Shakespeare and the Law

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Author: Paul Raffield | Gary Watt

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JOBNAME: Shakespeare and the PAGE: 1 SESS: 2 OUTPUT: Wed Aug 13 10:00:06 2008

SHAKESPEARE AND THE LAW In July 2007, the School of Law at the University of Warwick hosted an international conference on ‘Shakespeare and the Law’. This was a truly interdisciplinary event, which included contributions from eminent speakers in the fields of English, history, theatre and law. The intention was to provide a congenial forum for the exploration, dissemination and discussion of Shakespeare’s evident fascination with and knowledge of law, and its manifestation in his works. The papers included in this volume reflect the diverse academic interests of participants at the conference. The eclectic themes of the edited collection range from analyses of the juristic content of specific plays, as in ‘Consideration, Contract and the End of The Comedy of Errors’, ‘Judging Isabella: Justice, Care and Relationships in Measure for Measure’, ‘Law and its Subversion in Romeo and Juliet’, ‘Inheritance in the Legal and Ideological Debate of Shakespeare’s King Lear’ and ‘The Law of Dramatic Properties in The Merchant of Venice’, to more general explorations of Shakespearean jurisprudence, including ‘Shakespeare and Specific Performance’, ‘Shakespeare and the Marriage Contract’, ‘The Tragedy of Law in Shakespearean Romance’ and ‘Punishment Theory in the Renaissance: the Law and the Drama’.

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Shakespeare and the Law Edited by PAUL RAFFIELD AND GARY WATT

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Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213–3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com

© The editors and contributors severally 2008 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below.

Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk

British Library Cataloguing in Publication Data Data Available ISBN: 978–1-84113–825–1

Typeset by Columns Design Ltd, Reading Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall

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Foreword It always gets a big laugh in the theatre, Dick the Butcher’s bright idea, as the Jack Cade rebellion hots up in Shakespeare’s Henry VI Part 2, that the ragged-arsed, would-be class-warriors up from Kent kick off their campaign to redistribute political power in England with a bit of selective assassination. ‘The first thing we do’, suggests Dick, ‘let’s kill all the lawyers’. There’s a kind of monstrous logic to their sense of class injury. They have a point—of sorts—when they notice how even the beasts of England are in the magistrates’ pay, the humblest among them turned into lawyers’ lackeys and used to condemn the king’s humblest subjects: ‘Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment; that parchment being scribbled o’er, should undo a man?’ But moments later, when the little Clerk of Chatham is murdered (‘because he can write and read and cast account’), laughter dies in the theatre. Spectators sit stony-faced as aggro metastasises into anarchy. And then when Cade agrees to the Butcher’s insane idea that ‘the laws of England’ should ‘come out of your mouth’—‘Away, burn all the records of the realm, my mouth shall be the parliament of England’—there’s silence. Maybe England needs her lawyers after all. Staging such double-takes on law, lawyers and the business they conduct occupied William Shakespeare throughout his career. He put trials on stage: most sensationally in The Merchant of Venice (Shylock v Antonio), The Winter’s Tale (the Crown v Hermione), and Henry VIII (husband v wife, state v church, Henry v Katherine). And even more problematically in Richard II (a trial by combat), King Lear (where the mad assizes conducted to arraign Lear’s hard-hearted daughters for kicking the king are presided over by a fool and a bedlam beggar), and Measure for Measure (where the accused, a notorious pimp, asked of his living ‘Is it a lawful trade?’, confounds legal discrimination by blandly answering, ‘If the law would allow it’). He staged legal dilemmas. At the beginning of The Comedy of Errors, the law of Ephesus condemns Egeon, and in A Midsummer Night’s Dream, that of Athens, Hermia. Those death sentences hang over their heads for the entire play. Neighbours go to law in The Merry Wives of Windsor. Legal controversy fuels Henry V (‘May I by right’, Henry demands of his crack legal team, ‘make this claim’ to France?) and Henry VI Part I (where some acrimonious proceeding, ‘nice sharp quillets of the law’, sends the disputants out to the garden where they end their debate by picking red and white roses, and lining up for civil war). Lawyers are mocked in Coriolanus (where a pair of pettifogging ‘strange ones’ are notorious for ‘wear[ing] out a good wholesome forenoon in hearing a cause

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vi Foreword between an orange-wife and a faucet-seller, and then rejourn[ing] the controversy of three pence to a second day of audience’) and in Hamlet (‘Where be his quiddities now, his quillets, his cases, his tenure and his tricks?’ Hamlet asks of a skull). Whether the rule of law will survive or England succumb to anarchy, the ‘muzzle of restraint’ plucked ‘from curb’d licence’ and the ‘wild dog’ let loose to ‘flesh his tooth on every innocent’, is the core subject of the 10 Acts of the two Henry IV plays (where ‘Justice’ is ‘Shallow’ and the serious education at the Inns of Court is lampooned as skirt-chasing down Turnbull Street). Will Prince Hal as king inherit riot from his surrogate dad, the lawless fat Falstaff—or restraint from an adoptive father, the lean Lord Chief Justice? Shakespeare’s fascination with the law is entirely understandable. The art of the actor and the advocate have much in common. Like the Globe stage, the early modern magistrates’ court and the Court of Star Chamber offered performance spaces where, as Feste says in Twelfth Night, ‘the competitors enter’: where stories were told and contested; where language was charged and words worked; where speech, embodied, was action and claims and counterclaims, equally weighted, hung in the air simultaneously; where the next entrance, the next witness might bring into play evidence to explode the entire narrative to date; where tragedy, comedy (and farce) were always potential; and where the stakes were always high. The Elizabethan stage, like the Elizabethan courtroom, recorded the deeply tedious. (Will the magistrate ever get to the bottom of what happened to Elbow’s pregnant wife and her wayward longing for prunes? Is any legal instrument hefty enough to deal with Falstaff ’s poaching and Shallow’s broken hedges?) But the stage, like the courtroom, also debated the culture’s biggest ideas: treason and betrayal, both state and domestic; issues of equity and liability; the relationship between the rigorous enforcement of statutory law and mercy; false witness and corrupt justice (the ‘perilous mouths’, as Isabella in Measure for Measure calls them, that can speak with double tongues); the legal duties of parents to children, husbands to wives, the rich to the poor, the dead to the living. But Shakespeare was never only interested in the civil law. His courtrooms may be set in Venice or Vienna, but the case being tried there is simultaneously being heard in another tribunal, kicked upstairs to a higher court, presided over by the ultimate judge, God Almighty. When Angelo in Measure for Measure daffs aside Isabella’s plea for her brother’s life, hiding behind the impersonality of the legal process to claim that there’s ‘no remedy … / Your brother is a forfeit of the law’, she leaps upon his words, shows why they fail as a defence by instantly translating the secular into divine proceedings and offering the example of God’s son—who might have doomed all mankind to forfeit—as the right model of human judgement: ‘Why, all the souls that were, were forfeit once, / And he that might the vantage best have took / Found out the remedy’. Similarly, both of them twinning secular language with theological meaning, Hermione refers her state trial to the gods for judgement, and Portia urges Shylock to consider that, ‘though justice be thy plea’, ‘in the course of justice, none of us / Should see salvation’. It’s habitually women in Shakespeare who make this turn from civil law to divine

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Foreword vii judgement. It is by acting, impromptu, as advocates, catapulting men out of the closed patriarchal legal system into a bigger domain, that women make their mark, get things done—including effecting happy endings—in Shakespeare’s plays. Given the playwright’s life-long professional interest in the law, it is wonderfully appropriate that practically the closest we can get to Shakespeare the man is among the lawyers. The only time we hear Shakespeare speaking in something like his own voice is in a deposition, recording his testimony in the case of Belott v Mountjoy. (Although to hear his ‘real’ voice in this document would be somewhat naïve: early modern court depositions are formulaic, bearing about as much relationship to unmediated voices then as does a witness statement taken down by a police constable today.) And it is wonderfully appropriate, too, that 400 years on from those first Inns of Court audiences who applauded in-house performances of his plays (The Comedy of Errors at Gray’s Inn, 1594; Twelfth Night at the Middle Temple, 1602; Troilus and Cressida at one or another, ca 1602), Shakespeare is still offering lawyers an ‘edge of witte’ for their ‘braine to grind … on’. This volume collects some of the grindings, papers delivered at the ‘Shakespeare and the Law’ conference held at the University of Warwick in July, 2007. They show lawyers unpacking the law in Shakespeare, and non-lawyers investigating Shakespeare at law. They range across a dozen plays, deal with topics from marriage negotiations to property rights to corporal punishment to the constitutional rights of citizens to be heard in the courts. They think as much about real people as about stage roles, and as much about Shakespeare in the present as about the early modern playwright. They document, in good legal fashion, the richness of this subject, the way Shakespeare ‘means’ by the lawyers, and the lawyers ‘mean’ by Shakespeare. Taken together, they draw one conclusion of the mutuality of the relationship: sic probo. Carol Chillington Rutter Professor of English and Comparative Literary Studies and Director, The CAPITAL Centre, The University of Warwick

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Contents Foreword

v

CAROL CHILLINGTON RUTTER

List of Contributors

xi

Introduction

1

PAUL RAFFIELD AND GARY WATT

I. SHAKESPEARE, MONEY AND THE LAW OF CONTRACT 1 Shakespeare and Specific Performance

5 7

MARK FORTIER

2 Consideration, Contract and the End of The Comedy of Errors

19

ANDREW ZURCHER

II. SHAKESPEARE, WOMEN AND THE LAW 3 The Bawdy Court

39 41

JONATHAN BATE

4 Shakespeare and the Marriage Contract

51

GERMAINE GREER

5 Judging Isabella: Justice, Care and Relationships in Measure for Measure 65 ERIKA RACKLEY

III. SHAKESPEARE AND THE LAW OF LOVE 6 Shakespeare Possessed: Legal Affect and the Time of Holding

81 83

BRADIN CORMACK

7 The Tragedy of Law in Shakespearean Romance

101

KATRIN TRÜSTEDT

8 Law and its Subversion in Romeo and Juliet

119

DANIELA CARPI

IV. JUSTICE AND THE ROYAL PREROGATIVE 9 ‘The King is a Thing’: the King’s Prerogative and the Treasure of the Realm in Plowden’s Report of the Case of Mines and Shakespeare’s Hamlet

135

137

CAROLYN SALE

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x

Contents

10 Inheritance in the Legal and Ideological Debate of Shakespeare’s King Lear

159

GIUSEPPINA RESTIVO

V. VIOLENCE, THE STATE AND THE CITIZEN 11 Punishment Theory in the Renaissance: the Law and the Drama

173 175

HARRY KEYISHIAN

12 Terrorists and Equivocators

185

IAN WARD

13 ‘Terras Astraea reliquit’: Titus Andronicus and the Loss of Justice

203

PAUL RAFFIELD

14 Titus Andronicus vs Le More Cruel and Les Portugais Infortunés: Humiliation, Punishment and Violence in the Shakespearean and French Theatre of the Late Sixteenth and Early Seventeenth Century 221 CHRISTIAN BIET

VI. THE MERCHANT OF VENICE AND THE INFINITE MEANINGS OF ‘LAW’ 15 The Law of Dramatic Properties in The Merchant of Venice

