other has now quite gone into Limbo. … The liberation is not in the information but in the background acquired, the sense of mutability, and of the transience of what seems so poignant and so pressing today. One may take sides violently over the execution of Charles the First, but he has been dead a long while; the issue is not bitter unless we connect it with what is going on today. … In short, I argue that the political life of a country like ours would get depth and steadiness, would tend to escape its greatest danger, which is the disposition to take the immediate for the eternal, to press the advantage of present numbers to the full, to ignore dissenters and regard them as heretics, by some adumbration of what men have thought and felt in other times and at other places. (Spirit 79-80) The dogmatic kind of scepticism Fish practices is opposed to this humility about ourselves, our devices and desires, in which Judge Hand believes history and letters can instruct us. For Fish’s scepticism is truly academic insofar as no one can live out its consequences, least of all the critic whose denial of sense must yet be legible, intelligible to others. The fact that “Nothing is perfect” - no human artifact or institution, including the law - as he remarks to Senator Aiken, does not incline Learned Hand or his hearers to embrace the antinomianism Fish imputes to Milton, or the institutional solipsism to which he invites Kendrick and Barker and all the rest of us - a gesture, if there ever was one, of indifference in Fish’s sense of apathy (Spirit 237). On the contrary, as Senator Aiken confirms, “Nothing is perfect, fortunately; otherwise, we would not have anything to strive for” (Spirit 237). The distinction in scepticisms appears again in another more heated exchange with Senator Fulbright, who clearly advocates creating the commission, and who 64 V ICTORIA S ILVER had earlier confessed disingenuously that as a “young and inexperienced and a naive young man,” he had perhaps allowed the current state of public morals to make “too much of an impression on me” (Spirit 231). Indeed, Fulbright here epitomizes the unreflective, “uncompromising conviction” that excites Judge Hand’s concern (Spirit 79): in the face of the latter’s temperate resistance to what Hand considers the superfluous expedient of a commission, Fulbright grows exasperated, wresting the sense of his witness’ words into a sarcastic either/ or of which Fish himself might approve - “that perhaps the world is better than I think it is, and even if it is not, there is nothing you can do about it” (Spirit 233). Such notionally youthful immoderation moves Judge Hand to protest the caricature of his response: “I do not want to say that nothing can be done about it. I do not want to throw up the fight, if that is what you mean.” (Spirit 233) Nor does Milton (or secretly, the Stanley Fish of The New York Times Op-ed section). The refusal to accept the contingency of human meaning and value, treating our expressions as incoherent or insufficient to their common use, has more than academic consequences, which are at the heart of Milton’s argument against the licensing ordinance. In the Areopagitica, law is not merely the dead letter to be opposed in refining an autarchic individualism because Milton is a republican and constitutionalist, for whom law as civil reason alone creates the effectual conditions of polity. And like every other human expression, it has an instrumental and artistic status, which is why he writes to change it; for neither Milton’s language nor his politics can afford to be academic in Fish’s manner, since he writes to defend “the living labours of publick men,” which is to say on his own behalf and against his own political silencing (it is the second and unregistered edition of his ever-scandalous plea for reform of the divorce laws that lands him on parliament’s index). So he argues that crucial republican relation, linking the intelligence of law with the intelligence of those under law. It is implicit in his history of censorship as a legal restraint that must be exerted with “warinesse” (Milton 2: 492). This balance he evokes in his own republican manifesto, The Ready and Easy Way (1659), by the phrase “all due libertie and proportiond equalitie” (Milton 7: 424). The equilibrium of right and justice, freedom and order, individual and community, articulated in that figural balance testifies to the ethical contingency of human actions and institutions in his thought. These are neither exact nor devoid of meaning - the only options Fish allows. Rather, Milton’s emphasis on the subjective justification of law, on the moral claims of the whole person to civil significance and justice, assumes the value of such representations even as it provides the impetus to their reform. Consider in this light the subject of one of Milton’s sonnets, that passionate republican and complete tolerationist, Sir Henry Vane, who was ‘ Unequal Proceedings’ and Equitable Interpretations … 65 excepted by Charles II from the Act of Oblivion and Indemnity, indicted and arraigned on the charge of high treason - and this despite the fact that Vane had publicly refused the Oath of Abjuration, had removed himself from the judicial proceedings aganst Charles I, and repudiated Cromwell, his erstwhile friend and colleague, as a tyrant after Pride’s Purge of the Long Parliament, with