The house of poetry contains many mansions. These mansions are so diverse in their qualities and in their effect on the indweller and some of them are so distant from others that the inhabitants of one mansion have sometimes been heard to deny that another is part of the same building at all. For instance, Edgar Allen Poe said that there is no such thing as a long poem,1The Poetic Principle, 1850. and the difference between a long narrative poem and a short lyric is admittedly rather baffling, seeming almost to be one of kind. What I have to say here touches mainly lyric poetry, and will interest those who love to dwell with recurring delight on special felicities of expression more than those to whom poetry means taking their Iliad or their Fairie Queene a thousand lines at a time and enjoying the story. It is highly specialized. Think for a moment of poems as pieces of fabric, large tapestries, or minute embroideries as the case may be. What I have to say does not concern the whole form of even one of the embroideries, but only the texture itself, the nature of the process at any given point, as the fabric comes into being, the movements which the shuttle or the needle must have made. It is still more specialized than this: for in examining the texture of poetry one of the most important elements (a mansion to itself) is rhythm, sound, music; and all of this is of necessity excluded. I am fully aware that this involves the corollary that the kind of poetry I am talking about may also be written in prose; but that is a difficulty which is chronic to the subject. I wish, however, to treat of that element in poetry which is best called ‘meaning’ pure and simple. Not the meaning of poetry, nor the meaning of any poem as a whole, but just meaning. If this sounds like an essay in microscopy, or if it be objected that what I am talking about is not poetic diction, but etymology or philosophy or even genetic psychology, I can only reply that whatever it ought to be called, it is to some people, extraordinarily interesting, and that if, in all good faith, I have given it a wrong address, it is still to me the roomiest, the most commodious, and the most exciting of all the mansions which I rightly or wrongly include in the plan and elevation of the great house.
The language of poetry has always been in a high degree figurative; it is always illustrating or expressing what it wishes to put before us by comparing that with something else. Sometimes the comparison is open and avowed, as when Shelley compares the skylark to a poet, to a high-born maiden, and to a rose embowered in its own green leaves; when Keats tells us that a summer’s day is
Or when Burns writes simply: ‘My love is like a red red rose.’ And then we call it a ‘simile’. Sometimes it is concealed in the form of a bare statement, as when Shelley says of the west wind, not that it is like, but that it is ‘the breath of Autumn’s being’, calls upon it to ‘make him its lyre’, and says of himself that his leaves are falling. This is known as ‘metaphor’. Sometimes the element of comparison drops still farther out of sight. Instead of saying that A is like B or that A is B, the poet simply talks about B, without making any overt reference to A at all. You know, however, that he intends A all the time, or, better say that you know that he intends an A; for you may not have a very clear idea of what A is and even if you have got an idea, somebody else may have a different one. This is generally called ‘symbolism’.
I do not say that these particular methods of expression are an absolute sine qua non of poetic diction. They are not. Poetry may also take the form of simple and literal statement. But figurative expression is found everywhere; its roots descend very deep, as we shall see, into the nature, not only of poetry, but of language itself. If you took away from the stream of European poetry every passage of a metaphorical nature, you would reduce it to a very thin trickle indeed, pure though the remainder beverage might be to the taste. Perhaps our English poetry would suffer the heaviest damage of all. Aristotle, when treating of diction in his Poetics, provides the right expression by calling the element of metaphor πολὺ μέγιστον—far the most important.3‘It is a great matter to observe propriety in these several modes of expression, as also in compound words, strange (or rare) words, and so forth. But the greatest thing by far is to have a command of metaphor. This alone cannot be imparted by another; it is the mark of genius, for to make good metaphors implies an eye for resemblances.’ Poetics, XXII.
It may be noticed that I am now using the word ‘metaphor’ in a slightly different and wider sense than when I placed it in the midst between simile on the one hand and symbol on the other. I am now using it, and shall use it frequently throughout this article, to cover the whole gamut of figurative language including simile and symbol. I do not think this need confuse us. Strict metaphor occurs about the middle of the gamut and expresses the essential nature of such language more perfectly perhaps than either of the extremes. In something the same way Goethe found that the leaf of a plant expressed its essential nature as plant, while the blossom and the root could be considered as metamorphoses of the leaf. Here I want to try and consider a little more closely what the essential nature of figurative language is and how that nature is most clearly apparent in the figure called metaphor.
But first of all let us return to the ‘gamut’ and take some examples. This time let us move along it in the reverse direction, beginning from symbolism.
Does the road wind uphill all the way? Yes, to the very end. Will the day’s journey take the whole long day? From morn to night, my friend. But is there for the night a resting-place? A roof for when the slow, dark hours begin. May not the darkness hide it from my face? You cannot miss that inn. Shall I meet other wayfarers at night? Those who have gone before. Then must I knock or call when just in sight? They will not keep you waiting at that door. Shall I find comfort, travel-sore and weak? Of labour you shall find the sum. Will there be beds for me and all who seek? Yea, beds for all who come.4Christina Rossetti, ‘Up-Hill,’ Macmillan’s Magazine, February 1861.