235 237

GARY WATT

16 Shylock in Transylvania: Anti-Semitism and the Law in East Central Europe

253

ISTVÁN POGÁNY

17 Shylock as a Politician

271

ANTON SCHÜTZ

18 The Concept and Performance of ‘The Code’ in The Merchant of Venice

289

RICHARD H WEISBERG

Index

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Contributors Jonathan Bate, University of Warwick. Professor of Shakespeare and Renaissance Literature at the University of Warwick and a Governor and Board member of the Royal Shakespeare Company. His many books include Shakespeare and Ovid (Oxford University Press, 1993) and The Genius of Shakespeare (Oxford University Press, 1997). He is the editor of ‘The RSC Shakespeare’ edition of William Shakespeare’s complete works (Macmillan, 2007). He was awarded a CBE in the Queen’s 80th Birthday Honours ‘for services to Higher Education’. Christian Biet, Université de Paris-X, Nanterre. Professor in Performing Arts, Theatrical and Drama Aesthetics and French Studies at the University of Paris-X Nanterre, and the Institut Universitaire de France. He is Permanent Visiting Professor to New York University. His many books include Moi, Pierre Corneille (Gallimard, Découvertes, 2006); Qu’est-ce que le théâtre? (with Christophe Triau) (Gallimard, Folio essais inédit, 2006); Théâtre de la cruauté et récits sanglants (France XVIe–XVIIe siècle) (Robert Laffont, Bouquins, 2006). Daniela Carpi, University of Verona. Professor of English Literature at the Faculty of Foreign Literatures, Department of English Studies, University of Verona. Her books include In Limine. Cultura ed enigma (Firenze, Alinea, 1997); Literature and Visual Arts in the Twentieth Century (Bologna, Re Enzo, 2002); Why Plato? The Influence of Plato on Twentieth Century English Literature (Heidelberg, Winter, 2005). Her edited collections include Shakespeare and the Law (Ravenna, Longo, 2003); Property Law in Renaissance Literature (Frankfurt am Main, Peter Lang, 2005); and The Concept of Equity: an Interdisciplinary Assessment (Heidelberg, Winter, 2006). Bradin Cormack, University of Chicago. Associate Professor of English at the University of Chicago. In addition to essays on Shakespeare’s poetry and drama, he is author of A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509–1625 (2008). He is also co-author of Book Use, Book Theory: 1500–1700, and co-editor of the forthcoming volume, The Forms of Renaissance Thought. Mark Fortier, University of Guelph, Ontario. Director of the School of English and Theatre Studies at the University of Guelph, Ontario, Canada. He is the author of Theory/Theatre: an Introduction (1997, 2002) and The Culture of Equity in Early Modern England (2005), and co-editor of Adaptations of Shakespeare (2000) and Royal Subjects: Essays on the Writings of James VI and I (2002). Germaine Greer. Emeritus Professor of English and Comparative Studies at the University of Warwick. Her first book, The Female Eunuch (1969), remains one of

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xii Contributors the most influential texts of the feminist movement. Her most recent book, Shakespeare’s Wife (2007) offers a radical re-reading of Shakespeare’s married life. Harry Keyishian, Fairleigh Dickinson University. Professor of English at Fairleigh Dickinson University in Madison, New Jersey, and Director of Fairleigh Dickinson University Press. His published books include The Shapes of Revenge: Victimization, Vengeance, and Vindictiveness in Shakespeare (Humanities Press, 1995) and Screening Politics: the Politician in American Movies (The Scarecrow Press, 2003). István Pogány, University of Warwick. Professor of Law at the University of Warwick. His books include Righting Wrongs in Eastern Europe (Manchester University Press, 1997) and The Roma Cafe: Human Rights and the Plight of the Romani People (Pluto, 2004). Erika Rackley, University of Durham. Lecturer in the Department of Law at the University of Durham. She writes on judicial diversity and the woman judge. Her essay on ‘Shakespeare’s Portia as a Continuing Metaphor for the Woman Lawyer’ won the Victoria Fisher Memorial Prize in 2001. Paul Raffield, University of Warwick. Associate Professor in the School of Law at the University of Warwick. Author of Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (Cambridge University Press, 2004). In addition to his academic career, Paul continues to work as an actor and director. He is co-editor (with Gary Watt) of the journal, Law and Humanities. Giuseppina Restivo, University of Trieste. Professor of English Literature at the University of Trieste, where she is Deputy Head of the Department of Foreign Literatures, Comparative and Cultural Studies. Her books include La nuova scena inglese (Torino, Edward Bond/Einaudi, 1977) and Le soglie del postmoderno: ‘Finale di partita’ di S. Beckett (Bologna, Il Mulino, 1991). Carol Chillington Rutter, University of Warwick. Professor of English and Director of the CAPITAL Centre (Creativity and Performance in Teaching and Learning) at Warwick and a Trustee of the Shakespeare Birthplace Trust. Her most recent book is Shakespeare and Child’s Play: Performing Lost Boys on Stage and Screen (Routledge, 2007). She is editor of the Manchester University Press Shakespeare in Performance series and co-author of Henry VI in Performance (2006). In 2007, she was honoured with a Warwick Award for Teaching Excellence. Carolyn Sale, University of Alberta. Assistant Professor in the Department of English and Film Studies at the University of Alberta. She is currently working on a book, Common Properties: the Early Modern Writer and the Law, 1546–1628. Her

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Contributors xiii recent publications include ‘The “Roman Hand”: Women, Writing and the Law in Att.-Gen. v. Chatterton and the Letters of the Lady Arabella Stuart’ (English Literary History, 2003) and ‘Eating Air, Feeling Smells: Hamlet’s Theory of Performance’ (Renaissance Drama, 2006). Anton Schütz, Birkbeck College, London. Senior Lecturer in Law at Birkbeck College, London. He holds a Doctorate in Law from the University of Vienna and a post-graduate degree in Social Anthropology from the École des Hautes Études en Sciences Sociales (Paris). His recent published work includes ‘Structural Terror: a Shakespearean Investigation’ in Peter Goodrich, Lior Barshack and Anton Schütz (eds), Law, Text, Terror (London, Glasshouse Press, 2006) 71–92. Katrin Trüstedt, European University, Viadrina Frankfurt. Assistant Professor of Western European Literatures at the European University, Viadrina Frankfurt. Her published work includes the article ‘Secondary Satire and the Sea-Change of Romance’ (2005) 17(3) Law and Literature 345. Ian Ward, Newcastle Law School. Professor of Law at Newcastle Law School, University of Newcastle-upon-Tyne. His books include Law and Literature: Possibilities and Perspectives (Cambridge, 2005); Shakespeare and the Legal Imagination (Butterworths, 1999); and most recently The English Constitution: Myths and Realities (Intl Specialized Book Service Inc, 2004). Gary Watt, University of Warwick. Reader and Associate Professor in Law at the University of Warwick. His books include Trusts and Equity (Oxford University Press, 2003). He is co-editor (with Paul Raffield) of the journal, Law and Humanities. Richard H Weisberg, Cardozo Law School, Yeshiva University. Floersheimer Professor of Constitutional Law at the Cardozo Law School, Yeshiva University, New York City. His contributions to the field of Law and Literature include The Failure of the Word (Yale University Press) and Poethics: and Other Strategies of Law and Literature (Columbia University Press). Andrew Zurcher, University of Cambridge. Fellow in English at Queens’ College and a Newton Trust Lecturer in the Faculty of English, Cambridge. He is currently writing Shakespeare and the Law for the Arden Shakespeare.

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Introduction PAUL RAFFIELD AND GARY WATT

HE PAPERS IN this collection were delivered at the conference on ‘Shakespeare and the Law’ held at the University of Warwick in the summer of 2007. We are grateful to the University of Warwick, and especially to the School of Law and the CAPITAL Centre, for bringing the conference to fruition, and to Hart Publishing Ltd for publishing this book. We are indebted to our conference speakers, including those whose work is represented here; and we are especially grateful to Professor Carol Rutter whose Foreword to this collection captures the essence of the project and explains why scholars find endless stimulation at the intersection of Shakespeare and the Law. The conference provided an ideal opportunity for scholars from different academic disciplines to come together and share alternative perspectives at this fascinating interface. The lawyers amongst us have learned to listen to the languages of other schools of learning. The non-lawyers have, we hope, discovered that not every lawyer has sharpened their mind by narrowing it. Through open discussion, and conference in the true sense of the word, we have begun to ‘‘piece out our imperfections’’, but the conference and this book are early steps on the long path to discovering the potential for studies in law and the humanities. Law and Humanities scholarship is generally more advanced outside of law schools than within, and in law schools it is less advanced in the United Kingdom than in the United States, but we hope that the new journal, Law and Humanities (also published by Hart), will in due course lead us to broader and deeper interdisciplinary engagement. No doubt there will still be those within the legal academy who cannot imagine a place for arts and humanities within law schools and legal scholarship. Perhaps they will complain that interdisciplinary scholarship of the sort we envisage falls within no discipline and in between all. We disagree, but it is a danger to which we are constantly alert. There will also be those who say that to engage with the humanities is to abandon the true calling of law. The same complaint was levelled at the law-writers (the so-called ‘‘noverints’’) in Shakespeare’s time. Thus, Thomas Nashe objected that:

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Paul Raffield and Gary Watt It is a common practise now a daies amongst a sort of shifting companions, that runne through every arte and thrive by none, to leave the trade of Noverint whereto they were borne, and busie themselves with the endeavors of Art, that could scarcelie latinize their necke-verse if they should have need.1

It is conjectured that Nashe might even have written these words with Shakespeare in mind. We would respond to any contemporary repetition of the complaint, that there should be more ‘‘shifting companions’’ in the legal academy and less consensus. We did not seek consensus in this collection, but we have been pleased to discover certain themes in common. In Part I, ‘Shakespeare, Money and the Law of Contract’, Mark Fortier and Andrew Zurcher explore Shakespeare’s sensitivity to two opposing and connected concerns: on the one hand the specificity of things we bargain for, and on the other hand our performance in conjunction with the people we bargain with. These themes are taken up in Part II, ‘Shakespeare, Women and the Law’, in the specific context of the marriage contract. Jonathan Bate acknowledges that the trials staged in Shakespeare’s plays tend to fuse together the multiple jurisdictions of the age, but argues that Shakespeare’s audience would have had proceedings in ‘the bawdy court’ in mind when they witnessed ‘matrimonial’ trials of the sort staged at the climax of All’s Well That Ends Well (he notes that Shakespeare appears to have written this play contemporaneously with his real-life involvement in a friend’s matrimonial proceedings). In ‘Shakespeare and the Marriage Contract’, Germaine Greer demonstrates the ways in which negotiation by go-betweens, well known to be central to royal marriages in early modern Europe, was also highly significant to the ‘world without end bargain’ contracted between ordinary people. The chapter reveals fascinating historical detail of how friends performed the role of go-between in marriages within Shakespeare’s close circle. Erika Rackley’s examination of ‘Justice, Care and Relationships in Measure for Measure’ portrays Duke Vincentio as a man who, from a position of detachment, eventually learns the importance of negotiating relationships and performing the role (in some ways akin to that identified in Germaine Greer’s chapter) of go-between or match-maker. Jonathan Bate sees the final Act of Measure for Measure, with its mesh of sexual and matrimonial allegations, as another scene reminiscent of proceedings in ‘the bawdy court’. In Part III, ‘Shakespeare and the Law of Love’, Bradin Cormack explores the pairing of two distinct ways of craving law; the one a technical pursuit, the other a sensual desire. He proceeds from the example of Shylock, whose appetite was sickened by a surfeit of that which he desired, to demonstrate how even the technicality of property law captures longing and desire through the device (or devise) of future interests and expectations. Katrin Trüstedt sheds further light 1 Letter ‘To the Gentlemen Students of both Universities’ in the Preface to Robert Greene, Menaphon (c 1589).