the consequence that he was imprisoned under the Protectorate. However, it appears that Charles II peculiarly blamed him for parliament’s revolt against the late king his father, especially the impeachment and execution of Strafford, whose death warrant Charles I signed to his final, public regret. Notwithstanding his own Declaration at Breda, the son was not above revenge in this case, so Vane was incarcerated again for almost two years on the Isle of Jersey, where a writ of habeas corpus could not reach him, until the moment when both parliament and judiciary were willing to oblige the king in securing his death. To that end, the crown concocted what seems at this distance a dubious charge, especially given that a number of Vane’s former colleagues in the Rump - described by the court as “a few of the House, shutting out their Fellows, and usurping the Government” (Tryal 35) - went scot free in the general amnesty (Rowe 236). As the prisoner observes, although his case involves “no Act of any private person, of his own head” (Tryal 63), the crown claimed that Vane in his own right “did levy War against the Peace,” and therefore “did compass and imagine the Death of our said sovereign Lord the King, and the ancient frame of Government of this Realm, totally to subvert and keep our said sovereign Lord from the exercise of his Regal Government” (Tryal 19). There is a further proof of the crown’s ingenuity, in that the indictment refers not to Charles I, for which accusation Vane had prepared himself, but Charles II, with the outcome a foregone conclusion whose political piquancy was enhanced by the date (the anniversary of the battle of Naseby) and the spot (on which Strafford lost his life) of Vane’s execution (Rowe 241). However, his heroic defense of himself - ten hours on his feet, without stop or refreshment and no counsel but his own - and despite official abuse, his serene defiance of death on the scaffold, right down to “a Scarlet silk Wastcoat (the victorious colour) shewing it self at the breast” (Tryal 86), rendered his prosecution “as much blamed” as the indemnifying of Milton was “much censured,” according to Bishop Burnet, who reports of Vane that “he died with so much composure that it was generally thought the government lost more than it had gained by his death” (Burnet 1: 286). But there is also a legal history behind Vane’s indictment and execution for high treason. William Holdsworth describes how, during the sixteenth and seventeenth centuries, efforts to adapt the medieval treason statute, 25 Edward 3, had become increasingly difficult because both the state and 66 V ICTORIA S ILVER the challenges to its legitimacy exceeded in complexity the Act’s initial three clauses and criteria, of which the first is at once the most crucial and most pertinent because it raises the question of intent (Holdsworth 8: 310): “When a man doth compass or imagine the death of the King, or of his wife, or of their eldest son and heir … or if a man levy war against the king in this realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm and elsewhere, and thereof be probably attainted of open deed by men of his condition … the cases above rehearsed ought to be judged treason” (Cay s.v. “Treason,” my emphasis). This political situation gave birth to the doctrine of constructive treason, the radical extension of the law’s meaning and force: “Even in the medieval period, the judges had seen that the fact that the gist of the offence was an intention to kill the king, could be used to extend its scope; for they had held that the mere speaking of words might be an overt act which evidenced such an intention. They had seen as clearly as their successors that such an intention can be proved only by overt acts, ‘for the thought of man is not triable’; and that the statute could be extended by inferring an intention to kill from overt acts which were only remotely connected, if they were connected at all, with a formed intention to kill the king.” (Holdsworth 8: 308) While the language of the statute is sufficiently coordinated to allow some such extension, “the fact that it was the intention to kill the king, and not his murder, which was made treason, was the main reason why this clause could be so extensively construed” (Holdsworth 8: 311). For intention is of course the spacious domain of interpretation; and it is is possible to infer an intent to kill the king from the most innocuous circumstances, even as it is possible to turn the argument of the Areopagitica into mysticism. The only bar to extrapolation is probability - what inferences the facts, both textual and circumstantial, can fairly be made to bear - which along with intent forms the canon of equitable interpretation. And in the seventeenth century, the facts were occasionally made to bear a great deal, since treasonous intent could be imputed to circumstances which, however disabling of the monarch’s safety, were merely coincidental or unfortunate as against premeditated and conspiratorial (Holdsworth 8: 311). Vane himself queries “Whether the Case now in question, be a Treason literally within the words of the Statute, 25. Ed. 3. or at most, any other than an interpretative and new Treason” (Tryal 57). For when the circumstances invoked as an overt act can be better understood as indifferent or ordinary in their tendency, then the court itself is guilty of