As I have already suggested, the ordinary way of characterizing this kind of language would be to say that the poet means one thing and says another. Is this true? Is it fair to say that Christina Rossetti says B but that she really means A? I do not think this is a question which can be answered with a simple ‘yes’ or ‘no’. In fact the difficult and elusive relation between A and B is the heart of my matter. For the time being let me hazard, as a rather hedging sort of answer, that the truer it is to say ‘yes’, the worse is the poem, the truer it is to say ‘no’, the better is the poem. We feel that B, which is actually said, ought to be necessary, even inevitable in some way. It ought to be in some sense the best, if not the only, way of expressing A satisfactorily. The mind should dwell on it as well as on A and thus the two should be somehow fused together into one simple meaning. But if A is too obvious and could be equally or almost as well expressed by other and more direct means, then the mind jumps straight to A, remains focused on it, and loses interest in B, which shrinks to a kind of dry and hollow husk. I think this is a fault of Christina Rossetti’s poem. We know just what A is. A = ‘The good life is an effort’ plus ‘All men are mortal’. Consequently it detaches itself from B, like a soul leaving a body, and the road and the inn and the beds are not a real road and inn and beds, they look faintly heraldic—or as if portrayed in lacquer. They are not even poetically real. We never get a fair chance to accord to their existence that willing suspension of disbelief which we are told constitutes ‘poetic faith’. Let us try another:
‘Is there anybody there?’ said the Traveller, Knocking on the moonlit door; And his horse in the silence champed the grasses Of the forest’s ferny floor: And a bird flew up out of the turret, Above the Traveller’s head: And he smote upon the door again a second time: ‘Is there anybody there?’ he said. But no one descended to the Traveller: No head from the leaf-fringed sill Leaned over and looked into his grey eyes, Where he stood perplexed and still. But only a host of phantom listeners That dwelt in the lone house then Stood listening in the quiet of the moonlight To that voice from the world of men: Stood thronging the faint moonbeams on the dark stair, That goes down to the empty hall, Hearkening in an air stirred and shaken By the lone Traveller’s call. And he felt in his heart their strangeness, Their stillness answering his cry, While his horse moved, cropping the dark turf, ’Neath the starred and leafy sky; For he suddenly smote on the door, even Louder, and lifted his head:— ‘Tell them I came, and no one answered, That I kept my word’, he said. Never the least stir made the listeners, Though every word he spake Fell echoing through the shadowiness of the still house From the one man left awake: Ay, they heard his foot upon the stirrup, And the sound of iron on stone, And how the silence surged softly backward, When the plunging hoofs were gone.5Walter de la Mare, The Listeners, 1911.
This poem seems to me to possess as symbolism most of the virtues which I miss in Christina Rossetti’s. First it obviously is a symbol. There is an A and a good solid one, though we do not know what it is, because we cannot put it into a separate container of words. But that is just the point. A has not got (perhaps I should say, it has not yet got) a separate existence in our apprehension; so it makes itself felt by modifying and enriching the meaning of B—it hides itself in B, hides itself in language which still could on the face of it be heard and interpreted as though no A came into the question at all.
I must here remark that merely making A obscure is not in itself a recipe for writing good symbolical poetry. William Blake at his worst, and, I fancy, many modern poets who write or intend to write symbolically, go astray here. They are so anxious to avoid the error of intending too obvious an A, so anxious to avoid a mere old-fashioned simile, that we end by being mystified or disgusted by the impossibility of getting any sort of feeling at all of what they are talking about, or why. Why are they talking about B at all? we ask ourselves. If they are doing it simply for the sake of B, it is pure drivel. On the other hand, if they intend an A, what evidence is there of it? We do not mind A being intangible, because it is still only half born from the poet’s unconscious, but you cannot make poetry by cunningly removing all the clues which, if left, would discover the staleness of your meaning. In other words, if you set out to say one thing and mean another, you must really mean another, and that other must be worth meaning.
It will be observed that when we started from the simile and moved towards the symbol, the criterion or yard-stick by which we measured our progress was the element of comparison—paramount in the simile and very nearly vanished out of sight in the symbol. When, on the other hand, we move backwards, starting from the symbol, we find ourselves with another yard-stick, viz., the fact of saying one thing and meaning another. The poet says B but he means A. He hides A in B. B is the normal everyday meaning which the words so to speak ‘ought’ to have on the face of them, and A is what the poet really has to say to us, and which he can only say through or alongside of, or by modifying, these normal everyday meanings. A is his own new, original, or poetic meaning. If I were writing this article in Greek or German, my public would no doubt be severely restricted, but there would be this advantage to me—that I could run the six words ‘say-one-thing-and-mean-another’ together and use the resulting conglomerate as a noun throughout the rest of it. I cannot do this, but I will make bold to borrow another German word instead. The word Tarnung was, I believe, extensively used under the heel of the Nazi tyranny in Germany for the precautionary practice of hiding one meaning in another, the allusion being to the Tarnhelm of the Nibelungs. I shall give it an English form and call it ‘tarning’. When I say ‘tarning’, therefore, the reader is asked to substitute mentally the concept of saying one thing and meaning another, in the sense in which I have just been trying to expound it. We have already seen that the more A lives as a modification or enrichment of B, the better is the tarning.
Now let us proceed to the next step in our backward progress from symbol to simile. We come to the metaphor. And here we find both the best and the most numerous examples of tarning. Almost any poem, almost any passage of really vivid prose which you pick up is sure to contain them in abundance. I will choose an example (the source of which he does not disclose) given by Dr. Hugh Blair, the eighteenth-century writer on style.