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Introduction 3 upon the pairing of law and lust. She shows how Shakespeare breaks down the presumed opposition of law to lust and lust to law by demonstrating the presence of each in the paradise of the other. In both chapters there is a sense of law harnessing lawless forces, as Prospero did, in preference to rejecting them outright. Daniela Carpi’s chapter sees a similar dynamic at work in Romeo and Juliet, especially in the dual nature of the Capulets’ ‘feast’ which, being at once carnal and a ‘solemnity’, is the perfect metaphor for the marriage contract. The Prince of Verona presides over a potential Eden, but his authority is overtaken by events and in the end it is the natural course of history rather than his legal authority which shapes the new peace. Part IV, ‘Justice and the Royal Prerogative’ and Part V, ‘Violence, the State and the Citizen’ both carry a similar message. In Part IV, Carolyn Sale’s chapter ends with an invitation to learn the lesson of Hamlet and to apply it to the problem, present in our own time, of sovereign seizure of the treasures of the earth. The lesson is that the person of the monarch and the treasure of the realm are one and the same by prerogative right; the thing to be learned is that just because it is a prerogative does not mean that it signifies a right. Giuseppina Restivo identifies in King Lear a lesson on the dangers inherent in the opposite state—that of total abandonment of the prerogative. She identifies the trust, developed in the Court of Chancery, as an appropriate middle way between the transfer of royal wealth and the retention of authority. In Part V, ‘Violence, the State and the Citizen’, Harry Keyishian examines ‘Punishment Theory in the Renaissance: the Law and the Drama’ and argues that only the audience has the power to produce a just outcome, for only the audience has the capacity to look mercifully upon a character whom the judge is bound to punish. In this sense, the audience might be said to break the cycle of punishment and offence (offence leading to excessive punishment, which is itself offence). Christian Biet imagines the potential to break the cycle of humiliation and vengeance, which begins with offence, moves to excessive retaliation and then to new revenge and with it a fresh offence. The cycle, exemplified in Titus Andronicus, is a juridical and theatrical rule, a Talion law, but it is not an inevitability. Le More Cruel and Les Portugais Infortunés perform and present means of escape to a better world, which might have been. Paul Raffield’s chapter mourns the loss of precisely that: the stage tragedy of Titus Andronicus reflects the real tragedy of the time and place into which Shakespeare brought it forth. London was lauded by Elizabethan writers as the new Troy. In reality, by the end of the sixteenth century Justitia had fled the earth and, in pursuit of justice, hapless citizens may as well have joined forces with Titus in firing their requests into the heavens. Ian Ward’s chapter emphasises the need to look beyond the sphere of vengeance if we are to find justice. In large part, our reluctance to engage with justice is predicated on our willingness to listen to the rhetoric of prejudice. There is no need to reach out for justice if we are content with pre-judgement. The danger emerged in the Gunpowder Plot, not just in the actions of the plotters, but also in the reaction of

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the Protestant powers. So too, the current terrorist danger lies not only in the terrorist act, but in the cycle of violence that responds to and reinforces it. The final part, ‘The Merchant of Venice and the Infinite Meanings of “Law”’ is devoted to the most obviously ‘legal’ of Shakespeare’s plays, The Merchant of Venice. The play draws together many of the themes treated in earlier parts of this book. There are merchant contracts and marriage contracts. There is law in paradise and craving for law. There is also the familiar cycle of offence and excessive retaliation, coupled with an apparent absence of proportionate justice in the machinery of state. There are even lessons about the abuse of sovereign and paternal prerogative and the dangers that ensue when a person is identified with inanimate wealth. Gary Watt argues that the major dramatic ‘properties’ in the play operate as synecdoche (they obey the dramatic law under which the part represents the whole) and that the same dramatic law operated, by means of the same ‘props’, in the law of England of Shakespeare’s time. István Pogány emphasises the contemporary significance of what he calls the ‘generous humanistic vision’ in the play, the ‘strand’ that resists anti-Semitism. The struggle to see that strand explains a history of reluctance to stage the play in the countries of Eastern and Central Europe—those countries that suffered the Holocaust on the most horrific scale. Anton Schütz considers ‘Shylock as a Politician’. He argues that the classical world, in which the polis was co-extensive with the people, has fractured. The world of the play is a world in which the characters are disjointed. Shylock loses in this new world, when he falls into the rifts that modernity has cut into old certainties. The final word goes to Richard Weisberg. His chapter brings this collection full circle with its focus upon the Codes that compete throughout the play. The Private Code of the bond contract, The Testamentary Code of Portia’s father’s Will and The Public Code of the Alien Statute all have their moments of triumph; but ultimately, victory belongs to the only Code that Portia is not willing to subvert: The Marriage Code. If the legal themes of Shakespeare’s works reflect acquired knowledge of English law, gained probably from friends, relatives and acquaintances rather than from formal study of substantive law itself, they also demonstrate a crucial feature of Elizabethan jurisprudence, which is that government was conducted and represented as theatre. If there is a common theme to all the chapters in this collection, it is a shared understanding that early modern poetic drama was uniquely placed to depict the psychological complexities of autonomous individuals and their constitutional, political and contractual relationships with the emergent nation-state and with each other. An edited collection of conference papers can never aspire to comprehensive coverage of any field of scholarship, still less a field as wide-ranging as Shakespeare and the Law; but our distinguished colleagues have produced a stimulating and diverse range of papers. If we chance in them to hear the voice of Shakespeare somewhat clearer than before, and touch our humanity as much as our law, we will have achieved what we set out to achieve. Whether we have succeeded or not is for the reader ‘kindly to judge’.

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I

Shakespeare, Money and the Law of Contract

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1 Shakespeare and Specific Performance MARK FORTIER

ET ME BEGIN self-indulgently with two stories featuring myself. The first concerns my first week as a law student. I had gone back to law school after a fruitless attempt to find permanent work as a scholar of English literature. In my contracts class, the professor, introducing us to the notion of remedies, asked what we thought might or should happen if, for instance, a person were offered a tenure-track job by a university which then reneged on the offer. Given my own investment in the academic job search, I indignantly declared that the university would have to honour its promise and hire the person. An academic job, given how hard to come by, how rare and valuable in itself, how coveted, was a commitment that could not be taken with anything but the utmost seriousness. The second story goes back into my early childhood—I must have been around six at the time. I was watching my favourite genre of television show, a western, and this particular episode involved two men with bandanas over their faces holding up a stagecoach at gun-point. They took the strongbox before sending the coach and its driver on their way. Then they shot open the lock on the strongbox and inside found it stuffed full of bills and coins. Seeing this, they began to hoot and yelp with joy. Here my childish confusion arose: I could understand the allure of holding up the stagecoach—that seemed like great fun, the guns and the disguise—but what was the big deal about the money? What I was encountering in these moments is the contrast between a fungible and liquid money-based value system and one that invests deeply in the worth of things in themselves: hold-ups or tenure-track jobs, for instance. The common law, I was to learn, generally works in the realm of the fungible. The standard form of compensation for loss at the common law is an award of damages: a sum of money given as recompense. Whatever is lost, what comes back is money. It is only in rare and special situations that the equitable remedy of specific performance is employed. Specific performance assumes that some

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particular thing (usually real estate or a rare object)is of such irreplaceable value that only the delivery of the thing itself is an adequate remedy. As far as I can tell, there is relatively little scholarship on Shakespeare and specific performance. Specific performance is not a term used by Shakespeare. It has been asserted that specific performance is what Shylock seeks from the court in The Merchant of Venice.1 According to Holdsworth, specific performance, although relatively unregularised and unnamed, was at work in English equity courts since Henry VI,2 and according to Pollock and Maitland, since the thirteenth century.3 Baker suggests that specific performance was part of the Chancery practice growing rapidly during the fifteenth and sixteenth centuries.4 Edward Coke, not surprisingly, in the early seventeenth century fought against Chancery’s imposition of specific performance.5 If one wanted to locate the pound of flesh legally and historically, I would also suggest looking at the discussion of the bond, a word that is used by Shakespeare, in Sokol and Sokol’s work on Shakespeare and the law, since a bond, it seems, could entail a similar imperative of actual performance.6 But I am not deeply concerned here with the history or technical specifics of court practices. My study is more a reading than it is historical or legal research. Shakespeare’s courts are often at least in part fantastical and ahistorical. In this chapter I use the difference between money-based damages and valueladen specific performance, taken in an expansive, somewhat metaphorical sense—much as the technical legal term ‘fraudulent conveyance’ is taken by Charles Ross to open up an understanding of more varied types of running off with things or the philosophical and legal notion of equity is aligned by Kathy Eden with sympathy and fellow-feeling in literature7—to explore questions of value and recompense in the world of Shakespeare’s plays. Although I take some comfort from Holdsworth’s assertion that specific performance in law and equity was very loosely formulated in Shakespeare’s time, let this be a warning that I will be exploring Shakespeare and law in a not particularly rigorous or technical way. Moreover, law acts for me here mainly as a heuristic entrance into more general concerns of value and investment, to which my approach is sweeping if not foolhardy. I should also say that I am working here in the ‘Shakespeare as thinker’

1 Daniel J Kornstein, Kill All the Lawyers?: Shakespeare’s Legal Appeal (Princeton, Princeton University Press, 1994) 71. 2 WS Holdsworth, History of English Law (7th rev edn, London, Methuen, 1956–66), vol I, 457. 3 Frederick Pollock and Frederick William Maitland, The History of English Law Before the Time of Edward I (2nd edn, Cambridge University Press, 1968) vol II, 106. 4 JH Baker, An Introduction to English Legal History (3rd edn, London, Butterworths, 1990) 112 et seq. 5 Ibid 140. 6 BJ Sokol and Mary Sokol, Shakespeare’s Legal Language: a Dictionary (London, The Athlone Press, 2000) 36–41. 7 Charles Ross, Elizabethan Literature and the Law of Fraudulent Conveyance: Sidney, Spenser, and Shakespeare (Aldershot, Ashgate, 2003); Kathy Eden, Poetic and Legal Fiction in the Aristotelian Tradition (Princeton, Princeton University Press, 1986).

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mode, although the thinker who emerges is somewhat different from the one presented in AD Nuttall’s recent Shakespeare the Thinker.8 My beloved, my crown, my ring, my handkerchief, my honour, my chastity, my island, my revenge, my Indian boy: Shakespeare’s plays are filled with things invested with inherent, irreplaceable and consuming value. Like much imaginative literature (think of the demand for the first-born child in Rapunzel or Rumpelstiltskin) Shakespeare’s world is one in which specific values and compensation play a much larger role than does money, thus putting literature at some variance from the realities of life and law as we know them within capitalism. This may in part be simply because highly personalised investments make for better stories. We are, usually, more engaged by the quest for the girl than that for the stock options. I wish in this chapter, however, to explore the complex ramifications, both wondrous and destructive, of an emotional and legal economy based so deeply in specific values and performance. Through a look at various moments in a number of Shakespeare’s plays, I will argue that Shakespeare’s work is as much an expression of horror as delight with the ramifications of a world based in a deep investment in specific things. This is not to say that story-lines grounded in monetary value do not exist in Shakespeare’s time or our own. Think of what we might call the ‘tort flick’ (The Verdict or Erin Brockovich) in which bodily harm is compensated for, relatively happily, by large amounts of money; or endless heist stories (as my stagecoach robbery show unfortunately turned out to be) in which the object of desire is gold bars or endless neat packets of paper bills. Sometimes such stories blindly buy into the value of wealth acquisition; occasionally they look more askance. So, some stories of money-seeking are deep critiques of seeking money. Indeed, in Shakespeare’s time there is Ben Jonson’s Volpone, in which the Fox hails gold as ‘the world’s soul, and mine’. He continues: More glad than is The teeming earth to see the longed-for sun Peep through the horns of the celestial ram, Am I, to view thy splendour, darkening his.9

Here we have what Peter Womack calls a ‘parodic apotheosis of money’,10 a scathing critique of the excesses of capital. There is a striking example of anti-monetary thinking in Edmund Spenser’s discussion of the Brehon Law in Ireland, whereby a culprit could atone for a crime, even murder, by paying compensation to the victim or the victim’s family. How horrible, it is argued, to reduce human life to monetary recompense.11 8

AD Nuttall, Shakespeare the Thinker (New Haven, Yale University Press, 2007). Ben Jonson, Volpone (Arlington Heights, Harlan Davidson, 1958) 1.1.3–6. 10 Peter Womack, Ben Jonson (Oxford, Basil Blackwell, 1986) 74. 11 Edmund Spenser, ‘A View of the Present State of Ireland’ in Spenser’s Prose Works: the Works of Edmund Spenser (Baltimore, Johns Hopkins University Press, 1949) vol IX, 47. 9

