In a narrow pass

Stephen Sedley and Lawrence Kaplan seek to map a new course for the post-socialist Left, and to turn attention away from that beguiling but now exploded theme, egalitarianism. The long fixation with egalitarianism has, they complain, allowed the Right today to ‘appropriate the word liberty and equate it with the acquisition of power’; and the phenomenon of Thatcherism would certainly bear them out. To enable a redirected Left to know itself, they have edited the eloquent works of a pre-socialist exponent of liberty, John Warr, who in the months around the execution of Charles I in January 1649 urged sweeping legal and political reforms. In Warr’s eyes, ‘liberty was the antithesis of power,’ not of property as Winstanley the Digger might have maintained: ‘it represented both the restraint of the mighty by the law and a people’s right to overthrow rulers who abused their power.’

How well they have succeeded in delivering Warr as a man for our times remains to be seen; the interest more immediately excited by this book is likely to be of quite another kind. It is not often that an appointee to the judicial bench – and particularly one appointed under a Tory administration – aligns himself with some of the most resonant exhortations to radical law reform in English history. And those who read A Spark in the Ashes with an eye to the sympathies of Mr Justice Sedley might learn much. Warr’s lament for a time when there were ‘no stately mansions for lawyers’ invites mean-spirited moderns to interest themselves in our judicial reformer’s abode; aggrieved defendants, or would-be litigants unable to afford the cost of law, may seek a Sedleian subtext in Warr’s consistent championing of equality against the forms of the law, and in his protests at the law’s discriminations in favour of power and interest. ‘Who would not blush to behold seemingly grave and learned sages prefer a letter, syllable or word before the weight and merit of a cause?’ Indeed, Warr concluded, ‘it is altogether impossible that the people should be free without a reformation of the law,’ for ‘when the poor and oppressed want right, they meet with law, which (as ’tis managed) is their greatest wrong.’ So far, so very good.

Yet those called to appear before Justice Sedley might have cause to pause a little. There is something of the advocate, as well as of the disinterested scholar, in these pages. The editors present Warr as part of a tradition of spiritual and social rebellion extending back to the 12th century and forward to modern Marxism. Whatever the conceptual difficulties in a characterisation of the ‘oddly proto-Marxist character’ of Warr’s thought, or the Sixtiesish flavour of the section heading ‘Warr Today’, there are textual difficulties too, and one hopes Mr Sedley as judge will upbraid counsel who approach evidence in the way Mr Sedley as editor sometimes does.

The most troubling instances have to do with the theological underpinnings of what is here labelled Warr’s ‘ideology of liberation’. That Warr was a Christian thinker of considerable depth and sophistication is manifest; so, too, is the interdependence of his claims for political and legal liberty with his insistence on the transcendence of equity in religious life, on the triumph of the spirit over mere ecclesiastical forms. Sedley and Kaplan look back to Joachim of Fiore in the 12th century for the origins of the conviction, not uncommon among English radicals as the polity seemed to unravel at the end of the 1640s, that the age of the spirit was dawning, that Old Testament law and Gospel ministry alike were going the way of kingly and aristocratic power. As they point out, the certainties of the ‘third age’ have been at the root of much antinomianism and political ferment in European history, from the Twelve Articles of the German peasants in 1525 to William Blake.

Yet Warr is emphatic on the need for a spiritual reading of what Sedley and Kaplan want to read materially: ‘These administrations [of law, gospel and spirit] are of a spiritual, not chronical, consideration, and are not distinguished by fleshly epochs or period of time.’ They co-exist, in different proportions, in awakening Christians. So while Warr did write memorably that in his time ‘teeming freedom exerts and puts forth itself’, he may not have seen the struggle in quite the cataclysmic terms the editors assume. Indeed, he was ready to concede some validity to forms – ‘not but that there is some power [of the spirit] in the form, but ’tis a weak and inferior appearance.’ More certainly, as a textual scholar himself, Warr would not have been impressed by the way his editors slant their editing to make their point. He or his printer was, if not random, then at least liberal in the use of capitalisation, for nouns and modifiers alike. His editors modernise and lower-case throughout, except in the case of one coupling: on two occasions, Warr uses the phrase ‘everlasting gospel’, capitalised in the original as with so much else. With no explanation or even announcement, the editors retain that capitalisation. They then observe, coyly, ‘to some of Warr’s readers the Everlasting Gospel will have been a code word,’ and on that basis invoke ‘the millenarian heresy which runs back in time’ to Joachim and forward to Blake. That reification then forms the heart of their argument: ‘In parallel with the tripartite cosmic scheme of the Everlasting Gospel ... Warr ... sets out a three-phase scheme of state power.’ The parallelism, and its practical implications, are more problematic than the editors assume.

To say that this volume enables us to learn something about those responsible for it is not to deny its value as a key to radicalism at the crux of the English revolution. Not least, it demonstrates the complexity of the late-1640s map. The editors, and Christopher Hill in a foreword, make much of the nexus of Levellers, Diggers, Ranters and Quakers; and while they make no claims for Warr’s affiliation to any such group, they clearly wish to locate him within a broad popular upheaval. And Warr does indeed, while foreseeing the triumph of ‘teeming freedom’, denounce in familiar terms ‘landlord, tenant, holds, tenures, etc’ as ‘slavish ties and badges upon men, grounded originally on conquest and power’. Yet Warr’s pamphlets also reflect that dominant culture, studded as they are with Classicisms and informed by a Classical sense of cyclical change.

