Book Review

Robert Wilcher, The Writing of Royalism, 1628-1660, New York: Cambridge University Press, 2001. Pp. xii + 403. $64.95 (ISBN 521-66183-8).

In the early modern period, rhetoric supplied the theoretical underpinnings of lawoffered lawyers a method for developing arguments, provided a rationale for the craft of the orator and the work of the parliamentarian. A notable collection of essays, edited by Victoria Kahn and Lorna Hutson, explores this interplay between the discourse arts and the law. Conversely, Robert Wilcher's survey of the literature produced by English royalists (works meant to serve the cause of Charles I, of all English rulers, the king most overtly hostile to the common law and Parliamentary authority) offers a study in counterpoint. Several of the essays collected by Kahn and Hutson examine the way in which ideas were transmitted--which may be to say, how the community of rhetoricians endured or shifted shape over time. Barbara Shapiro discusses how Ciceronian rhetoric shaped the English law of evidence, tracing classical techniques of argumentation into the English justicing manuals of the seventeenth century. Kathy Eden analyzes the publication of Erasmus's Adages, "not only a common treasury of the intellectual wealth of so-called classical antiquity but also, toying with the emerging legal sense, a commonly held literary property" (279).	1
Carla Freccero reveals the personal history and political beliefs that Marguerite de Navarre coded into her collection of short stories, the Heptaméron. In "Algernon Sydney's Ideal of Law," Annabel Patterson both burnishes the reputation of an all-but-forgotten patriot and links the defense Sydney offered, against the dubious treason charges on which he was condemned, to a peculiar legal genre, "an alternative legal canon, as it were: the records, most often produced surreptitiously and printed illegally, of what were seen as unusually unjust trials" (223). Carefully tracing the intellectual connections of John Selden and Hugo Grotius, Johann P. Sommerville questions whether these jurisprudents intended or created an intellectual revolution: "They used old-style language about natural law," he concludes, "not to disguise the startlingly innovatory nature of their ideas about it but because the ideas were mostly old-style too" (339).	2
Two essays draw a considerable deal of strength from each other. David Harris Sacks examines the intellectual context and implications of Slade's Case (1602). As is well known, this landmark decision allowed plaintiffs suing on contracts to bring actions on the case, in trespass--an action in which they could not be non-suited by a defendant's wager of law (producing oath-helpers to swear that no action lay). The decision emphasized the outward signs of a contract, the records that could show promise or payment, and sensibly inferred that to make a business agreement, no matter in what words, inescapably involved promising to pay. Beyond this, Sacks points out, Slade reflects a move by lawyers to treat the "consideration" for a promise as the "material cause" of the contract (the definition used by Rastell's law dictionary in 1624). In the language of classical rhetoric, "material cause" focused on "the thing or things of value exchanged between the parties" (unlike the "first cause" or "final cause," which looked, respectively, to the human or divine purposes of the transaction) (30). This was one of realism's greatest victories, on both functional and metaphysical levels: "Focusing on the 'material cause' of the contract--some-thing empirically determinable by rational observers," Sacks observes, "exposed the secret sanctuary of the conscience to public tests" (41).	3
Lorna Hutson examines many of these same themes. She demonstrates that the streets where one found the "knights of the post," the professional oath-takers of the Tudor law courts, were the same Eastcheap slums in which Falstaff's crew consorted with Prince Hal. (Shakespeare's line about buying "a commodity of good names" echoes a pamphlet that denounced wager of law.) At the same time, Hutson demolishes a prevailing, mistaken impression of Edmund Plowden. Far too often, she demonstrates, scholars have taken Plowden's jurisprudence as revolving around "the king's two bodies." The great lawyer was not known as an apolo-gist for royal authority. Rather, he was honored for pioneering a theory of equitable interpretation in which statutes were read according to the legislators' meaning--a theory popular with common-law judges, who found in it a rationale for asserting their own powers.	4
In a thoughtful essay on Michel de Montaigne, Constance Jordan sketches in the historical engagements of a philosopher whose skepticism often seems to lift him above the petty quarrels of history. Jordan argues that even if Montaigne accepted the French political order as a historical artifact, even if he doubted all the claims made in religion's name, he nonetheless gave faithful service to both state and church. Despite his sympathies and Huguenot connections, he felt that the abstract good of religious toleration was outweighed by its risks--both civic un-rest by subjects and unprincipled reaction by governments. The other side of Montaigne's philosophical skepticism, she convincingly demonstrates, was an unflinching positivism. This portrait is a striking one, not least because of the essayist's likeness to that other skeptical, urbane positivist, Justice Oliver Wendell Holmes.	5