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Karl Marx was quick to point to similar critique in Shakespeare, citing Timon’s rant against gold: Thus much of this will make Black white, foul fair, wrong right, Base noble, old young, coward valiant . . . . . . This yellow slave Will knit and break religions, bless th’ accurs’d, Make the hoar leprosy ador’d, place thieves And give them title, knee, and approbation With senators on the bench. This is it That makes the wappen’d widow wed again; She, whom the spittle-house and ulcerous sores Would cast the gorge at, this embalms and spices To th’ April day again.12

For Marx, and for Marx’s Shakespeare, money is the distorting and confounding of all human and natural qualities . . . Money, then, appears as this distorting power both against the individual and against the bonds of society . . . It transforms fidelity into infidelity, love into hate, hate into love, virtue into vice, vice into virtue, servant into master.13

Money is the root of evil. The question is how sustained are such sentiments in Shakespeare’s work? I would say not very. A related anti-monetary sentiment is expressed by the somewhat wacky Romeo when paying the apothecary for poison: There is thy gold, worse poison to men’s souls, Doing more murther in this loathsome world, Than these poor compounds that thou mayest not sell. I sell thee poison, thou hast sold me none. Farewell! Buy food, and get thyself in flesh. (Romeo and Juliet, 5.1.80–4)

Romeo is just being a class-bound twit here; he obviously doesn’t know what it is to go hungry. Our sympathies and understanding are with the apothecary, just as they are more with various poor and desperate hired assassins (in Richard III, Macbeth, King Lear) than with the well-heeled villains who employ them. These are characters who, if real, might have sympathised with the practicality of Brehon Law. The truth is Shakespeare’s work has only a limited interest in criticising a money economy. Money is not that bad and poverty is worse. I once

12 William Shakespeare, Timon of Athens: the Riverside Shakespeare (Boston, Houghton Mifflin, 1974) 4.3.28–42. All references to Shakespeare are to this edition. 13 Marx and Engels on Literature and Art (Moscow, Progress Publishers, 1978) 135–9.

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had a German acquaintance of working-class background who would say, ‘Gelt stinkt nicht’—money doesn’t stink. A too simplistic reading of Shakespeare, then, on two counts, would see him rejecting, as in Timon of Athens, a system whereby money replaces and perverts all values to stand for the inherent and irreplaceable values of specific things themselves. A very different and key moment comes in Troilus and Cressida, when Priam reads an offer to settle that has come from the Greeks: After so many hours, lives, speeches spent, Thus once again says Nestor from the Greeks: ‘Deliver Helen, and all damage else— As honour, loss of time, travail, expense, Wounds, friends, and what else dear that is consum’d In hot digestion of this cormorant war— Shall be strook off ’. (2.2.1–6)

The losses listed here read like the heads of damage in a twenty-first century tort action: economic loss, loss of reputation, loss of opportunity, loss of companionship, property damage, bodily harm: all normally compensated for by money. Yet here all will be forgiven if one specific thing—the return of Helen—is performed. And this, even given the cost, is the one thing the Trojans refuse to do. There is something terribly wrong with this picture. As Thersites declares, all the argument is a whore and a cuckold (2.3.72–3). The war for Helen is one of the most striking examples of specific performance in Shakespeare’s work, but it functions, as Volpone’s endless thirst for wealth does, as a scathing critique of the appalling value system it embodies, not a monetary system but brutal masculinist competition in the guise of honour. Other prominent moments of specific performance in Shakespeare question to one degree or another such a deep investment in the particular. There is Romeo’s attachment to Rosaline: Benvolio argues with Romeo unsuccessfully that he should exchange one woman for another, but soon Rosaline’s uniqueness and the non-fungibility of Romeo’s need for her are overturned in an instant by the entrance of Juliet. The environmentally destructive struggle of Titania and Oberon over the Indian boy similarly melts into nothing. What was the fuss? Moreover, forms of ‘affection’—love or revenge—even, or especially, when firmly held, are often highly negative in Shakespeare. Love, in A Midsummer Night’s Dream, is variously called bewitching, feigning, stealing, fantasy, cunning, crazy, idolatry, dream, confusion, sickness, folly, hell, blind, perjured, painful, mad, hateful, unreasonable. Othello loves too well, to the destruction of those around him, and Iago’s investment in revenge sweeps all other interests out of its way. Affection breeds chaos and cruelty. One thing to note here is that Shakespeare’s specific investments are not, as in Marx, in the use-value over the exchange-value of things. In A Portrait of the Artist as a Young Man, Stephen Dedalus rejects the idea that the female form is

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beautiful because it is good for bearing children.14 Shakespeare appears to be with Dedalus on this one. Love is sickness and folly and lacking in much ultility. Its value comes from something more like social and psychological cathexis and fetishisation. More rarely, as in the sacrifice of Alarbus at the beginning of Titus Andronicus, value derives from religion, or religious barbarity. At times, specific performance in Shakespeare resembles potlatch, a psycho-ritualistic compulsion to destroy.15 The conflict associated with specific performance is often between money and such cathexis, between exchange value and fetish value. In many cases (the hired assassin, the apothecary) money is use-value. To this extent, what I am calling specific performance in Shakespeare differs from specific performance at law (at least as we know it today) where the determining factor is putatively on the rareness or uniqueness of the thing itself.16 In Shakespeare it has much more to do with the emotional investment of the one who desires: as Bassanio says of the ring, ‘There’s more depends on this than on the value’(The Merchant of Venice, 4.1.434). The value is in the passionate investment as much as or more than in the thing itself. As noted earlier, The Merchant of Venice is one of Shakespeare’s major presentations of what I am loosely calling specific performance. Foremost, there is the pound of flesh, but there are also the three caskets, the rings, and the conversion of Shylock. It is made clear repeatedly that the pound of flesh cannot be replaced with any award of damages. Portia suggests offering twice the 3,000 ducats, doubling that and trebling that again (36,000 ducats, by my math), but Jessica reports hearing Shylock say he would reject 20 times the sum (60,000 ducats) (3.2.284–300), and Shylock declares, ‘If every ducat in six thousand ducats / Were in six parts, and every part a ducat / I would not draw them, I would have my bond’ (this would come, I calculate, to 36,000 ducats) (4.1.85–7). At any rate, money is just a pointless cipher, and specific performance is presented as the only option (even though there is no reason for Shylock’s interest in the pound of flesh except hate and loathing; the flesh itself is worthless). This is a remarkable example of a thing itself that cannot be replaced with money. Money, in this instance, just won’t cut it. However, specific performance here is, to begin with, strikingly cruel and murderous. The thing desired is of no inherent value, yet it is invested with deep personal needs of revenge and hatred. But, finally, Shylock’s drive only goes so far. He could have taken the pound of flesh and suffered the consequences of drawing blood, but at this point he suddenly becomes willing to take the money. As such, this is a wonderfully rich

14

James Joyce, A Portrait of the Artist as a Young Man (Harmondsworth, Penguin, 1968) 208–9. My analysis here is not the same as, but does not conflict with René Girard’s notion of mimetic desire in A Theatre of Envy: William Shakespeare (New York, Oxford University Press, 1991). 16 On a historical note, Holdsworth asserts that it was not clear until the eighteenth century that specific performance depended on the quality of the thing itself (at 457). 15

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and paradoxical example of specific performance: beyond money, horrible, driven by the strongest human feelings, yet ultimately melting into thin air, so that ducats and damages carry the day. The pound of flesh as specific performance is echoed in the play by the three caskets and the rings. Portia is to be gained as wife not by wealth (although for some reason Bassanio borrows the 3,000 ducats for this venture), not by anything but the right choice in a very puzzling game. The first casket entails what would appear to be one of Shakespeare’s occasional and half-hearted diatribes against money and wealth. But ‘All that glisters is not gold’ (2.7.65) on its face is a rejection of that which glisters but isn’t gold rather than of gold itself. Similarly, the second casket rejects not silver but things ‘Silver’d o’er’ (2.9.69). Finally, the third celebrates the one who chooses not by the view but proposes no alternative theory of value. So all three caskets deal only with the rejection of visible surface but say nothing about any positive criteria of choice. It is as if this specific performance has nothing at its heart, is nothing but an elaborate shell game. Similarly, the rings given by Portia and Nerissa are invested with symbolic value, the loss of which presages, we are told, the end of love. As reward for their work in court, the disguised wives request these rings from their husbands. Bassanio tries to treat the ring as fungible: ‘The dearest ring in Venice will I give you, / And find it out by proclamation; / Only for this I pray you pardon me’. (4.1.435–7) The husbands balk at this specific performance but ultimately give in. When called on the loss, however, they confess and are forgiven, and so the symbolic over-investment in the rings is swept aside. Finally, there is the tawdry matter of Shylock’s conversion to Christianity, packed together as it is with the mostly pecuniary demand that he cede his estate to the man who has ‘stolen’ his daughter. Everything is demanded under threat that otherwise the Duke will rescind the pardon on Shylock’s life that he has just granted. The conversion, therefore, will not be a product of religious belief, deeply held or otherwise, but done under duress. There is absolutely no indication that inside Shylock will ever be anything but a Jew. Nor is there any indication that Christian society will ever think of him as other than a Jew. Rather than an attempt to welcome him and save his soul, the conversion seems to be another forfeiture and a punishment; and Shylock, bless his soul, would rather live and prosper than be seen to adhere to his faith. Let us look at one more example of specific performance in Shakespeare, this time a hypothetical one. In Othello, the evening of her murder, Desdemona sits with Emilia and poses a question: would Emilia be unfaithful to her husband for all the world? In other words, what would be the value of that specific performance? Emilia answers, ‘The world’s a huge thing; it is a great price for a small vice’. She continues:

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Marry, I would not do such a thing for a joint-ring, nor for measures of lawn, nor for gowns, petticoats, nor caps, nor any petty exhibition; but for all the whole world— [’ud’s pity], who would not make her husband a cuckold to make him a monarch? (4.3.70–75)

And finally: ‘Why, the wrong is but a wrong i’ th’ world; and having the world for your labour, ‘tis a wrong in your own world, and you might quickly make it right’. (4.3.68–82) Here Emilia relativises female chastity in several ways. First, she deflates the idea that chastity is priceless, by taking literally and seriously the terms of the bargain Desdemona proposes. She weighs the bargain objectively and carefully. The world is more than a ring, or a pound of flesh. Then she recognises that chastity is of notable but limitable worth: more than gowns, petticoats and caps, but not than all the world. Finally, she recasts the value of chastity as social rather than absolute, something made and unmade in the world. Hers is a complex sceptical attack on the unquestioned investment in specific values. Elsewhere, as with Emilia, the failure and folly of specific investments casts Shakespearean subjectivism in a tenuous light. I am thinking of Hamlet’s ‘there is nothing either good or bad, but thinking makes it so’ (Hamlet, 2.2.249–50), or Troilus’s ‘What’s aught but as ‘tis valued?’. (Troilus and Cressida, 2.2.52) This recurrent view is at work in Shylock’s justification for the pound of flesh: ‘affection / Mistress of passion’ sways him to the mood, for which he can give no other reason. Affection drives a great deal in Shakespeare’s plays, and his characters are sometimes led to believe that there is nothing independent of their feelings. Passion is reason and ground enough. A cogent response to such subjectivism comes from Brabantio, in Othello, when he is advised that he should deal with his daughter’s elopement by smiling his grief away. He answers, ‘So let the Turk of Cyprus us beguile, / We lose it not so long as we can smile’. (1.3.210–11) The Duke has nothing to say to that. Subjective perception colours everything. But, as Rosalind says in As You Like It, she knows no man who has died of love. Alternatively, when you kick a stone it hurts. Actually, many die of love in Shakespeare—all those Greeks and Trojans, for example; or rather, they die of someone’s over-investment in the specifics of love. Specific performances in Shakespeare are, therefore, problematic, tenuous, and somewhat hollow. Moreover, the attachment of specific performance to investments in particular things has the effect of putting under question those investments in non-liquid, non-fungible human values themselves. Such questioning—Shakespeare being Shakespeare—can lead in different directions. One is toward the nihilism, the rejection of all value, seen by critics such as Harold Bloom and even by AD Nuttall,17 who rejects it in some places, but sees it, for instance, in The Tempest: 17 Harold Bloom, Shakespeare: the Invention of the Human (New York, Riverhead Books, 1998) 680–1; Nuttall, n 8 above, at 374.