Those persons who gain the hearts of most people, who are chosen as the companions of their softer hours, and their reliefs from anxiety and care, are seldom persons of shining qualities or strong virtues; it is rather the soft green of the soul on which we rest our eyes, that are fatigued with beholding more glaring objects.6Hugh Blair, Lectures on Rhetoric and Belles Lettres, Lect. XIV. The unnamed source is Edmund Burke, A Philosophical Inquiry into the Origins of our Ideas Of the Sublime and Beautiful, Part III, Sect. X.
Consider how the ordinary literal meaning of the word ‘green’ blends with the ineffable psychic quality which it is the writer’s object to convey! How much weaker it would be, had he written: ‘It is rather persons whose souls we find restful, as they eye finds green fields restful, &c.’ Put it that way and nearly all the tarning, and with it half the poetry, is lost. The passage reminds me of this from Andrew Marvell’s Garden:
The Mind, that Ocean where each kind Does straight its own resemblance find; Yet it creates, transcending these, Far other Worlds, and other Seas; Annihilating all that’s made To a green Thought in a green Shade.7Andrew Marvell, The Garden, 43–48.
What a lot of tarning can be done with the word ‘green’!
We see that any striking and original use of even a single word tends to be metaphorical and shows us the process of tarning at work. On the whole, I think it is true to say that the fewer the words containing the metaphor, the more the expression is in a strict sense a ‘trope’ rather than a metaphor—the more tarning we shall feel. For the long and elaborate metaphor is already almost a simile—a simile with the word ‘like’ missed out. We must, however, remember that the tarning may not have actually occurred in the particular place where we find it. People copy one another and the metaphor may be a cliché or, if not a cliché, part of our common heritage of speech. Thus, when Tennyson writes:
When the happy Yes Falters from her lips, Pass and blush the news Over glowing ships.8Alfred, Lord Tennyson, Maud, 579–582.
we feel the peculiarly effective use of the word ‘blush’ throughout this lyric is a tarning of his own. It actually goes on in us as we read. When, on the other hand, Arnold writes in the Scholar Gypsy:
or:O Life unlike to ours! Who fluctuate idly without term or scope
Vague half-believers of our casual creeds Who never deeply felt, nor clearly willed, Whose insight never has borne fruit in deeds9Matthew Arnold, The Scholar-Gipsy, 166–167, 172–174.
though none of this writing can be described as cliché, yet we feel that the metaphorical element in ‘fluctuate’ and in ‘borne fruit’ is the product of a tarning that happened long before Arnold was born. So, too, in the passage I first quoted the ‘shining qualities’ and the ‘softer hours’ are metaphors of the kind we are all using every day, almost without thinking of them as metaphors. We all speak of clear heads, of brilliant wit, of seeing somebody’s meaning, of so-and-so being the pick of the bunch, and so on: and most of us must use at least, say, a hundred of these dead or half-dead metaphors every day of our lives. In fact, in dealing with metaphor, we soon find ourselves talking, not of poetry, but of language itself. Elsewhere in language we seem to find that the process of tarning, or something very like it, either is or has been at work.
We seem to owe all these tropes and metaphors embedded in language to the fact that somebody at some time had the wit to say one thing and mean another, and that somebody else had the wit to tumble to the new meaning, to detect the bouquet of new wine emanating from the old bottle. We owe them all to tarning, a process which we find prolifically at work wherever there is poetry—from the symbol, where it shouts at us and is all too easily mishandled, to the simile, where we already hear the first faint stirrings of its presence, inasmuch as the B image even here is modified, enriched or coloured by the A image with which it is this time overtly compared.
Then fly our greetings, fly our speech and smiles! —As some grave Tyrian trader, from the sea, Descried at sunrise an emerging prow Lifting the cool-hair’d creepers stealthily, The fringes of a southward-facing brow Among the Aegean isles; And saw the merry Grecian coaster come, Freighted with amber grapes, and Chian wine, Green bursting figs, and tunnies steep’d in brine; And knew the intruders on his ancient home,
The young light-hearted masters of the waves.10Matthew Arnold, The Scholar-Gipsy, 231–241.
The grave Tyrian trader and the merry Grecian coaster are not the same figures that we should meet in a history book. They have their own life, they take in the imagination a special color from the things with which they are compared—that is, the Scholar Gypsy on the one hand and our too modern selves on the other. They are pregnant with the whole of the poem that has gone before.
I said at the beginning that I might be accused of indulging in a kind of aesthetic microscopy. The drawback of the microscope is this, that even if the grain of sand which we see through it does indeed contain a world, mere magnification is not enough to enable us to see that world. Unfortunately the processes which are said to give to the infinitesimal a cosmic character are not merely minute; they are also very rapid. This is certainly true of the process of tarning as it takes place in the mind of the poet and his reader. It is both rapid and delicate and, as the reader may have felt already, it is difficult to take it out and examine it without rushing in where angels fear to tread. But there is another modern invention which may be brought to the aid of the microscope in order to meet this drawback; and that is the slow-motion film. Can we find in any sphere of human life something analogous to a slow-motion picture of the tarning process? I think we can. I have said that tarning can be detected not only in accredited poetry or literature but also in the history of language as a whole. Is there any other human institution in which tarning also happens, and in which it happens on a broader scale and at a more leisured pace? I think there is. I think we shall find such an illustration as we want in the law, notably in the development of law by means of fictions.