prepossession, which is to say that it entertains a desire or expectation of the defendant’s guilt. The crown was certainly prepossessed in Vane’s case, for whom it became a material fact against him - evidence of levying war against the king in this realm, and so compassing and imagining the king’s death - that in Southwark, on ‘ Unequal Proceedings’ and Equitable Interpretations … 67 the eve of Charles II’s return, he told his captain to give five pounds to the militia members who had made him their colonel, so that they might buy themselves a drink to celebrate what Vane represents as his informal review at their request (Tryal 49). But in the technical construction of the crown, by this incident, Vane “levied open and actual War, in the head of a regiment,” which “is not only a treason of itself, but an evidence of all these other treasons he stands charged with in the Indictment” (Tryal 27). Vane’s conviction thus hung preposterously on the slender evidentiary thread of arranging to buy a round of drinks, which the indictment extravagantly represented as his joining “with a multitude, to the number of a thousand persons, to the Jurors unknown, in warlike manner assembled, and arrayed with Guns, Trumpets, Drums, &c. did levy War against the Peace” (Tryal 19). Setting aside the hyperbole at once gratuitous and conventional to this peculiar legal genre, there is a perceptible difference between levying war against the king, and Vane reviewing a militia regiment on parade, of which he is the nominal colonel, having never led it or any other such armed force into battle, as he argues in his own defense: “The assembling of men together, without any hostility or injury offered to any person, but for a man’s own security and defence, in a time of confusion and distraction, is not Levying War, or Treason at the Common Law, or by that Statute. Yea, in this Case, and at the season wherein such an Act as this is alledged, it might be suppposed to be done for the King’s Restoration as well as in opposition thereunto; and the most favourable and advantagious construction ought to be made and put upon the Prisoner’s actings or words, where there is ambiguity, so that they may be taken or interpreted divers wayes. For the Law always presumeth actions to be innocent, till the contrary be manifestly proved.” (Tryal 68) Given the human fact of ambiguity, exacerbated by the crown’s attempt to impose the language of 25 Edward 3 on “the Prisoner’s actings or words,” which he himself argues is inapplicable, these expressions are susceptible of more than one construction, which is as much as to say that the truth may have more shapes than one. As Vane remarks, it is equity to recognize as much, and in giving to the circumstances of the case their duly proportioned significance, extenuate accordingly for his speech and actions. For the crown’s other evidence devolves upon Vane’s official actions under the Long Parliament and the late rule of the Rump, which were otherwise covered by the Act of Indemnity and Oblivion. But the arbitrary constructions of the court do not stop with Vane’s “actings or words”: they are extended to the language of the treason statute as well, where the letter of the law is “thematized” into a symbolic absolute, possessed of ontological force. I refer to the title “king” as it appears in 25 Edward 3, of which one judge declares: “to compass the Death of the King as a natural person was Treason; to compass his Death in his Politick capac- 68 V ICTORIA S ILVER ity, as to depose him, was Treason: and both provided for by the Act of 25. Ed. 3. That in the same instant the late King expired, in the very same his now Majesty was King de facto. …” (Tryal 35) The normal inference would be that Charles II was king de jure, since he was not regnant, did not possess the supreme power, and therefore was not king de facto between 1649 and 1660. But because the statute in its various clauses defines the charge of treason both in terms of the king’s “natural” and “politic” capacities - it is treason in the politic sense to seek the death of the queen or the king’s heir apparent - those capacities are conflated with the terms de facto and de jure, which were used to distinguish the conditions of governance, not the conditions of the king’s title. In other words, because the statute defines an attempt to kill the king as treason, who can only die in his natural capacity, the court symmetrically, categorically, conflates the term de facto with the king’s natural person, thus assimilating crucial differences of usage to a single presiding likeness in the manner of symbolism. One could call this a version of Fish’s own practice of “anti-literaryism,” whose categorical logic converts Milton’s figure of truth’s body into an object governed by the laws of classical physics. Even if the term de facto is taken in the titular sense - as arguing that there were no other claimants to Charles’ crown at the time - the court proceeds to extrapolate improbably from that legal category, with the result that the title becomes an ontological reality maintained regardless of the facts on the ground. The king accordingly is as god, assuming in his natural person transcendental capacities that are humanly impossible, and which prove a fruitful source of absurdity and injustice, since now the king in his natural, not just his politic capacity, can and