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And, like the baseless fabric of this vision, The cloud-capp’d towers, the gorgeous palaces, The solemn temples, the great globe itself, Yea all which it inherit, shall dissolve And, like this insubstantial pageant faded, Leave not a rack behind. We are such stuff As dreams are made on, and our little life Is rounded with a sleep. (4.1.164–71)

One could argue that similar sentiments are expressed in King Lear, Hamlet and Macbeth, in the quintessence of dust and the tale told by an idiot, signifying nothing. Moreover, a direct cause and effect relation between the breakdown in cathected values and nihilism can be seen in Othello’s assertion: ‘and when I love thee not, / Chaos is come again’. (3.3.91–2) One tendency to note here is the way the breakdown of specific values gives way to the general despecification that goes with the loss of all value: Desdemona versus chaos; ‘all our yesterdays have lighted fools / The way to dusty death’. (Macbeth, 5.5.22–3, emphasis added) The self-reference of Shakespeare’s theatre means that specific performance as a quasi-legal idea leads to a questioning of performance, specific and otherwise, in the theatrical sense. The theatrum mundi trope becomes another way of expressing the emptiness of things. Prospero’s nihilism soon leads to Prospero’s epilogue, a divesting of theatrical and artistic role and project. Shakespeare’s epilogues are often awkward, absurd things to see in contemporary theatres. At the end of As You Like It, for example, we routinely see a female actor confusingly say ‘if I were a woman’ and then—more absurdly still—label As You Like It a bad play. In Shakespeare’s time, I have always assumed, such self-critique was either a required and purely formal display of polite humility or ironic and selfcongratulatory, nudge-nudge wink-wink, like an early modern ‘not’ joke (‘This is a bad play—not!’). But I wonder if the value of all performance (in the theatrical sense and by extension to life itself) is being called into question. As if to say, even very wonderful plays, like wonderful anythings, are nothing really: the best of their kind are but shadows. René Girard says of Shakespeare’s attitude to art, ‘He liked it so much that he regarded it as he did other passions, as a form of enslavement’.18 And, we might add, as baseless and empty. The tension at the end of The Tempest is between art and retirement, between freedom to do what one is driven to do and freedom from obligations and attachments. Shakespeare didn’t like his art so much as not to be able to abandon it. Ultimately, freedom from trumps freedom to. Retirement is one form of renunciation, and the sudden disavowal of a deep commitment takes repeated and various forms in Shakespeare’s work: Romeo’s overthrow of one love for another, Shylock’s abandoning his suit and Titania the 18

Girard, n 15 above, at 330.

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Indian boy, the sudden change in vocation of Duke Frederick in As You Like It, the change of heart of the band of brothers in Love’s Labour’s Lost, Edmund’s dying attempt to do some good in King Lear, Leontes’ jealousy overthrown in The Winter’s Tale. Sudden conversion or de-conversion are repeated tropes in the Shakespearean questioning of the solidity of all specific values. But alongside the nihilism is a stubborn emotional insistence on the love for and dedication to specific values. For ‘My love is as a fever longing still / For that which feedeth the disease’ (Sonnet 147.1–2) there is ‘Let me not to the marriage of true minds / Admit impediments’. (Sonnet 116.1–2) In answer to Emilia’s ‘a great price for a small vice’, there is ‘For thy sweet love rememb’red such wealth brings, / That then I scorn to change my state with kings’ (Sonnet 29.13–14), or Leah’s ring, which Shylock would not trade for a wilderness of (one imagines, very expensive) monkeys. Nihilism and commitment tangled together make for strange and wondrously baffling moments in Shakespeare’s work. I think here of Aaron in Titus Andronicus, all-round destroyer and desperately protective father at once. How do we reconcile his paternal care (he is the only truly protective parent in the play) with ‘If one good deed in all my life I did, / I do repent it from my very soul’? (5.3.189–90) Othello, we are told, loved not wisely but too well (5.2.344). This is a surprising turn of phrase. Not loved too much, or unwisely, but, strangely, too well, as if even after everything that has happened, that love was a good thing—even though that good love was a cause of the tragedy. Moreover, he loved too well, an expression once again of the almost necessary excessiveness of specific investments (Helen, the pound of flesh) and the destructiveness that follows. And then there is this mind-boggling opening of a mindboggling poem: ‘When my love swears that she is made of truth, / I do believe her, though I know she lies’. (Sonnet 138.1–2) Here the psyche somehow holds together completely incompatible viewpoints: belief and disbelief, love and not love, truth and lies, specific value and its emptying out. Where in the mind does this happen? In the unconscious? In the clarity of pure understanding? In truth? In bad faith? In blindness? In insight? All at once it is, somehow. Are passions, then, in Shakespeare, as Ian Ward has argued, a source of community against alienation,19 or are they, following René Girard, a form of enslavement? Or are they even something darker and emptier? Are they the point of living? Yes. Shakespeare’s plays work in the conflicts of different perspectives: it is folly to over-invest in one thing; it is human and joyous to love the particular; there is no compensation for the loss of what one deeply loves; living involves necessary and healthy substitution for lost loves. However, I would argue, Shakespeare’s perspectives are of different weight and depth. The lightest is a basic lack of in interest and suspicion of money, coupled with (Shakespeare was a businessman, after all) a practical sense that money comes in handy sometimes.

19

Ian Ward, Shakespeare and the Legal Imagination (London, Butterworths, 1999) 99–100.

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Going somewhat deeper is a socio-humanitarian awareness of the human suffering and desperation that follows from poverty and want. Deeper and weightier still, and I would say occupying the broad centre of Shakespeare’s work, is an attachment to particular things—love of the thing itself—along with the sense of the folly, cruelty and impossibility that attend on such attachments. Buried beneath all this and occasionally erupting on the surface is a nihilism that sees all value as passing away into meaninglessness and oblivion. Often all these perspectives jostle in a single play. Or they can arise in a single speech. About to go into exile, Hamlet says: Rightly to be great Is not to stir without great argument, But greatly to find quarrel in a straw When honour’s at the stake. (4.4.53–6)

Hamlet here compares his own pusillanimity to Fortinbras’ (foolhardy) will to power. In this moment of self-criticism he comes off in his own eyes the worse. But are we meant to agree? Does Hamlet really agree with himself? Even the syntax is troubling here: the first part of the sentence appears to say both that right greatness does not involve waiting for a great reason before acting and that to be rightly great means not to act without reason. Finding quarrel in a straw cannot be anyone but the rashest’s notion of a good idea—can it? Straw here is as close as one can get to the instantiation of valuelessness. And what is honour if more than, as Falstaff would have it, a word? What about finding quarrel in a father’s murder? What happens in the substantial space between great reason and a straw? Is anything worth caring about? How much? The kinds of tensions I am tracing are not unlike those critics before me have traced. Millicent Bell, for instance, in Shakespeare’s Tragic Skepticism, sees in Shakespeare’s work ‘a nostalgic attachment to those very convictions skepticism denies’, which results in ‘a contest of feelings and ideas’.20 Karl Marx, in a study of his own character, noted, inter alia, his love of simplicity and his singlemindedness.21 Marx also famously called for the ruthless criticism of all that exists.22 Shakespeare, I dare say, was not in love with simplicity and was anything but single-minded. Moreover, to turn Marx partly on his head, what we get in Shakespeare is the ruthful criticism of all that exists: criticism compassionate and divided at heart. Shakespeare’s work shows a deep care about the things it criticises, a deep attachment to the values that it views with utter scepticism. Ruthless readings of Shakespeare miss the deep tensions. For years, when lecturing on King Lear, I used to quote a newspaper review of the play which said that Lear in the storm was ‘man alone in an empty universe’. My curt riposte was

20 21 22

Millicent Bell, Shakespeare’s Tragic Skepticism (New Haven, Yale University Press, 2002) x. Marx and Engels, n 13 above, at 436. Karl Marx, The Letters of Karl Marx (Englewood Cliffs, Prentice-Hall, 1979) 30.

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‘man is not alone and the universe is not empty’, two propositions I believe the play shows on its face. But over time my students taught me that people can feel alone and the universe can feel empty. I’d had to be simple and single-minded, somewhat ruthless and somewhat blind, not to see that. By the way, in terms of my own specific investments, I hope you’ll be happy to know that I eschewed a life of stagecoach robbery and eventually landed a tenure-track position. But I must say, if I ever won the lottery or found myself dying, I’d most likely pack it all in the next day and leave not a rack behind.

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2 Consideration, Contract and the End of The Comedy of Errors ANDREW ZURCHER*

HETHER IN THE moral philosophical terms of Aristotelian ethos or Ciceronian officia, the religious terms of hot Protestant preachers, or the epistemological terms made fashionable by the publication of Estienne’s edition of Sextus Empiricus (1562–68) and Montaigne’s Essais (1580–92), no word cut more deeply into 1590s hermeneutical theory than ‘error’. To go astray, to mar one’s faith, to mistake opinion for knowledge—these all represented ‘errors’ of a similar form. The common law, too, had its own theory of error, increasingly under pressure from 1585, when Elizabeth established the Exchequer Chamber as a court of error to resolve disputes in law between the two royal courts of King’s Bench and Common Pleas. The common law approach to error, like its approach to hermeneutics in general, was defined by the absolute and precise terms in which it was expressed; as the 1641 legal glossary, Les Termes de la Ley, defines it, error: est un fault en un judgement, ou en le processe, ou proceeding al judgement, ou execution sur ceo en Court de Record, quel fault en le civill Ley est appel un Nullitie. [Errour is a fault in a judgment, or in the process, or proceeding to judgment, or in the Execution upon the same in a Court of Record, which in the Civil Law is called a Nullitie.]1

As a ‘fault’ of process, argument, judgment or execution, the common law error could be identified and ‘reversed’; as Cowell notes in his Interpreter of 1607, ‘thereuppon the writ, which is brought for remedy of this ouersight, is called a

* An earlier version of this chapter appeared at (2007) 1(2) Law and Humanities 145. 1 Les Termes de la Ley: Or, Certain Difficult and Obscure Words and Terms of the Common Lawes and Statutes of this Realm Now in Use Expounded and Explained (London, J Streater for the Company of Stationers, 1659), f 142r.