We are accustomed to find something crabbed and something comic in legal fictions. When we read in an old pleading an averment that the plaintiff resides in the Island of Minorca, ‘to wit in the parish of St. Mary le Bow in the Ward of Cheap’—or, in a Note in the Annual Practice for 1945, that every man-of-war is deemed to be situated permanently in the parish of Stepney—it sounds funny. But it must be admitted that this is not any funnier per se than Shelley’s telling us that his leaves are falling or Campion informing us as to his mistress that ‘there is a garden in her face’. It is funny when we take it literally, not particularly funny when we understand what is meant and why it is expressed in that particular way.
There is one kind of metaphor which occurs both in law and in poetry and which is on the whole commoner and less odd-sounding in modern law than it is in modern poetry. This is personification of abstractions:
Let not Ambition mock their useful toil, Their homely joys, and destiny obscure; Nor Grandeur hear with a disdainful smile The short and simple annals of the poor.11Thomas Gray, Elegy Written in a Country Churchyard, 29–32.
We find this particular usage almost vanished from English poetry by the beginning of the twentieth century. The personification of abstractions and attributes which we find in the more high-flown sort of eighteenth-century poetry or in the occasional allegorical papers which Johnson inserted in the Rambler sound stiff and unnatural to us, and a modern poet would hardly bring himself to try and introduce the device at all. On the other hand, the personification of limited companies by which they are enabled to sue and be sued at law, to commit trespasses, and generally to be spoken of as carrying on all sorts of activities which can only really be carried on by sentient beings, is as common as dirt and no one ever dreams of laughing at it. But these examples will hardly do for our slow-motion picture. On the contrary, in them the gap between the B meaning and the A meaning is as wide and the prima facie absurdity of the B or surface-meaning is hardly less than in, let us say, Ossian’s description of the Hero: ‘In peace, thou art the Gale of Spring, in war, the Mountain Storm.’12Fingal, Bk vi.
The important thing is to see how and why the legal fiction comes into being and what is its positive function in the life of human beings. If you have suffered a wrong at the hands of another human being, the practical question for you, the point at which law really touches your life as a member of society, is, Can you do anything about it? Can you bring the transgressor to book and obtain restitution? In other words, can you bring an action against him, obtain judgment, and get that judgment executed? Now the answer to that question must always depend to some extent, and in the earlier stages of a society governed by law it depends to a very large extent indeed, on the answer to another question. It is not enough simply to show that the transgressor has, in common parlance, broken the law. What you or your advisers have to make up your mind about is something rather different and often much more complicated. You have to ask yourselves, Is there a form of procedure under which I can move against him? If so, is it sufficiently cheap and expeditious for me to be able to adopt it with some hope of success? Where, as in the case of English Common Law down to the middle of the nineteenth century, these forms of procedure, or forms of action as they are more often called, are severely restricted in number, these questions are very serious ones indeed.
While the so-called historical fictions (which are the only ones I am concerned with) have no doubt played a broadly similar part in every known system of law, I think it will be best if I confine myself to England and take a particular example. The forms of action were not the arbitrary inventions of an ingenious legislator. They grew up out of the whole history of English social life, and one of the results of this was a wide difference between those forms of action which had their roots in the feudal system and those which sprang from later and different sources. I think it is true to say that they were different because they were really based on two different ways of looking at human beings in society. You may look at a human being in what I will call the genealogical way, in which you will conceive of his legal rights and position as being determined by what he is rather than by what he may choose to do. They will then seem to be determined by the kind of father he had, by the piece of land to which he and his ancestors were attached or which was attached to them, and by its relations to adjoining land attached to other people and their ancestors and descendants. Or alternatively you may look at him in what I will call the personal way, in which case his position will seem to be determined more by the things which he himself has chosen to do of his own free will. Maine in his Ancient Law calls the first way ‘Status’ and the second way ‘Contract’, and he depicts society as evolving from the first towards the second. Broadly speaking, forms of action having to do with the ownership of land had grown up out of the first way, form of action having to do with the ownership of personal property out of the second way, of looking at human beings.
Now suppose that you had a good claim to the ownership of a piece of land, perhaps with a pleasant house on it, which was in the possession of somebody else who also, but wrongfully, claimed to be the owner. Your proper normal form of action, say, five hundred years ago, was by Writ of Right, a form of action which was very much of the first type and hedged about accordingly with all sorts of ceremonies, difficulties, and delays.
At trahere atque moras tantis licet addere rebus!13‘Still may one retard events so great, and add delays.’ Aeneid, vii, 315.
One of the drawbacks of this type of action was that it was subject to things called essoins. Essoins seem to have corresponded roughly to what we should call ‘adjournments’; they no doubt grew up procedurally with a view to preventing an unscrupulous plaintiff from taking unfair advantage of the defendant’s ill health, absence, or other accidental disability. But they must have been corn in Egypt for a usurping defendant. I am tempted to let Glanville,A1 Beames’ Translation of Glanville (London, 1812). in his own sedate language and at his own pace, give the reader some idea of their nature and complexity:
If the Tenant, being summoned, appear not on the first day, but Essoin himself, such Essoin shall, if reasonable, be received; and he may, in this manner, essoin himself three times successively; and since the causes on account of which a person may justly essoin himself are various, let us consider the different kinds of Essoins.