cannot die. This is the metaphysical literalism of which both Hobbes and Milton despair, and which characterizes a class of royalist apology whose entire method Vane as a commonwealth-man disdains. He prefers instead to argue his case from the legal phrase and, as he sees it, conciliar relation, “king-in-parliament,” which allows to parliament a legislative authority coequal and coextensive with the king’s executive power, according to the republican principle of mixed or balanced government, confirmed in his view by Charles I’s Answer to the Long Parliament’s Nineteen Propositions: “The King in conjunction with the Parliament, is Maxime Rex, and is supported in the Throne and exercise of his Regal Power, by the joynt concurrence of both Houses” (Tryal 39). Given that his judges were king’s men and his jury handpicked royalists, this tack means that Vane makes his last stand on the constitutional issues over which the civil war was fought, which he declares “is such a new and extraordinary case, evidently above the Track of the ordinary Rules, contained in the positive and municipal Laws of England, there can be no colour to bring it within the Statute of 25 Ed.3.cap.2” (Tryal 43). ‘ Unequal Proceedings’ and Equitable Interpretations … 69 The court, however, ruthlessly narrows argument to technical questions by ruling that the Rump was no parliament but an illegal cabal. Such distinctions, of course, have always played a legitimate role in political trials; but insofar as the crown’s argument depends upon the axiom that Charles II was king de facto, it offers a case study in the sort of incoherence “properly oppositional” criticism pursues. For despite its ruling, the court nonetheless insists that if the king is deposed in his politic person or dies in his natural person, parliament as the extension of either is thereupon dissolved: parliament’s existence ends with the king’s who called it, and is therefore contingent and finite. But given that Charles is king de facto, although he is not in possession of the supreme power, neither of the events which would normally end his reign - namely, deposition or death - can do so. The court’s judgment in effect eliminates the automatic causes of parliament’s dissolution, allowing it to sit indefinitely under the king’s authority, legislating whatever acts and ordinances it pleases, including its own self-ordained longevity. This was an actual concession to the principle of shared governance made by Charles I in his Answer, as Vane points out, and the Long Parliament became at least in its own eyes an autonomous legal body (Tryal 39), which is why it is on the notionally defunct authority of the reconvened Long Parliament that proceedings to restore Charles II were inaugurated. But neither of these events could or need occur by the court’s ruling, since the king had somehow been exercising complete sovereignty ever since his father’s death. Yet the indictment itself recognizes that an interregnum did occur, insofar as Vane is charged with having sought “totally to subvert and keep out our said sovereign Lord from the exercise of his Regal Government,” and to have “consulted to bring the King unto destruction, and to hold him out from the exercise of his Regal Authority, and then and there usurped the Government” (Tryal 19). Even allowing for Charles II’s indivisible and inalienable sovereignty in law, the accusation that the parliament or cabal in which Vane participated kept the king from the exercise of his regal authority and government, usurping both, would seem to require the legal recognition of that traitorous entity’s de facto rule, and thus an interregnum in which Vane’s allegiance was legally owed to whatever power actually governed the nation at the time. But not here, where legality is utterly divorced from fact, and enjoys its own version of institutional solipsism. In this distortion of the eucharistic logic informing the doctrine of the king’s two bodies, the court’s reading of the statute argues something very like the “real presence” of Charles in England when he was actually wandering the continent, so that, as Vane puts it, he finds himself accused of keeping the king out of his realm when Charles was already in it, albeit categorically and transcendentally: “The words of his Indictment ran thus, that he endeavoured to keep 70 V ICTORIA S ILVER out his Majesty; and how could he keep him out of the Realm, if he were not out? ” (Tryal 54). Moreover, while the king can be deposed in his politic capacity, he can only die in his natural capacity, which if the court is not to render the application of 25 Edward 3 entirely absurd, means that for Vane to be convicted of compassing and imagining the death of the king, Charles in his natural capacity must somehow be present in “this realm,” so that the defendant’s heading a regiment in Southwark can be an overt act bringing “the King unto destruction,” in the extended construction of the treason statute. As Vane objects, “All this is very far from that Indifferency in Tryal, and from that Equality which the Law requires, and they are bound by their Oath to afford me” (Tryal 55), and moreover bears out Judge Hand’s criticism of those judges whose adamant insistence on the letter expediently converts to interpretive license at the least hint of a threat to the status quo. Such “unequal Proceedings,” as Vane calls them (Tryal 