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writ of error, in Latine, De errore corrigendo’.2 The institution of the Exchequer Chamber as a court of error (an optimistic piece of practical government aimed at restoring the common law’s indifferent and predictable justice) testifies to the contemporary assumption, among lawyers at least, that error could be eradicated. Among the many discursive contexts in which the word and the concept of ‘error’ functioned as a spectre of instability, doubt and transgression, the law— uniquely—adopted a practical and (at least rhetorically) decisive approach to its remedy. In both legal and literary discourses, the early 1590s witnessed a serious engagement with the problem of interpretative error. The semantic and allegorical reach of ‘error’ had informed at least one influential literary representation, in the first canto of Edmund Spenser’s The Faerie Queene (1590), by the time Shakespeare sat down to compose his own account, in The Comedy of Errors (1594). Spenser had conspicuously drawn on the legal understanding of error as one pole in the approach to the epistemologically complex relation of single truth to manifold falsehood.3 Like Spenser, Shakespeare turned to the law as an important context for his framing of the hermeneutical crisis facing literary among other forms of writing; but unlike Spenser, as a dramatist Shakespeare took the problem away from a richly significant allegorical space, and inserted it into a quick-moving social and mercantile context. This transition placed acute emphasis on the practical aspect of error, and the difference between legal and literary formulations of the relation between causes and ends. Shakespeare also broke with Spenser by focusing his comic study of error on the same issue that had recently provoked debate in contemporary legal circles: contract. The developing law of contract was at the centre, in the early 1590s, of a long-running struggle between the two royal courts in Westminster, largely fought through writs and courts of error; by immersing his characters in a system of contractual relations beset by errors, Shakespeare triangulated the related problems of cause, end and error in a way that brought legal and literary hermeneutical practices palpably into tension. The word that comes to dominate the thought, if not manifestly the language, of The Comedy of Errors is consideratio, or ‘consideration’, which as it was used by English legal writers of the sixteenth and seventeenth centuries denoted the thing in respect of which a ‘parol undertaking’ was made, and which transformed that promise into an actionable undertaking.4 If legal hermeneutics stress a pragmatic actionability foreign to literary interpretation, the distinction might be said to be distilled or miniaturised in the consideratio, for the material delivery of this 2 John Cowell, The Interpreter: or Booke containing the Signification of Words (Cambridge, John Legate, 1607), sig Cc1r. 3 See Andrew Zurcher, Spenser’s Legal Language: Law and Poetry in Early Modern England (Cambridge, D.S Brewer, 2007) 45–9. 4 For an introductory discussion of the origins and meaning of consideratio in the Tudor period, see J H Baker, ‘Origins of the “Doctrine” of Consideration’, and ‘New Light on Slade’s Case’ in The Legal Profession and the Common Law (London, Hambledon, 1986) 369–91, 393–432.

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object or sum5 was taken by legal theorists not merely to represent the promise made, but to be the witnessable expression of the promise and the sole evidence for judging the legal existence of the concomitant undertaking. If no consideration could be shown, the agreement would be considered a nudum pactum, or ‘naked bargain’, and it was an accepted maxim that a nudum pactum was never actionable (ex nudo pacto non oritur actio). A literary reading would see the consideratio as a symbol of the substantial promise; by contrast, for all intents and purposes, the law regarded the consideratio as the substance of the promise itself. The movement in legal practice and thought toward the verifiability of the consideratio was, of course, driven by evidential requirements, and a need for epistemological certainty in judgment and subsequent action. The fact that English legal thinking was making this move, from the earlier court Christian tradition of the laesio fidei to the new, evidentially secure consideratio, at the close of the sixteenth century suggests why it was so attractive, and useful, as a focus for an interrogation of hermeneutical concerns.6 The common law, like representational literary writing of all kinds, was in the process of defining its approach to the relationship between an idea and the thing that represented or evidenced it. At stake in this process of definition was not a single error or type of error, but a large category of possible errors: in effect, any process, argument or judgment turning on the defendant’s intention as well as an action, or series of actions. The transition that the common law ultimately effected, one that took it away from intention, and the evidence of intention, and toward the things that people do, is that same transition effected by any Shakespearean comedy, in which the wills and ambitions of individuals give way, often painfully, before the heavily ironised personae and the social goods of the comic conclusion. In The Comedy of Errors, as I will argue, we see Shakespeare not only performing this generically characteristic comic transition from promise to consideratio, or from private experience to public demonstration, but inviting us to deliberate and adjudicate upon the importance of the connection between causes, errors and ends—between literature, interpretation and law.

5 The development of the ‘doctrine of consideration’ in the sixteenth century eventually permitted a much wider understanding of the kinds of things a debtee might give, do or say to provide consideration for a debtor’s promise; what is most important to recognise is that all of these considerations had a securer evidential status, in the eyes of the law, than the implied promise itself. 6 For a discussion of the contemporary transition from the church courts’ action of laesio fidei to the Elizabethan common law assumpsit actions, see RH Helmholz, ‘Assumpsit and Fidei Laesio’ (1975) 91 Law Quarterly Review 406.

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CAUSES AND ENDS: THE FATALISM OF THE COMEDY OF ERRORS Egeon, merchant of Syracuse, has a problem. He has been looking for his lost son and wife for decades, but this is not exactly his problem. It is true that he has been apprehended by Ephesian bailiffs, and that he now faces trial, and a sentence of death, before the Duke Solinus—but this is not exactly his problem, either. His problem, rather, is that he is not particularly bothered by his misfortune, and never has been; and it is this fatalism that generates the extraordinary humour, and pathos, of the opening scene of The Comedy of Errors. ‘Proceed, Solinus, to procure my fall’, Egeon begins the play, in a summary statement of his apathetic world-weariness and lethargic appetite for self-destruction. Solinus subsequently draws attention to this fatalism as he replies (completely ignoring the theatrical flourish with which Egeon has laid his head on the block): ‘Merchant of Syracusa, plead no more. / I am not partial to infringe our laws’.7 Solinus speaks as if Egeon had made the least representation in his own defence, when of course he has said, and meant, exactly the opposite. In the ensuing speeches, this egregious fatalism comes to define his attitude, and to colour his diction. Pro-ceed, pro-cure, pro-sperous, pro-vision, pro-vide, pro-long, pro-crastinate, pro-blem: Egeon’s opening and closing speeches in the first scene are scored verbally with the pessimistic pro-lepsis that leads him to assume the worst, and resign himself to it. Shakespeare insists enough on Egeon’s hyperbolic fatalism in this scene to make it unavoidable for the reader; for example, in the passage where Egeon most self-consciously styles his fortunes as an episode of providential romance, the sea-wreck, his autobiographical account reaches a high pitch of absurdity: But longer did we not retain much hope, For what obscured light the heavens did grant Did but convey unto our fearful minds A doubtful warrant of immediate death, Which though myself would gladly have embraced, Yet the incessant weepings of my wife, Weeping before for what she saw must come, And piteous plainings of the pretty babes, That mourned for fashion, ignorant what to fear, Forced me to seek delays for them and me. (1.1.65–74)

The apparent ambiguity of ‘doubtful’ and ‘fearful’ is here yoked inseparably to the conviction of ‘warrant’ and the modal necessity of ‘must’, and Aemilia’s weeping, 7 William Shakespeare, The Comedy of Errors in Stanley Wells and Gary Taylor (eds), The Complete Works (Oxford, Oxford University Press, 1988) 1.1.1–4. All further references to this play, and other Shakespeare plays, will be to the same edition, and will be parenthetically noted by Act, scene and line number.

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like that of the four children, becomes a formal response to a necessary narrative; all six of them are ‘forced’ by ‘the heavens’, and the best ends to which Egeon can aspire are merely ‘delays’, and not escapes. Egeon’s tendency toward Aegean pessimism, and the way he represents occasions of doubtfulness or fearfulness as ‘warrants’ for necessary outcomes (turning risk, effectively, into a sign for disaster), is one he shares at some point with almost every other character of the play. Chief among these parallels in the inset narratives is that of Adriana, the jealous (and much abused) wife, whose readiness to suppose her husband’s philanderings makes her a figure alternately of pity, righteousness and scorn. In the first scene of the second Act, she and her sister Luciana wait at home while Dromio goes in search of her husband. The anxiety that she feels is prepared by Luciana, who nervously suggests in the opening lines of the scene that Antipholus has been invited by ‘some merchant’, ‘and from the mart he’s somewhere gone to dinner’. (2.1.4–5) Adriana becomes assured within very few lines that Antipholus’s tardiness is a sign for his infidelity: first she rails against his ‘liberty’, then suspects that he ‘start[s] some otherwhere’, then tendentiously misinterprets Dromio’s assertion that her husband is ‘hornmad’, and then, finally, comes out with the explicit charge: His company must do his minions grace Whilst I at home starve for a merry look. Hath homely age th’alluring beauty took From my poor cheek? Then he hath wasted it. Are my discourses dull? barren my wit? If voluble and sharp discourse be marred, Unkindness blunts it more than marble hard. Do their gay vestments his affections bait? That’s not my fault; he’s master of my state. What ruins are in me that can be found By him not ruined? Then is he the ground Of my defeatures. (2.1.85–96)

Antipholus has deserted his wife, she claims, because of—that is, as a consequence of the causa of—her want of beauty, discourse and fine clothes; but, she argues, there is a further cause of these causes, which is his own ‘ruining’ of her merits. Adriana’s extended argument here is an exact mirror of Egeon’s earlier fatalism: it is the surrender to Antipholus that has made her vulnerable, and vulnerability is as good as defeat. To be Antipholus’s is, to her mind, not to be Antipholus’s.

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But Adriana does not stop quite there. Although the final passage is, as many editors have remarked, undoubtedly textually corrupt,8 enough remains intelligible to see that Adriana repeats her (and Egeon’s) earlier argument: ‘I see the jewel best enamelled / Will lose his beauty’, she asserts, and again, by analogy, ‘no man that hath a name / But falsehood and corruption doth it shame’. (2.1.108–12) To have a name is to lose it; to be the greatest jewel is to lose your lustre. But Adriana also makes a rhetorical move here that significantly complicates this idea, and begins to show why this play should be so interesting to scholars of legal history, and of law and literature. ‘Sister’, she says: Sister, you know he promised me a chain. Would that alone a love he would detain So he would keep fair quarter with his bed. (2.1.105–7)

The sense of this passage depends on the correct construction of ‘a love’, by which Shakespeare could only have meant ‘out of ’, ‘for the sake of ’.9 The chain should, of course, function as a symbol of Antipholus’s love for his wife, but here we see Adriana suggesting that, in fact, it works to the opposite end: to make a promise is to break it, and to give someone a chain as a symbol of a sincere love is to betray that sincerity. This is the same logic that governs all the rest of her (and Egeon’s) fatalistic assessments of risk. Here we see that the risk is not only temporal—I am likely not to repay you on Tuesday for that hamburger today— but also inherent, structurally, in any act of signification: to make a metaphor is to deny the connection between tenor and vehicle that it paradoxically asserts. If one is an optimist, the metaphor will appear to be half-full; if one is a character in The Comedy of Errors, any attempt at language, by virtue of its nature as an attempt, will appear to be doomed.10 The fatalism of The Comedy of Errors could be explored in any number of directions in the play. One might trace its origins in the signal metaphor

8 See eg, TS Dorsch’s attempts to resolve this passage in the revised New Cambridge Shakespeare edition of the play (Cambridge, Cambridge University Press, 2004) 72. Dorsch plainly despairs of the passage, ‘which none of the (usually lengthy) explanations, embracing many emendations, has elucidated’. 9 Here I differ with the OED, which recognises this use of prepositional ‘a’ to mean either ‘in’ or ‘into’ (a locative use), or ‘in’ or ‘with’ (an instrumental use); see OED, ‘a’, prep 1, 4, 9. To my mind, Shakespeare’s pretty ploce here achieves almost an ethical dative tone. 10 It is not surprising to see Shakespeare working in about 1594 with this paradox of signification in relation to ownership; he had, presumably only months before, written an extended treatment of the same topic in The Rape of Lucrece, where the tragic heroine’s central problem—the meaning of the crime committed against her—comes to turn on Egeon’s fatalism. The poem includes many expressions of the problem, attributed in different ways to Lucrece herself (to be known chaste is to lose one’s chastity), to Tarquin (to realise one’s desire is to consume it), and to Collatine: ‘why is Collatine the publisher / Of that rich jewel he should keep unknown / From thievish ears, because it is his own?’ (l.l.33–5) The oddly dangling final clause, ‘because it is his own’, almost serves as an answer to the question, rather than as the question itself. To own something, in this formulation, is rather to be dispossessed, than possessed, of it.