Of Essoins, some arise on account of ill health, others from other sources.
(I will here interpose that, among the essoins arising from other sources were the de ultra mare and the de esse in peregrinatione and that, if a person cast the essoin de esse in peregrinatione, ‘it must be distinguished whether he went to Jerusalem or to another place. If to the former place, then a year and a day at least is generally allowed him.’ And with that, I will let Glanville proceed again in his own order:)
Nor was it forgotten that essoiners themselves may be subject to infirmities and languors.Of those Essoins which arise from ill health, one kind is that ex infirmitate veniendi, another ex infirmitate de reseantisa.
If the Tenant, being summoned, should on the first day cast the Essoin de infirmitate veniendi, it is in the election of his Adversary, being present, either to require from the Essoiner a lawful proof of the truth of the Essoin in question, on that very day, or that he should find pledges, or bind himself solemnly that at the day appointed he will have his Warrantor of the Essoin . . . and he may thus Essoin himself three times successively. If, on the third day, he neither appear nor essoin himself, then let it be ordered that he be forthcoming in proper person on another day; or that he send a fit Attorney in his place, to gain or lose for him. . . . It may be asked, what will be the consequence if the Tenant appear at the fourth day, after having cast three Essoins, and warrant all the Essoins? In that case, he shall prove the truth of each Essoin by his own oath and that of another; and, on the same day, he shall answer to the suit. . . .
If any one desire to cast the Essoin de infirmitate de reseantisa, he may thrice do it. Yet should the Essoiner, on the third day preceding that appointed, at a proper place and before a proper person, present his Essoin. If, on the third summons, the Tenant appear not, the Court should direct that it may be seen whether his indisposition amount to a langour, or not. For this purpose let the following Writ issue, directed to the Sheriff of the County . . .:
‘The King to the sheriff, Health. I command you that, without delay, you send four lawful men of your County to see if the infirmity of which B. hath essoined himself in my Court, against R., be a langour or not. And, if they perceive that it is a langour, then, that they should put to him a day of one year and one day, from that day of the view, to appear before me or my justices. . . .’
The principal Essoiner is also at liberty, if so disposed, to essoin himself by another Essoiner. In this case the second Essoiner must state to the Court that the Tenant, having a just cause of Essoin, had been detained, so that he could not appear at the day appointed, neither to lose nor gain, and that therefore he had appointed a certain other person to essoin him; and that the Essoiner himself had met with such an impediment, which had prevented his appearance on that day; and this he is prepared to prove according to the practice of the Court. . . .
Having at last succeeded in getting your opponent out of bed and fixing the day for the trial, you still could not be certain that he would not appear in court followed (subject, no doubt, to essoins) by a professional boxer or swordsman, whom you would have to tackle in lieu of calling evidence. And so on. And all this maybe about a claim so clear that you could get it disposed of in five minutes if you could only bring it to the stage of being tried at all!
It would have been a very different matter, so perhaps your counsel would advise you, if only the issue were about personal property instead of real property. We could go to a different court with a different form of action. No essoins. No wager of law. No trial by battle. No trial by order. Everything up to date and efficient. What is personal property, you might ask. Well, your horse for one thing and your hawk and your clothes and your money—on! yes, and oddly enough if you were a leaseholder instead of a freeholder and had only a term of years in this precious piece of land, that would be personal property too. But can’t I get my case heard by these people? Don’t they understand anything about fee simple? Oh! yes, they understand it all right; in fact they often have to decide the point. For instance, if a leaseholder in possession is ousted by a trespasser—by Jove! I’ve just thought of something! And then if your counsel had a touch of creative genius, he might perhaps evolve the following device. It was evolved at all events, by Tudor times or thereabouts and continued in use down to the middle of the nineteenth century.
Remember the situation: You are the rightful owner of a piece of land of which X, who is in possession, wrongfully claims to be the owner. The device was this: you proceeded to inform the court by your pleadings that you, as owner of the land, had recently leased it to a person whose name was John Doe, and John Doe had been ousted from his possession violently, vi et armis, by X, the defendant. You were not bringing the action, you pretended: John Doe was; but as X might aver in his defense that the blameless Doe had no title, Doe has joined you, his landlord, in the proceedings to prove that you did have a good title at the time you leased the land to him. By this means you got your case before that court that had jurisdiction to deal with the action known as ejectment, and were able to take advantage of the simpler and more effective procedure. Sometimes the fiction was a little more elaborate. Instead of alleging that X had ejected John Doe, you said that another gentleman called Richard Roe, or possibly William Stiles, had done so. Richard Roe having subsequently allowed X to take possession now claimed no interest in the proceedings, but he had given X notice that they were pending, so as to give X a chance to defend his title. In this case the first thing X heard of it all was a letter, signed ‘your loving friend, Richard Roe’, telling him what had happened. Needless to say, John Doe and Richard Roe had no existence.