Jane O. Newman draws connections across the career of Grotius: his studies of international law, his role as an Arminian controversialist, and his sidelong glance at the politics of Ethiopia, a country bloodily divided along religious lines-Monophysite clergy and noblemen against Jesuit-inspired innovators. As a student of ecclesiastical history, she points out, Grotius interested himself in practices common to all Christians, including those of the Coptic rite. This mirrors his scholar-ly concerns with establishing the rights and powers of independent nations; when discussing an unfamiliar people, he looked for similarity, not for difference, and treated a little-known African state as a realm from which a divided Europe might draw insights.	6
Alan Stewart, in "Bribery, Buggery and the Fall of Lord Chancellor Bacon," revisits the devastatingly brief period in 1621 during which Francis Bacon was forced out of England's highest judicial office. Bacon was brought down by charges that he and his staff had accepted bribes (and by broad hints, barely veiled, of sexual dealings among the Lord Chancellor and those same servants). "Anxieties about Bacon's alleged sodomy," Stewart writes, were "figured as anxieties about admittance into his bedchamber, a place of intimate influence and of course of potential unchastity" (135-36). In sum, Stewart concludes, such complaints reflected a single concern with disorder in the state, Bacon's inability to control his household.	7
In much the same vein, Victoria Kahn uses a Jacobean treatise on family life, William Gouge's Domesticall Duties (1622) to illumine the shifting ground of political theory--specifically, the way in which human passions were understood to play a part in securing rational assent to the structures of society. In Gouge's analysis, the duties of husband and wife were reciprocal but not identical, with husbands required to love their wives, while wives revered and obeyed their husbands--a scenario very similar, Kahn observes, to the relations held to exist in the larger political realm. Looking to Milton and Hobbes, she finds a revealing contrast: Milton stressed a husband's right to happiness, Hobbes the fear that possessed men in a state of nature--analogues to the principles of pleasure and pain along which the brave new world of coming centuries would run.	8
Two essays, unfortunately, mire themselves in tropes. Luke Wilson tries hard-too hard--to connect the ideas that shaped Slade's Case and contract metaphors casually used by Ben Jonson. Peter Goodrich's "Gay Science and Law," ostensibly devoted to medieval "courts of love," offers instead a mélange of provocative quotation and conscious self-delight (preferring to quote Lacan and Nietzsche rather than tackle the question, say, of whether such tribunals ever actually existed). This piece appears to recycle Goodrich's earlier work.	9
The dust jacket of Robert Wilcher's book features, very appropriately, Peter Lely's portrait of Charles I. Classical rhetoric exalted the role of courts and assemblies, rather than either of the monarch's bodies. The royal portrait introduces a body of writing that, however intelligent or innovative (it includes pamphlets, poems, Clarendon's histories, and what was arguably the first English newspaper, Mercurius Aulicus), must be taken as a mass of countervailing polemic, works written to flatter, praise, and serve the king. Charles tried, at first, to work through Parliaments. He grudgingly honored the common law (or, at least, used judges to enforce his policies). Nonetheless, from the winter afternoon when Charles led his troopers into the lobby of the House of Commons, the lines were inescapably drawn: to support the king was to rank the institution of the monarchy above all courts, even the High Court of Parliament.	10
The king's apologists rejected contract theories of government. The Parliament's role in English government, John Spelman argued, had arisen because English rulers had chosen, by "the voluntary and pious submission of their wills," to allow their vassals and commons to consent to legislation enacted by the monarch (203). Dudley Digges claimed that the people's rights could never justify resistance to their overlord: "Populi salus suprema lex is the engine by which the upper rooms are torn from the foundation and seated upon fancy only, like castles in the air. For the safety of the people is really built upon government. . . ." (156). Sir Robert Filmer argued that the king might absolutely, even arbitrarily, make law. John Maxwell equated the king's authority with the patriarchal authority granted by God to Adam. Maxwell, in fact, asserted that the people's only power was a negative "potestas passiva regiminis, a capacity or susceptibility to be governed" (206). Rhetoricians equated the good and the true with the persuasive, with language that inspired action; to demonize the forcefulness that Parliament showed, royalists mocked the religious faith--that is, the belief in truth--that inspired many members. It was the "factious meetings and illegall tumults" of "a rable of Brownists and Anabaptists," a pamphleteer asserted in early 1643, that had led the king to withdraw from Westminster (147). That we often dismiss the English Puritans as puritanical, rather than recalling their revolutionary energy, may be the royalists' most lasting victory.	11
The king's apologists may have sensed the implications of their arguments. In The Unlawfulnesse of Subjects taking up Armes against their Soveraigne (1644), Dudley Digges claimed that the war offered an illustration, "powerfull beyond rhetorick," of the horrors that rebellion brought (202). Implicitly, ironically, Digges identified rhetoric as a force that might justify Parliament's cause. In reminding us of arguments that failed, Wilcher has done yeoman service. The Writing of Royalism holds up a dark mirror to the rhetorical tradition that Kahn and Hutson have so ably illumined.	12
Allen D. Boyer Staten Island, New York

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