29 JULY 1972, Page 16

The poetry of the medieval world

Elisabeth Salter

Chaucer and the Making of English Poetry P. M. Kean (Routledge and Kegan Paul 2 vols £6.50) Themes and Images in the Medieval English Religious Lyric Douglas Gray (Routledge and Kegan Paul £4.00)

These cool, soundly-researched books from Oxford on medieval poetry leave the impression that they were born of sympathetic teaching situations rather than of burning convictions: they manage to be both comprehensive and judicious, to avoid both scholarly and critical rancour. Reading them, we are admitted to the pleasure of the well-stocked library and the welltrained mind, asci given constant and practical reassurance that the poetry of a long-past age can be made accessible to learning and reason.

Miss Kean provides, in two volumes an expert, lucid accompaniment to the professional study of Chaucer's "individual achievement" and his "place in a tradition," showing us a poet who draws strongly upon an English inheritance but who is closely and ambitiously involved with the Latin and vernacular traditions of medieval Europe. Mr Gray skilfully introduces the "huge mass of medieval religious lyric poetry" to readers with a taste for understanding the part played by" tradition and convention" in the shaping of these very assorted verses. Both writers are concerned to raise the question of creative intelligence as it operates, sometimes unfamiliarly, in different kinds of medieval poetry, and to administer in easily assimilable form enough learned material to make that operation interesting and acceptable.

The method sounds admirable, and it is, of course, very gratifying to be offered a graver claret instead of the champagne perry which is so often served up by those who would like to persuade us that the medieval world and its poetry is ours for the intoxication. But it is a method which seems to produce better results with minor than major works of art, based as it is upon the assumption that, given knowledge and application, most problems are soluble, most enigmas reducible. The strangeness of a fifteenth century death lyric, or a verse meditation on the Passion can certainly be acknowledged and minimised by reference to their original functions and contexts. Chaucer's Prioresses Tale, with its excess of tears and blood and love can be deftly annotated, so that we resist the temptation "to read an extreme of subtlety into a moment in which the fourteenth century was probably at its simplest and most

sincere." (Kean, ii.209).

There are, though, other moments when Chaucer's verse induces in us an uneasy and exhilarated sense of a most subtle imagination at work, only partly accommodated by medieval forms and conventions of thought. In great poems such as Troilus and Criseyde and the Knight's Tale, his " individual achievement" and his "place in a tradition" are surely characterised by his refusal to be totally explicable in normal medieval terms: both poems, while not positively discouraging the search to discover what reading may have directed his courses of action, do nevertheless bring home quite sharply the impossibility of being certain that we have grasped his intentions. The effects of his major re-casting of two famous Italian poems can be observed, but there is ultimately no way of ensuring that we can account for them. The variousness, of critical approach over the past few years might convince us of the need for honest doubt: Troilus and Criseyde has responded with different answers to different treat

ments — as an embryonic novel of charac ter, as a homily on the fallible nature of human love, as an exposé of the rituals of the courtly life. Its original answers may only be partially recoverable, for our questions may all be partially irrelevant.

Similarly, the dark tapestry of the Knight's Tale, with its elaborate patterns of ceremony and suffering, its tableaux of mali

cious gods and noble men, may be no better revealed to the pencil-light of scholarship than to the unfocused view of sentiment.

Such musings play no part in Miss Kean's assessment of her task as Chaucer's inter preter. And, in fact, if we are convinced, with her, of his extensive and first-hand knowledge of Roman literature (Virgil, Ovid, Seneca and Statius), of his familiarity With a wide variety of philosophical, theological, scientific and iconographical tradi tions, and of his desire to write, for the most part, openly and logically on his chosen themes, there is no reason why the instruments of scholarship will not serve us well: our access to him is really a matter of precise information.