Many thousands of actions of this pattern and using these names must have been brought between the fifteenth and the nineteenth centuries and before long the whole procedure was no doubt so much a matter of course that it was little more than a kind of mathematical formula. There must, however, have been some earlier occasions on which it was a good deal more, and it is upon any one of these—perhaps the first of all—that I want the reader to bend his mind. Picture to yourself the court, with counsel on his feet opening the case. The story of John Doe and Richard Roe is being unfolded. At one point the judge suddenly looks up and looks very hard at counsel, who either winks very slightly or returns a stolid, uncomprehending stare according to his temperament and the intimacy of his acquaintance with the judge out of hours. But counsel knows all the same what has happened. The bench has tumbled to it. The judge has guessed that there is no John Doe, no Richard Roe, no lease, no entry, no ouster. At the same moment, however, the judge has seen the point of the whole fiction, the great advantage in the speedy administration of justice (for the real issue—the validity of X’s title and yours—will be heard fairly and in full) and in the extended jurisdiction of his own court. He decides to accord the pleadings that willing suspension of disbelief which hundreds of years later made Mr. Bumble say that the law was a ‘hass’. The case proceeds. Place this picture before your mind’s eye and there I think you will have a slow-motion picture of ‘tarning’.
Has new law been made? It is much the same as asking whether new language has been made when a metaphor disappears into a ‘meaning’. At all events, we begin to understand more fully what Maitland meant, when he wrote of English law that ‘substantive law has at first the look of being gradually secreted in the interstices of procedure’.14Frederic Wiiliam Maitland, The Forms of Action at Common Law, (Cambridge: Cambridge University Press, 1909), Lecture 1, quoting Henry Sumner Maine, Dissertations on Early Law and Custom, (London: John Murray, 1883), Chap. XI, p. 389. This is particularly true of an unwritten system like the English Common Law, where the law itself lay hidden in the unconscious, until it was expressed in a judgment, and were rights themselves depended on the existence of remedies. Consider that very important fiction, which is very much alive and flourishing all round us today—the fiction on which the law of trusteeship is based. Anyone who is a trustee will know how absurdly remote from reality is the B interpretation of his position, according to which he is the ‘owner’ of the trust property. Yet this fiction, which permeates the whole of our jurisprudence, which most certainly is law, and not merely procedure, was introduced in the first place by devices strictly procedural, devices and circumstances which had their origin in that same contrast between the genealogical and the personal conceptions of society which gave us John Doe and Richard Roe.
Moreover, this fictitious ownership, which we call trusteeship, has been strong enough to have other fictions erected on it. By the Common Law the personal property of a married woman became her husband’s as soon as she married. But by a particularly ingenious piece of tarning the equity judges expressed in the form of law, and in doing so no doubt partly created, a more modern view of the rights of married women. They followed the common Law doctrine that the husband owned everything but, as to property which someone had given to the wife with the intention that she should have it for her own separate use, the courts of equity began in the eighteenth century to say that the husband did indeed own this, but he owned it as trustee for his wife; and they would prevent him from dealing with it in any other way.
In the same way a metaphor may be strong enough to support a metaphor, as when Shelley bids the west wind ‘Make me thy lyre even as the forest is’. If Shelley is not a lyre, neither is the forest; yet he illustrates the one fiction with the other. Nor is there anything grotesque or strained in this magnificent line. It is only when we begin to ponder and analyze it that we see how daring it is.
The long analogy which I have been drawing may be expressed more briefly in the formula:—
metaphor : language : meaning :: legal fiction : law : social life.
It has no particular significance if poetry is to be regarded only as either a pleasurable way of diverting our leisure hours or a convenient vehicle for the propagation of doctrine. For it must be conceded that there is all the difference in the world between the propagation of a doctrine and the creation of a meaning. The doctrine is already formulated and, if we choose to express it by tarning, that is simply a matter of technique or political strategy. The creation of meaning is a very different matter. I hope I may have succeeded in showing in the earlier part of this article that metaphor is something more than a piece of the technique of one of the fine arts. It is πολὺ μέγιστον not merely in the diction of poetry but in the nature and growth of language itself. So far we have only considered in this connection those ubiquitous figures of speech which are, or used to be, called ‘tropes’, as when we speak of our lives fluctuating, of our insight bearing fruit in deeds, of seeing the point, and so on. But if we proceed to study language with a more definitely historical bias, and look into the etymologies and derivations of words, then the vast majority even of those meanings which we normally regard as ‘literal’ are seen to have originated either in metaphors or in something like them. Such words as spirit, sad, humour, perceive, attend, express, understand, and so on immediately spring to mind as examples. Indeed the difficulty here would rather be to find words that are not examples. There is no doubt that they were once metaphorical. The question which a good many people have asked themselves, a little uneasily, is, Are they still metaphors? And if not, when—and still more how—precisely, did they cease to be so?
What is essential to the nature and growth of language is clearly essential to the nature and growth of our thought, or rather of our consciousness as a whole. In what way then is metaphor or tarning essential to that nature and that growth? Here we begin to tread on metaphysical ground and here I think the analogy of legal fictions can really help us by placing our feet on one or two firmer tufts in the quaking bog. It can help us to realize in firmer outlines certain concepts which, like all those relating to the nature of thought itself, are tenuous, elusive, and difficult of expression.