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Shakespeare develops from his source in Plautus, that of the drop of water, seeking its double, that falls into the ocean and so confounds itself: again, to seek is to be lost.11 One might see the link with the physical farce of the two Dromios, who religiously prophesy their frequent beatings. Or, again, one might speculate on the way comedy and romance both play complexly with the dynamics of expectation and reversal; Shakespeare sets up clear parallels between Egeon’s fatalism and romance narrative conventions, for example, in the first scene, when Egeon breaks off his tale, saying, ‘O, let me say no more. / Gather the sequel by that went before’. (1.1.94–5) What is perhaps most interesting about Adriana’s mention of the chain in Act 2 scene 1, though, is that it implicates her fatalism in another curious part of Shakespeare’s elaboration on Plautus: the series of scenes in which the goldsmith Angelo and Antipholus negotiate over the chain, Angelo delivers it, and Antipholus fails to pay for it. These scenes deal explicitly with contract in a legal sense. In the opening lines of Act 3 scene 1, Antipholus of Ephesus makes his first entry, in mid-conversation with the goldsmith; true to form (he is Egeon’s son), he is just remarking that he anticipates a ‘shrewish’ welcome from his wife, and he is preparing Angelo to ‘excuse us all’: any welcome, as he later says to his merchant-friend Balthasar, is a failure of hospitality. Antipholus then ignores the goldsmith throughout the entirety of the scene, as he is repulsed from his house, but he returns to him in the closing lines, in which he commands him to fetch the chain and meet them at the Porpentine, a public house where he will entertain his courtesan and present her with the jewel. It is not until the next scene that Angelo delivers the chain, in error, to a befuddled Antipholus of Syracuse, in an exchange that draws particular attention to one crucial, and superfluous, narrative detail: Angelo refuses to be paid on the spot, but appoints a later meeting for his satisfaction: ANGELO: Master Antipholus. ANTIPHOLUS S: Ay, that’s my name. ANGELO: I know it well, sir. Lo, here’s the chain. I thought to have ta’en you at the Porpentine. The chain unfinished made me stay thus long. ANTIPHOLUS S: What is your will that I shall do with this?

11 In the final scene of Menaechmi, the servant Messenio observes that the two Menaechmi are as alike as water (’neque aqua aquae nec lacte est lactis, crede mi, usquam similius, quam hic tui est, tuque huius autem’ [‘Neither water to water nor milk to milk, believe me, is more alike than he is to you, and you indeed to him.’]); Shakespeare may be alluding to this comparison when he figures Antipholus as a water-drop, at 1. 2. 35–38 and again at 2. 2. 116–20. Egeon glosses this simile when he recalls, at 1. 1. 130–31, his reluctance to part with his remaining son to go in the search of the other: ’Whom whilst I laboured of a love to see, / I hazarded the loss of whom I loved’. .

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ANGELO: What please yourself, sir. I have made it for you. ANTIPHOLUS S: Made it for me, sir? I bespoke it not. ANGELO: Not once, nor twice, but twenty times you have. Go home with it, and please your wife withal, And soon at supper-time I’ll visit you, And then receive my money for the chain. ANTIPHOLUS S: I pray you, sir, receive the money now, For fear you ne’er see chain nor money more. ANGELO: You are a merry man, sir. Fare you well. (3.2.149–62)

This delay between delivery of the chain and payment for the chain would make sense if Angelo were giving the chain to Antipholus of Ephesus, whom he would not expect to have requisite funds upon his person; but Antipholus of Syracuse does have the money, and offers it to Angelo with some insistence, saying, ‘receive the money now, / For fear you ne’er see chain nor money more’. Such an insistence an actor would have to support with some physical gesture—reaching for gold, perhaps—and Angelo’s possibly cagey incomprehension is not easily explained away. The only plausible explanation is that he construes Antipholus’s response as some sort of trap; rather than believing Antipholus to have offered the money in a sincere gesture of magnanimous concern, Angelo assumes that Antipholus is testing his own credit. If Angelo were to agree to accept the money then, in other words, he fears he would be dishonouring his patron, as if suggesting that Antipholus could not be trusted to deliver the money later. To delay the demand for payment is to do honour to the debtor. This makes good sense of Angelo’s incredulity when, at the beginning of Act 5, he supplies the second merchant with a character witness of Antipholus of Ephesus: Of very reverend reputation, sir; Of credit infinite, highly beloved, Second to none that lives here in the city. His word might bear my wealth at any time. (5.1.5–8)

The Ephesian credit network, like that of Elizabethan London, is basic to the commerce, and to the social and political structure, of the city. Craig Muldrew has shown just how pervasive and fundamental ideas of credit were to early modern English social organisation;12 here, in Angelo’s estimation, Antipholus of

12 Muldrew argues that sixteenth-century England did not witness ‘a reorientation of the representation of well-being away from the order and unity of the symbolic body of the community to the accumulating individual. Rather there was a reordering of notions of community relations towards a highly mobile and circulating language of judgement—what I have chosen to term the

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Ephesus is well-reputed for his financial astuteness, and for that cause both loved and, in a political sense, much regarded. With this in mind, we might recall that a heavy penumbra of distrust and insufficiency hangs over the whole play, deriving from Solinus’s account, in the opening exchange of the first Act, of Ephesian merchants’ inability to ransom themselves from Syracusan captivity. Merchants must not want guilders to redeem their lives, or they will seal rigorous statutes with their bloods; social and political disorder (‘intestine jars’) result when one agent (here, the Syracusan Duke) does not respect or ‘try’ another’s credit. On the other hand, too, we might recall the way Shakespeare has Adriana, at the end of Act 2 scene 1, rhyme ‘chain’ with ‘detain’ (L detinet), a key word in the law of debt and assumpsit;13 Shakespeare’s clear implication, expressed through Adriana’s diction, is that the giving of pledge, of surety, of consideration is the surest way to destroy credit.

SLADE’S CASE AND LEGAL PESSIMISM If a Muldruvian ‘economy of obligation’ was basic to Elizabethan social organisation, the political system that increasingly was called upon, and tried, to regulate that system was the common law of contract. As noted above, this part of the law was changing rapidly at precisely the time that The Comedy of Errors was written and first performed. Slade’s Case was still a few years off when Shakespeare penned his imitation of Plautus, but the tensions between the King’s Bench and the Common Pleas that finally led Chief Justice Popham to convoke the judges of the realm in consultation on Slade v Morley were certainly active in 1594. The historical ground has been extensively covered by Simpson, Ibbetson and Baker in a series of short articles and magisterial studies.14 For a century and more, the assumpsit action had been expanding in King’s Bench as an alternative to actions of covenant and debt for contractual non-feasance. Where a document under seal “currency of reputation”—about the creditworthiness of households attempting both to cooperate and compete within communities increasingly permeated by market relations’. See Craig Muldrew, The Economy of Obligation: the Culture of Credit and Social Relations in Early Modern England (Basingstoke, Macmillan, 1998). 13 See, for example, the writ of debt in Anthony Fitzherbert, La Nouuelle Natura Breuium (London, Richard Tottel, 1553), f. 119v: ‘Rex vicecomiti &c. Precipe A. quod iuste &c. reddant B. C solidos quos ei debet et iniuste detinet vt dicit. Et nisi fecerit, et predictus B. fecerit &c. tunc sommone per bonos sommonitores predictum A. &c.’ [‘The king to the sheriff &c. Command A. that justly &c. he render to B. one hundred shillings which he owes him and unjustly detains, as he says. And if he will not do so, and if the aforesaid B. &c. then summon the aforesaid A. by good summoners &c.’] 14 See eg, AWB Simpson, History of the Common Law of Contract: the Rise of Assumpsit (Oxford, Clarendon Press, 1975); JH Baker, ‘The Establishment of Assumpsit for Nonfeasance’ in The Reports of Sir John Spelman (London, Selden Society, 1978) 255–98; ‘Origins of the “Doctrine” of Consideration’ in The Legal Profession and the Common Law (London, Hambledon, 1986) 361–91; Baker, ‘New Light on Slade’s Case’, n 4 above, at 393–432; and David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, Oxford University Press, 1999).

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was necessary for covenant, assumpsit in lieu of covenant required no deed of the litigant. And while the action of debt still allowed defendants to ‘wage their law’ with oath-helpers, it suffered from some ambiguity over ideas of quid pro quo; here assumpsit in the King’s Bench could help plaintiffs to a quicker, surer judgment, both cheaper and more secure. It had become clear during Elizabeth’s reign that the King’s Bench stood to do very well from the expansion in their business afforded by the new assumpsit action; as John Baker has noted, ‘By the middle of the sixteenth century assumpsit for money was becoming the principal action on the case; and the King’s Bench, now able to entertain suits on charterparties, insurance contracts, partnerships, and bills of exchange, was rapidly becoming a commercial court for the city of London’.15 Conservative judges in the Common Pleas were not impressed: the great Anthony Fitzherbert had resisted the expansion of assumpsit, and during Elizabeth’s later years the Common Pleas judges continued to follow his lead, chief among them Thomas Walmsley and Sir Edmund Anderson, Coke’s precedessor as Chief Justice. Litigants thus faced a problem at nisi prius trials, because they could not predict whether they would find the circuit judges sympathetic or not; but, perhaps more importantly, and especially for our present purpose, the situation became plainly intolerable after the creation in 1585 of the Exchequer Chamber as a court of error. Because it comprised the Barons of the Exchequer sitting alongside the judges of the Common Pleas, the Exchequer Chamber threatened to become a review court hostile to King’s Bench practice. After the appointment of Sir John Popham as Lord Chief Justice of the King’s Bench in 1592, this very situation arose: Popham naturally supported the assumpsit actions, while Anderson dug in his heels. For a time it seemed that the situation might be mediated by the diplomacy of Thomas Owen, one of the Common Pleas judges, but by 1596 Exchequer Chamber had begun reversing King’s Bench judgments, with Anderson and Walmsley in the lead. The exchange of the chain in The Comedy of Errors is legally significant not only because it echoes the circumstances of a case, from the fifth year of Henry VII’s reign, often cited in the Elizabethan debates on assumpsit for debt. In that case, Lord Dudley v Lord Powles (1489), ‘a man, being indebted to another, licenses the debtee to take his gold chain and to retain it until he pays the money’.16 While this case from the yearbooks concerns bailment, it became useful to King’s Bench judges in the 1590s because, despite the fact that no ‘apt words’ were used by the parties, the chain was considered a good pledge for the delivery of the money. Obviously, in the bargain between Antipholus and Angelo, the chain is supplied to the debtor in expectation of payment, and not, as it appears in the 1489 case, to a bailee as a pledge of future redemption. But in 1489 the

15

JH Baker, An Introduction to English Legal History (4th edn, London, Butterworths, 2002) 343. Lawrence Tanfield arguing Slade’s Case at Serjeants Inn, 1598, from BL MS Add 25203, ff 12–12v and BL MS Stowe 398, ff 10v–11, edited and translated in Baker, ‘New Light on Slade’s Case’, n 4 above, at 397. 16

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bailor failed to use ‘apt parolls’ just as a 1594 debtee might have failed to use the word ‘consideration’, or the debtor the word ‘undertake’; and yet the law might safely construe the first action as a pledge, and the second as an assumpsit, for the sake of the thing itself: a chain was surrendered, or a consideration given. Such a modest fiction represented only one of the many ways in which suitors would embellish their counts in the sixteenth century to give a plausible basis for bringing a trespassory action on the case for contract in King’s Bench. Baker has given a summary account of the others in his chapter, ‘New Light on Slade’s Case’: The Common Pleas were content to allow actions on the case in situations where debt would lie, provided there was something collateral or additional to the mere contract or indebtedness, which would provide consideration for an undertaking to pay, and which would therefore amount to a distinct cause of action. Suitable additional factors were: an agreement to pay in a certain place or by several instalments or in specified coin, a forbearance to sue for a fixed time, or a payment or set-off of a smaller sum of money. Since the action of debt lay only to recover the liquidated sum owed, it gave no remedy in respect of these additional factors, and so an action on the case was legitimate. The action on the case, being tortious in nature, was also appropriate to recover special loss flowing from the non-payment: for instance, if the debt were in wares or grain and after the failure to deliver the market values rose or the plaintiff’s family went hungry or the plaintiff suffered in his business.17

It must be significant that, in Shakespeare’s play, we see many of these ‘collateral or additional’ conditions applied not only to Antipholus’s debt, but to Egeon’s and Adriana’s ‘debts’. For example, Antipholus and Angelo agree to effect their bargain at the Porpentine (specified place), and Angelo, as we have seen, later refuses to accept the payment until Antipholus has shown the chain to his wife, after which he promises to come to the house to collect the money (special condition: forbearance). When Antipholus of Ephesus rightly claims that Angelo never gave him the chain, Angelo protests (and here the wording is crucial): You wrong me more, sir, in denying it. Consider how it stands upon my credit. (4.1.67–8)

Angelo alleges real financial damage to him as a result of Antipholus’s failure to pay him, and of course the stranger merchant, his creditor, along with the officer, are in his company on stage as he delivers these lines; Angelo’s resort to the word ‘consider’ stands out, in this protestation, as a signal indicating that we are to construe his financial damage as a tortious loss consequent on his earlier consideration, the conspicuous and superfluous forbearance on Antipholus’s debt. In this light, Solinus’s forbearance of the sentence of execution on Egeon,

17

Baker, ‘New Light on Slade’s Case’, n 4 above, at 415–16. See also Baker, n 15 above, at 343.