But with all respect, I do not think that this is the poet suggested by the poetry: if it were, we should find fewer readers willing

to risk their ignorance of medieval philosophy for the sake of enjoying Troilus and Criseyde. It is sometimes difficult to recog nise' in Miss Kean's pages the ' translator ' of the Conso/atio Philosophiae who made

such constant use of a French intermediary

to help out his (probably) small Latin. It is also difficult, in the face of the poems, to

accept without a struggle the idea of Chaucer as an artist so often driven by "a single over-riding purpose ", and by a zeal for consistency of theme and attitude. And it is especially difficult to believe that only by using Boethius as a parallel text can we properly understand what his two finest and most moving poems seem to be telling us. If we still need to defend and demonstrate the high status of Chaucer's art, we need not, surely, lose sight of that characteristic energy of his, which does not always work towards coherence and order, and does not spare poet or reader in its struggle to reach some point of reconciliation. The medieval English religious lyric lays very modest claims to anticipate its great counterpart of later centuries: its " place in and, second, to the suggestion that the accused will be penalised in court (through instructions about the adverse inferences' to be drawn) if he has failed to reveal the ground of his defence to the police. Judges ought to be urging the opposite: the exclusion of all out-of-court statements, or silences, of the accused.

After all, if the accused is unwilling to repeat in open court what he is claimed to have said to a police officer, it must be because (a) he never said it, (b) he said it under some compulsion or inducement now removed, or (c) he was entrapped before being afforded sound advice — not the likely predicament of that "large and increasing class of sophisticated professional criminals who . . . . are well aware of their legal rights," which is the special concern of the judges' report. So, also, as Lord Devlin has pointed out, it is " startling " to hear judges — who interpose themselves and counsel to protect the accused in open court, where press and public already offer some protection — now proposing that a man may be convicted because he did not (or so they say) tell the police the full story. I would argue that the right rule, from any viewpoint, was to keep out of court all evidence about what the accused is supposed to have said or not said to the police. That would be a simple, straightforward, enforceable procedure, which (a not insubstantial blessing) would end all the debates about the 'police caution,' the `right to silence,' the Judges' Rules, and the ' voluntariness ' of confessions — what the requirement precisely is or ought to be, and whether it was met in the particular case. But that is not my present point. My shock is, rather, that the judges who participated in the Revision Committee report should have gone so far in abdicating their role, which is not to "bring criminals to book," but, rather, to erect a barrier between the lone accused, on one side, and,+. police, prosecutor and (usually) public, an +1 the other.

It is arguable, of course, that judges are superfluous in criminal cases. That is a Perfectly logical position for a Commisloner of Police to take. Perhaps the police +ught to be trusted to get on with the job putting away criminals without the in zvention of judges and juries, who are obvious hindrances to the efficient working of the process. But judges and juries exist because we do not trust police and Prosecutor, and judges have special powers because we do not altogether trust juries. And, if that is the sound, view, it is nonsense to rewrite criminal procedure in such a Way that the outcome turns on what the Police claim was said, or not said, long before a judge, or even a lawyer, came in. Let the judges of England remember their heritage. Long ago they ceased to be Mere agents of the Crown; they were never instruments of a prevailing majority. Their role is not to give the imprimatur to decisions made elsewhere. On the contrary, courts matter when they stand against an angry public and an impatient Government. This may be such a time. At last, it is not a propritious moment to give the game away. Judges must hear the voice of the people, directly and through their representatives; they must heed it sometimes; but never should join the chorus. Some of the same considerations lead to another caution: while it is high time the British courts became more involved in Fases of public concern, and more creative in their administration of the law, there is, or ought to be, some forbidden territory. One such 'No Trespass' area is the invention of new crimes to catch those who offend against the prevailing morality. Yet only the other day, the supreme judicial authority of the nation, the House of Lords, re-affirmed that power. I refer, of course, to the IT case in which (1) four of the five judges held the publishers of the magazine of that name to have been properly convicted of "conspiring to corrupt public morals" by printing advertisements of homosexuals who indicated their wish to meet others similarly inclined and engage in practices now legal, and (2) a majority of the judges sustained the propriety of a second charge, "conspiring to outrage public decency," quashed here only because the trial court's summing up was defective.