It is perhaps less than surprising, then, that despite all his elevation of equity and spirit over form, Warr’s were very form-bound works. Not for him the stream-of-inspiration prose of some of those to whom his editors liken him. All three of his pamphlets are carefully structured, influenced in their juxtaposing of positives and negatives by academic disputations. And in content, too, the pamphlets prove less easy to categorise than Sedley, or Hill, allow. Their depiction of Warr the legal thinker as a radical rejectionist of the existing common law centres on his complaint that ‘the very law is the badge of our oppression,’ but such an emphasis does justice to neither thinker nor text. The castigation of the law as an oppressive badge comes in a discussion of the cost of legal technicalities, and begins with the rather less sweeping words, ‘many times’. As we might expect of one convinced that the three dispensations, of law, Gospel and spirit, co-existed in the world and in the individual simultaneously, Warr believed that law had a vital part to play in restraining baser human instincts: but it could and should be made more consistent with equity.

I suspect that Warr was himself a lawyer – probably a country attorney, to judge not only by his pervasive concern for local courts but also by the feeling evident in his observation that country attorneys still stayed in country inns, unlike their rich metropolitan colleagues; he could certainly deploy an obscure statute of Edward I in an argument about local pleadings. But what is most remarkable is his sophisticated historical analysis of the law and legal change, going far beyond the Norman Yoke theories of Levellers and Winstanley invoked in the introduction. Warr indeed derides English law as the malleable tool of successive conquerors; yet he also draws on the most advanced scholarship to comment on the similarity of Anglo-Saxon and ancient Danish juries, concluding that the similarity of post-Conquest and Danish law stemmed from the Normans’ itinerary, from Denmark to England by way of France. This was odd stuff to give the troops, if we conceive of them in conventional terms as the denizens of London alehouses. Army quarters and Digger colonies.

The problem of Warr’s intended audience is crucial, to an understanding of much of 17th-century radicalism as well as of Warr himself. His three pamphlets dealt successively with the relation of form and spirit in spiritual and civil affairs, with political freedom and with the law. While the first of these affords us little beyond a general sense that a well-educated audience must be presumed, the others give abundant indication that they were aimed at Parliament. The editors suggest that the place Warr left at the end for Parliament reflects growing pessimism after the crushing of the Leveller mutineers at Burford – ‘an awareness that the moment of popular power was spent’. But in this they are led astray by their temporalising of Warr’s three dispensations. Since all Christians at all times are to various degrees the recipients of all three, some have more of equity, reason, the spirit, than do their fellows; and despite his peroration, ‘Are we not all derived from one common stock? Is not every man born free?’ Warr has an almost Miltonic sense of the superior claims of those who have heard the call of the spirit. Even in his first pamphlet. Warr argued that equity, ‘in whom it is, should give law to those in whom it is not; for thus the light of the principle comes to shine abroad, if men sincerely walk accordingly to that rule in managing their power over others.’ It was quite in keeping with those early principles that he came to argue in his final work, The Corruption and Deficiency of the Laws of England that ‘choice ... in itself is no undeniable badge of a just law ... Let righteousness and truth be given out to the nation, we shall not much quarrel at the manner of conveyance.’ The spirit matters far more than any democratic form of imparting it.

Read carefully, A Spark in the Ashes – which so helpfully presents powerful writings in manageable form – makes of John Warr a man of his own times rather than a model for ours. The editors’ argument that for him ‘liberty was the antithesis of power’ is one-sided. Like most Calvinists and post-Calvinists of his day, Warr had a nice sense of human weakness (far from the Winstanleyesque pantheism Sedley and Kaplan see as they argue that for Warr the age of the spirit was dawning), and warned that whether ‘through the inbred corruption within men’ or simply ‘the heat of contest ... even truth itself will jostle its adversary in a narrow pass.’ In such circumstances, he seems to have concluded, liberty – defined in his terms as equity, reason, the spirit, rather than in ours, as free choice and individual freedom – was likely only to be secured through power. And in this of course he was not alone – we can find similar authoritarian advocates of liberty in Milton, the spokesman of the virtuous few, in Winstanley the Digger, who urged support for the Rump Parliament and addressed his blueprint for a regimented utopia to Oliver Cromwell, and in James Harrington, whose perfect republic of Oceana was likewise to be secured by Olphaus Megaletor, aka Oliver Cromwell. Yet that does not mean that Warr has nothing to say to us. No less than Milton, who witnessed his dreams destroyed by ‘the perpetual bowings and cringings of an abject people’ before the monarchy, Warr recognised the human fragility of liberty. The same page that contains the ringing question, ‘Is not every man born free?’ also details our fatal willingness to be ‘dazzled’ by the ‘empty shows’ of ‘the princes of the world’.