56), in every respect violate the principle of justice ex aequo et bono - “from the fair and the good” - whose inequitable consequence, the taking of Vane’s life, is hardly academic. If contingency of meaning were always indeterminacy, then the entire realm of civil life to which Milton and Vane appeal would indeed be vacant, meaningless, and their equal determination to resist political silencing perfectly absurd. Everyone would already have been consigned to Rousseau’s inarticulate state of nature, or more likely to Hobbes’ version, the war of all against all, which is itself an emblem of contradiction but lacking in any possibility of individual transcendence, since the luxury of antinomian virtue presupposes the law’s protection of person and property. Without belaboring the point, we would hardly bother to construe the passing expression of a face if it were not fully capable of a significance more than negative, more than institutional, which affects us profoundly for good and ill. Reciprocally, no human being can relinquish the freedom and responsibility of making sense without losing all humanity in the eyes of the world, and suffering what amounts to a social death. It is this conviction that inspires that red-letter passage in which Fish contends that Milton is being unlike himself. When he says, “as good almost kill a Man as kill a good Book” (Milton 2: 492), he makes a plea that we seek to understand someone besides ourselves - to do justice by equitably considering what another person’s expressions may intend. So in the face of his judges’ prepossession, Vane is obliged to declare the intent of his own “actings or words”: “Far be it therefore from me, to have knowingly, maliciously, or wittingly offended the Law, rightly understood and asserted: much less, to have done anything that is malum per se, or that is morally evil” (Tryal 26). No more than Vane is Milton’s concern with some ideal entity, but with the individual’s lived condition under law, whose claims to justice ex aequo et bono this preemptive order of licensing would deny in his view. Obviously, if only inward ‘ Unequal Proceedings’ and Equitable Interpretations … 71 virtue and transcendent liberty were Milton’s desiderata, as Fish says they are, he would never have bothered to write, much less publish the Areopagitica, or indeed any of his tracts. But as Milton knows from his own recent bout with the law, human identity is a shared understanding that requires the constant, intelligible expression of self to others. To do anything else is simply to give up the world - and not just for the academic life - which is finally what Fish’s Areopagitica recommends, but not John Milton’s. 72 V ICTORIA S ILVER Works Cited All biblical citations are from the Revised Standard Version. Aristotle. Nicomachean Ethics. Trans. and ed. Terence Irwin. Indianapolis, Ind.: Hackett, 1985. Ashley, Maurice. England in the Seventeenth Century. 3rd rev. ed. Harmondsworth, England: Penguin, 1967. Bracton, [Henry de]. On the Laws and Customs of England. Trans. Samuel E. Thorne. Ed. George E. Woodbine. 3 vols. Cambridge, Mass.: Belknap P, Harvard UP, 1968. Breward, Ian, ed. The Work of William Perkins. Courtenay Library of Reformation Classics. Abingdon, England: Sutton Courtenay P, 1970. 479-510. Cay, John. An Abridgement of the Public Statutes in Force and Use. 2 vols. London: Edward Sayer, 1739. Carlyle, Thomas, ed. Oliver Cromwell’s Letters and Speeches, with Elucidations. [Ashburton edition of Thomas Carlyle’s Works, 17 vols.] 3 vols. London: Chapman Hall, 1886. Dillard, Irving, ed. The Spirit of Liberty: Papers and Addresses of Learned Hand. 2nd ed. New York, Knopf, 1953. Firth, Sir Charles. Oliver Cromwell and the Rule of the Puritans in England. 1900. Oxford: World’s Classics, Oxford UP, 1953. Firth, C.H. and R.S. Rait. Acts and Ordinances of the Interregnum, 1642-1660. 3 vols. London: Stationery Office, 1911. Fish, Stanley. “Driving from the letter: truth and indeterminacy in Milton’s Areopagitica.” Remembering Milton: Essays on the Texts and Traditions. Ed. Mary Nyquist and Margaret W. Ferguson. New York: Methuen, 1987. 234-54. Gardiner, S.R. History of the Commonwealth and Protectorate. 4 vols. 1903. Adlestrop, England: Windrush, 1988. Hawkins, F. Vaughan. “On the Principles of Legal Interpretation.” Rpt. in Thayer, 577-605. Hobbes, Thomas. Leviathan. Ed. C.B. Macpherson. Harmondsworth, England: Penguin, 1968. Holdsworth, W.S. A History of English Law. 9 vols. Boston: Little, Brown, 1926. Marvell, Andrew. The Complete Poems. Ed. Elizabeth Story Donno. Harmondsworth, England: Penguin, 1972. 55-58, ll.105-6. Parker, William Riley. Milton: A Biography. Ed. Gordon Campbell. 2 vols. 2nd ed. Oxford: Oxford U P, 1996. Rowe, Violet A. Sir Henry Vane the Younger. University of London Historical Series. London: Athlone P, University of London, 1970. [Saint Germain, Christopher]. Doctor and Student. 17th ed. 1787. Birmingham, Ala.: Legal Classics Library, 1988. Story, Joseph. Commentaries on Equity Jurisprudence. Ed. Melville M. Bigelow. 2 vols. 13th ed. 1886. Littleton, Colo.: Fred B. Rothman, 1988. Thayer, James Bradley. A Preliminary Treatise on Evidence at the Common Law. 1898. New York: Rothman Reprints, Augustus M. Kelley, 1969. The Tryal of Sir Henry Vane, Kt. 1662. Wolfe, Don M., et al., eds. Complete Prose Works of John Milton. 8 vols. New Haven: Yale UP, 1953-82.