Students of history will have observed that rebellions and agitations arising out of dissatisfaction with the law tend, at any rate in the earlier states of society, to demand, not so much a reform of the law as its publication. People complain that they do not know what the law is. They want to know what it is, because otherwise they cannot be sure that it will be the same tomorrow as it is today. In fact it is the very essence of a law that it should apply to every case. It follows that the forms of action must be limited in number, and they must not change from day to day. If there is a different law for every case that arises, then what is being administered is simply not law at all but the arbitrary (though not necessarily unjust) decisions of those who govern us. But that is exactly what the word ‘law’ means—something which is not such a series of arbitrary decisions or events, something which will be the same for the next case as it was for the last. This is where the difficulty arises; for it is the nature of life itself (certainly of human life) never to repeat itself exactly. Phenomena exactly repeated are not life, they are mechanism. Life varies, law is of its nature unvarying. Yet at the same time it is the function of the law to serve, to express and indeed partly to make the social life of the community. That is the paradox, the diurnal solution of which constitutes the process called society. One solution is legislation, the other is fiction. Legislation is drastic, a priori, and necessary. Fiction is flexible, empirical, and also necessary. ‘Without the Fiction of Adoption,’ says Maine in his Ancient Law, ‘it is difficult to understand how Society would ever have escaped from its swaddling-clothes.’15Henry Sumner Maine, Ancient Law: Its Connection With the Early History of Society, and its Relation to Modern Ideas, (London, John Murray, 1861), p.27.
In the paradoxical relation of law to social life I think we have a useful picture of the paradoxical relation of language to consciousness. Formal logic is not much studied nowadays, but that does not alter the fact that logic is essential to the very existence of language and the forms of proposition and syllogism underlie all expression. Now logic presupposed first and foremost that the same word means the same thing in one sentence as it does in another. Humpty Dumpty may speak of making his words ‘mean’ what he chooses, and if somebody made a noise never heard before or since he might possibly manage to convey some sort of vague sympathetic impression of the state of his feelings. Yet repetition is inherent in the very meaning of the word ‘meaning’. To say a word ‘means’ something implies that it means that same something more than once.
Here then is the paradox again. The logical use of language presupposes the meanings of the words it employs and presupposes them constant. I think it will be found to be a corollary of this, that the logical use of language can never add any meaning to it. The conclusion of a syllogism is implicit already in the premises, that is, in the meanings of the words employed; and all the syllogism can do is to make that meaning clearer to us and remove any misconception or confusion. But life is not constant. Every man, certainly every original man, has something new to say, something new to mean. Yet if ye wants to express that meaning (and it may be that it is only when he tires to express it, that he knows what it means) he must use language—a vehicle which presupposes that he must either mean what was meant before or talk nonsense!
If therefore he would say something really new, if that which was hitherto unconscious is to become conscious, he must resort to tarning. He must talk what is nonsense on the face of it, but in such a way that the recipient may have the new meaning suggested to him. That is the true importance of metaphor. I imagine that is why Aristotle, in calling metaphor ‘the most important’, gives as a reason that ‘it alone does not mean borrowing from someone else’. In terms of mixed law and logic we might perhaps say that the metaphorical proposition contains a judgment, but a judgment pronounced with a wink at the court. Bacon put it more clearly in the Advancement of Learning when he said:
Those whose conceits are seated in popular opinions need only but to prove or dispute; but those whose conceits are beyond popular opinions have a double labour; the one to make themselves conceived, and the other to prove and demonstrate. So that it is necessity with them to have recourse to similitudes and translations to express themselves.16Advancement of Learning, ii, XVI, 10.
If we consider Bacon’s position in the history of thought, it will not surprise us that the problem should have presented it self to him so clearly. Himself a lawyer, was he not attempting to do for science the very thing Maitland tells us those old legal fictions were contrived for, that is, ‘to get modern results out of medieval premisses’?17Frederic Wiiliam Maitland, The Forms of Action at Common Law, (Cambridge: Cambridge University Press, 1909), Lecture 1.
At all events there is a sentence in the Novum Organum which provides one of the most striking illustrations of tarning that it would be possible to imagine. It is a double illustration: first, there was an attempt at deliberate and fully-conscious meaning-making, which failed: Bacon tried to inject new meaning into a word by saying precisely what he wanted it to mean. But we have seen that what is said precisely cannot convey new meaning. But, since his meaning was really new, there had at some point in the process to be a piece of actual tarning. There was—and it succeeded. He did in fact new meaning into another word—not by saying, but by just meaning it!
Licet enim in natura nihil vere existat praeter corpora individua edentia actus puros individuos ex lege; in doctrinis tamen, illa ipsa lex, ejusque inquisitio et inventio atque explicatio, pro fundamento est tam ad sciendum quam ad operandum. Eam autem legem ejusque paragraphos formarum nomine intelligimus; praesertim cum hoc vocabulum invaluerit, et familiariter occurrat.A2 ‘Although it is true that in nature nothing exists beyond separate bodies producing separate motions according to law, still for the study of nature that very law and its investigation discovery and exposition are the essential thing, for the purpose both of science and of practice. Now it is that law and its clauses which we understand by the term ‘forms’—principally because this word is a familiar one and has become generally accepted.’ Novum Organum, ii. 2.
The ‘forms’ of which Bacon here speaks were not other than the Platonic ideas, in which Bacon did not very much believe. What he did believe in was that system of abstract causes or uniformity which we have long since been accustomed to express by the phrase ‘the laws of nature’, but for which there was then no name, because the meaning was a new one. He therefore tried deliberately by way of a simile to put this new meaning into the old word ‘forma’; but he failed, inasmuch as the new meaning never came into general use. Yet at the same time, more unconsciously, and by way of metaphor, he was putting the new meaning into the word ‘lex’ itself—that curious meaning which it now bears in the expression ‘the laws of nature’. This is one of those pregnant metaphors which pass into the language, so that much of our subsequent thinking is based on them. To realize that after all they are metaphors, and to ask what that entails, opens up avenues of inquiry which are beyond the province of this article. Certainly, they may be misleading, as well as illuminating. Long after Bacon’s time, two great men—a lawyer who was concerned with the nature of law and a poet who was concerned with the nature of Nature—felt bound to draw attention to this very metaphor.