Two incidental points emerged from the speech of Lord Reid, the senior Lord of Appeal in Ordinary in the case. The first is that judge's refusal to follow his own stated view on the impropriety of manipulating the Common Law to create the crime of "conspiracy to corrupt public morals" — a view eloquently put by him ten years ago while dissenting in the Shaw case and to which he expressly still adheres today. Why is Lord Reid willing to leave such a dangerouly wide-ranging weapon in the hands of police and prosecutors and, at least tacitly, concede to judges the power to invent more such weapons, after all he has said against both the general doctrine and the particular crime? Because neither has been abused, he seems to say. Yet, in this very case, a majority of his brethren are going right ahead with inventing the further crime of "conspiring to outrage public decency" as applied to the contents of a book or magazine. And as to the restraint of prosecutors, Lord Reid answers himself in the same speech by noting that a bad law is not defensible on the ground that it would be judiciously administered." The other mystery is why Lord Reid votes to convict if he is convinced (correctly or not) that Parliament left the law alone after the Shaw case only because the Solicitor General assured it that, as a practical matter, this door was now barred. If one is going to brave a "look into Hansard's," at all, it is nonsense to ignore the learning apparently derived, Is it not time British judges felt free to examine Parliamentary debates to ascertain legislative intent (whether the meaning of a statute or of inaction in the face of a court decision)?

These are peripheral matters, however, So is the condemnation of the IT decision which focuses only on the vagueness of a crime that can so easily be stretched to • cover any conduct deemed offensive by any particular combination of prosecutor, jury and judge. The larger question is, Are the judges wholly out of bounds in this and the earlier Shaw case (upholding a charge of "conspiring to corrupt public morals" against the publisher of a " directory " advertising prostitutes' services)? For those who answer '" Yes" (as I do), several temptingly clear propositions have been put forward: (1) Judges ought never to make ', law, full stop (perhaps that is what Lord Reid meant in his dissent in the Shaw case by saying "Where Parliament fears to tread it is not for the Courts to rush in "); (2) Judges ought not make criminal law (for fear that it will be ex post facto, among • other reasons); (3) Judges ought not make law enforcing morals, whether civil or criminal (or, as Lord Devlin recently put it, "It is quite wrong for the judiciary to think they are responsible for the moral health of the community in some way ").

For my part, I wish to fall for none of these temptations.

In my view, the vice of the IT decision and others like it is that it puts judges actively in the business of promoting conformity to the prevailing morality. I recognise that, in some degree, courts are daily involved with that task, each time they sentence a sexual offender or, for that matter, a murderer. For my part, I would remove the sentencing power from judges, who are notoriously incompetent at the job. But, even if things remain as they are, sentencing (without undue lecturing) is a very minor involvement compared to the creative commitment which the IT case implies. The question remains why it is bad for judges to do more than what is strictly required of them to enforce conformity in morals. I answer: because it is dangerous, unnecessary and corrupting.

All power conceded to judges, untouchable as they are, is of course dangerous. Nevertheless, the perils are different, in degree and in kind. A court issuing habeas corpus to command the release of a ' monster ' (say Graham Frederick Young) may provoke an outcry and even expose innocent victims, but this is as nothing compared to the toll — particularised injury to individuals and a diseased body politic — which can come from a series of repressive decrees. Moreover, in a democracy, when courts enforce majority views there is no possible corrective because the Executive and the Legislative branches are presumably applauding.

Needless to say, I am not suggesting that most of the people are usually wrong, or that their preferences, right or wrong, ought not normally to prevail. But that is simply not the task of judges. It is wholly unnecessary to have judges making conformist law. All too easily, the majority can enforce its will, and if it wants help, it can enlist its servants in Whitehall and Westminster. The courts are not needed for this work and history teaches us how dangerous it is to make them agents of the state, whether governed by an autocrat or the sovereign people.

The worst of it is that by indulging themselves in "moral . populism" (to borrow Professor Hart's phrase) the judges may get hooked.' The thing is habit-forming. For judges, preoccupation with illiberal conformity is — or ought to be — going against the grain. But, alas, unlike the leopard, man can change his spots, and what seemed 'unnatural' may become 'second-nature.' This is the real peril: that judges will forget what they are for, to stand against all tyranny, including the tyranny of the majority. The judge who becomes an active instrument of current morality is likely to be less vigilant in protecting the criminal accused, the outcast, the nonconformist. And, in the end, courts cease to be a check on abuse of power, official and popular. As Lord Denning warned almost twenty-five years ago, "freedom depends on the tribunals which decide it."

What then is to be done? One cannot legislatei that courts shall assume their proper function. The judges must do it for themselves. Rude comments from outsiders may help. But what is really needed is more plain talk from insiders. Any takers? Louis Claiborne is a former deputy SolicitorGeneral of the United States, in, which capacity he argued on behalf of the Federal Government before the Supreme Court in many civil rights cases.