‘When an atheist,’ wrote Austin, ‘speaks of laws governing the irrational world, the metaphorical application is suggested by an analogy still more slender and remote. . . . He means that the uniformity of succession and co-existence resembles the uniformity of conduct produced by an imperative rule. If, to draw the analogy closer, he ascribes these laws to an author, he personifies a verbal abstraction and makes it play the legislator. He attributes the uniformity of succession and co-existence to laws set by nature: meaning by nature, the world itself; or perhaps that is the very uniformity which he imputes to nature’s commands.’A3Jurisprudence (1869), i. 213.
The introduction of the atheist into this passage does not, I think, weaken its force as an illustration, for whatever the strength of Bacon’s religious faith, it is quite plain that the ‘laws’ of which he speaks in the Novum Organum have very little to do with the ‘commands’ of any being other than nature itself.
‘Long indeed,’ says Coleridge in The Friend, ‘will man strive to satisfy the inward querist with the phrase, laws of nature. But though the individual may rest content with the seemly metaphor, the race cannot. If a law of nature be a mere generalization, it is included . . . as an act of the mind. But if it be other and more, and yet manifestable only in and to an intelligent spirit, it must in act and substance be itself spiritual : for things utterly heterogeneous can have no intercommunion.’18Samuel Taylor Coleridge, The Friend 2, ii, Essay XI.
Perhaps we may supplement the last sentence by saying that an apparent intercommunion between things utterly heterogeneous is the true mark of metaphor and may be significant of spiritual substance. If this is so, and if the aptness of a metaphor to mislead varies inversely with the extent to which it continues to be felt and understood as a metaphor and is not taken in a confused way semi-literally, then the contemplation by the mind of legal fictions may be really a rather useful exercise. For these are devices of expression, of which the practical expediency can easily be understood, and whose metaphorical nature is not so easily forgotten as they pass into general use.
There is not much that is more important for human beings than their relations with each other, and it is these which laws are designed to express. The making an application of law are thus fundamental human activities, but what is more important for my purpose is that they bear the same relation to naked thinking as traveling does to map-reading or practice to theory. It is not by accident that such key-words as judgment and cause have two distinct meanings; the practical task of fixing personal responsibility must surely have been the soil from which, as the centuries passed, the abstract notion of cause and effect was laboriously raised. Accordingly it would be strange indeed if the study of jurisprudence were not well adapted to throw light on the mind and its workings.
That study was formerly regarded as an essential element in a liberal education. It was a distinguished Italian jurist, Giovanni Battista Vico, who at the turn of the seventeenth and eighteenth centuries became interested in the figurative element in language and evolved therefrom a theory of the evolution of human consciousness from an instinctive ‘poetic’ wisdom (sapienza poetica) to the modern mode of analytical thought.
It is perhaps a pity that this respectful attitude to legal studies has long since been abandoned; a pity both on general grounds and because the vast change in man’s idea of himself wrought by the new notions of evolution and development, and by the comparatively recent birth of historical imagination, have opened up rich new fields of speculation both in language and in law. A better and more widely diffused knowledge of the latter could hardly fail to be beneficial in far-reaching ways at a time when the whole theory of human society is in the melting-pot. For instance, a deeper, more sympathetic understanding of the long, slow movement of the human mind from the feudal, or genealogical, way of regarding human relationships towards what I have called the ‘personal’ way would do no harm.
But I have been mainly concerned here with the subject of fictions. Properly understood, are they not a telling illustration of the fact that knowledge—the fullest possible awareness—of the nature of law is the true way of escape from its shackles? ἐγὼ γὰρ διὰ νόμου νόμῳ ἀπέθανον, ‘I, by the law, died unto the law’, wrote St. Paul;19Galatians 2:19. and the nature of law, as law, is the same, whether it be moral, or logical, or municipal. If it be important for men to get a deep feeling for this process of liberation in general, it is equally important, for special reasons, that they should better comprehend the particular problem of the part played by metaphor in the operation and development of language. Here too the way to achieve liberation from the ‘confusion’ of thought on which metaphor is based is not by attack or rebellion. The intrinsic nature of language makes all such attitudes puerile. It is not those who, like the optimistic Mr. Stuart Chase,A4The Tyranny of Words (London, 1938). set out to cut away and expose all metaphorical usage who escape the curse of Babel. No. The best way to talk clearly and precisely and to talk sense is to understand as fully as possible the relation between predication and suggestion, between ‘saying’ and ‘meaning’. For then you will at least know what you are trying to do. It is not the freemen of a city who are likeliest to lose their way, and themselves, in its labyrinth of old and mazy streets; it is the simple-minded foreign nihilist making, with his honest-to-god intentions and suitcase, straight for the center, like a sensible man.
Note.—The author expresses his thanks to Mr. de la Mare and to Messrs. Faber & Faber for permission to quote The Listeners.