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which he stays for the duration of a day, looks relevant; and of course Solinus is effectively enforcing a debt in this case, too: Egeon can ransom himself with a thousand marks, and the death penalty is only the consequent punishment for his failure to discharge his obligation. Similarly, Dromio jokes that Antipholus makes jests ‘in earnest’ when he beats him in Act 2 scene 2, and asks him ‘upon what bargain’ he receives the blow. Then, too, Dromio of Syracuse reports to Adriana that Antipholus of Ephesus has been ‘rested on the case’, that is, arrested on an action on the case, or an assumpsit. When once we notice Shakespeare’s meticulous attention to the assumpsit action lying between Angelo and the Antipholi, the language and plot details of many of the other, mirroring, relationships of the play come instantly into focus as further versions of the same action upon the case. (It is a critical chain reaction.) The twinning narrative structure of The Comedy of Errors comes to imitate (that is to say, anticipate) the quandary in which the common law judges would find themselves during the arguments over Slade’s Case in 1598. Antipholus of Ephesus has made Angelo a promise, but has not received consideration for it; whereas Antipholus of Syracuse has received the consideration, but made no promise. The twinning of the play thus divides the consideratio that imports the promise to pay from the original contract, and from the promise itself. Insofar as he would compel payment, Angelo ought to have action of debt against Antipholus of Ephesus (for the original contract), but assumpsit against his brother (because of the forbearance, an established form of consideratio). A single contract made between parties in the third act thus, in a loose way, leads to two distinct forms of action, as represented in the twinning of the brothers Antipholus. What Shakespeare has effectively allegorised in the brothers was one of the chief points of contention during Slade’s Case: in Baker’s words, ‘whether a contract and a contemporaneous promise to perform it could give rise simultaneously to two distinct forms of action to achieve the same end’.18 The problem, as Adriana recognises early in The Comedy of Errors, is that she would much rather have Antipholus’s love than his chain, and yet she can compel only the latter by law. As the Abbess by a bizarre reversal in Act 5 seems to demonstrate to Adriana, the attempt to compel Antipholus to keep his promise, in his heart, is always doomed to failure, and in no way more surely than by attempting to compel delivery of the chain. Why, then, is Shakespeare so bothered by assumpsit for debt in The Comedy of Errors? Why does it feature repeatedly in the diction of the play, and come to structure the central exchange—of the chain—upon which the mercantile activity of the play, and the many social and political relationships that circle it, turn? One possible answer is that Shakespeare, like his contemporaries, was interested in the more philosophical side of the shift in contractual thinking from right to tort. Baker has commented, following the work of Helmholz, that the shift from

18

Baker, ‘New Light on Slade’s Case’, n 4 above, at 414.

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debt to assumpsit in the sixteenth century reflected a shift in the concern of the law from the upholding of the promise to the loss caused by the breaking of the promise.19 We have seen already how the pessimistic fatalism of Egeon, of Adriana, of Antipholus, and of Dromio leads successively, in practically every scene, to further error. But, taking a larger view, The Comedy of Errors is also a play about the fungibility of person, a theme Shakespeare often takes up in his negotiation of subject and object in the comedies.20 One of the crucial upshots of the rise of assumpsit was the relatively pessimistic approach it took, not only to risk, but to the knowability of the human subject. Rather than maintaining the rights of an agreement, the law began to recognise risk as an opportunity for tortious loss; furthermore, it recognised the imported promise in a contractual agreement only in order to avoid it, and to restrict itself to the material damage caused by the breaking of the promise. As in, say, the move from psychological reality (Lucrece’s guilt) to precedential thinking (what other women might use Lucrece’s example for) in The Rape of Lucrece,21 in The Comedy of Errors we witness the collapse of a meaningful subjectivity in the face of a world of fungible signs: a collapse all the more painful because, in the resolution of the errors of the twinning plot, we have been expecting the opposite. Thus, the courtesan is hardly bothered when she demands her ring back from Antipholus of Ephesus; as she says toward the end of Act 4: Give me the ring of mine you had at dinner, Or for my diamond the chain you promised, And I’ll be gone, sir, and not trouble you. (4.3.60–2)

When Antipholus of Ephesus does, finally, restore her diamond ring, in the final scene, it comes with a quitting thanks: ‘There, take it, and much thanks for my good cheer’. We are invited to take the relationship between Antipholus and the courtesan as a model—a comic one—for social and sexual transaction; once the material signs of the relationship have been restored, the relationship has been fully discharged. But the pain of Adriana, who has by the Abbess been ‘betrayed to [her] own reproof ’, remains unconsoled. While the characters of the play are restored, in the play’s final actions, to their property, they are not restored to themselves; Antipholus will not soon forget the readiness of his business associates to prosecute him; Adriana will not soon forget her husband’s readiness to fall into the arms of a courtesan; and the Dromios bear the marks of their servility on their heads.

19

See JH Baker, The Reports of Sir John Spelman (London, Selden Society, 1978) vol II, 257–8. Obvious analogies to the fungible twinning of The Comedy of Errors appear not only in Twelfth Night, but in the bed tricks of Measure for Measure and All’s Well That Ends Well, in the rapid exchange of Hermia for Helena in the core scenes of A Midsummer Night’s Dream, and in the discovery of ‘another Hero’ in Much Ado About Nothing. 21 ‘No dame hereafter living / By my excuse shall claim excuse’s giving’. See The Rape of Lucrece, 1714–15. 20

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Another possibility arises from one of the arguments consistently rehearsed by Common Pleas judges in their antagonism for King’s Bench practice. In the aptly named case of 1595, Paramour v Payne, Thomas Walmsley noted that an agreement should only sound in assumpsit when, because of the special circumstances of its formation, it could not sound in debt: Action on the case is so called from cadendo, because something happens in it which does not happen in other cases. For where you have an ordinary action of debt, you may not have action on the case unless upon special cause. As, in this case, if the money were payable at Michaelmas and for non-payment of it the other will forfeit his bond of £20, or such similar casual or special thing, action on the case lies. Otherwise not.22

This is an important reformulation of the argument that a single cause should not give rise to two distinct forms of action at law. The availability of the assumpsit action for recovery in contractual non-feasance, by this reasoning, hinged on the special—the particular—nature of the contract. The extension of the assumpsit remedy to cover any executory contract, after Slade’s Case, thus (in the common way of exceptions) made the exception the new rule, universalising the special condition of the action on the case. This development of the King’s Bench assumpsit action, then, looks invitingly like the comic process from a crisis of individuality to a social resolution. Hoping for recognition, comic protagonists drive toward a conclusion that, instead, typifies them. Hoping for a judgment more in line with conscience, sixteenth-century litigants produced, from the wreck of a special action, a new general form. With all this in hand, the earliest recorded performance of The Comedy of Errors, in Gray’s Inn, during the revels at Christmas 1594, begins to look substantially more significant than Shakespeare scholars have tended to admit. As recorded in the 1688 printing of the Gesta Grayorum, presumably based on a contemporary manuscript witness, the elaborate revels of that year centred on the state and pomp of the Inn’s own Prince of Purpoole, who was invested with his dignity on 20 December. The first significant event of the festivities occured on Innocents Day, 28 December, when the Inner Temple’s ambassador, as from their own prince Frederick Templarius, was received in a lavish show of stately amity. Immediately following the formal exchange of honours between the Grayan prince and the Templarian ambassador, ‘a disordered Tumult and Crowd’, with ‘Throngs and Tumults’ intruded into the presence, whereupon the ambassador, taking offence, departed in dishonour and the Grayans were disgraced. The account famously concludes of that night’s festivities: In regard whereof, as also for that the Sports intended were especially for the gracing of the Templarians, it was thought good not to offer any thing of Account, saving Dancing

22 BL MS Harleian 4552, f 92, translated and cited by Baker, ‘New Light on Slade’s Case’, n 4 above, at 413.

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and Revelling with Gentlewomen; and after such Sport, a Comedy of Errors (like to Plautus his Menaechmus) was played by the Players. So that Night was begun, and continued to the end, in nothing but Confusion and Errors; whereupon, it was ever afterwards called, The Night of Errors.23

The supposed disamity between the two Inns was probably itself staged, and the errors scripted in order to make way for the elaborate restitutions that followed: a mock trial of the sorcerer (ie playwright) who was supposed to have caused the tumults and, by consequence, the rift; and, following that, an elaborate masque laid on before a celebrity dinner audience on 3 January, in which the allegorical figures Graius and Templarius approached the altar of the Goddess of Amity and reaffirmed their bonds of mutual friendship. Error, in this view, was nothing but a scripted ‘occasion’ (the Gesta’s exact word) for the inevitable reconciliation and the ‘recovery’ of lost honour. The pattern of error and reform which structures the 1594 revels in Gray’s Inn plays out, in large, the structures of error-return and consideration-completion that we have been noting in The Comedy of Errors. The analogy is so striking that, while it would be wrong to suggest that the play was written for the revels, there can be no doubt that the revels were designed and scripted with the play (whether new or old) carefully in mind: Thus was this Shew ended, which was devised to that End, that those that were present might understand, that the Unkindness which was growing betwixt the Templarians and us, by reason of the former Night of Errors, and the uncivil Behaviour wherewith they were entertained, as before I have partly touched, was now clean rooted out and forgotten, and that we now were more firm Friends, and kind Lovers, than ever before we had been, contrary to the evil Reports that some Enviers of our Happiness had sown abroad.24

In fact, like the play, the account of the masque also turns on the word ‘consideration’,25 and as in the play the theme of contract and promise, as played out in honour, credit and performance, dominates. The relationship between Gray’s Inn and the Inner Temple is key to the revels, just as the bonds between Egeon and Antipholus, Antipholus and Adriana, and Antipholus and Dromio are central to The Comedy of Errors; and, as in the comic play, the relationship must sour before it can be revived, even stronger than it had been before. The

23 Gesta Grayorum: Or, the History of the High and Mighty Prince, Henry, of Purpoole (London, W Canning, 1688) 22. 24 Ibid 26. 25 ‘When we were wearied with mocking thus at our own Follies, at length there was a great Consultation had for the Recovery of our lost Honour. It was then concluded, that first the Prince’s Council should be reformed, and some graver Conceipts should have their places, to advise upon those things that were propounded to be done afterward. Therefore, upon better Consideration, there were diverse Plots and Devices intended against the Friday after New-years-day.’ See Gesta Grayorum, n 23 above, at 24.

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difference between the play and the revels, of course, lies in the phrase, ‘now clean rooted out and forgotten’; the pessimism of assumpsit thinking that dominates The Comedy of Errors, and leads Egeon (like his namesake King Aegeus),26 as well as Adriana, to fatalistic resignation at the mere hint of risk, evaporates in the perfomance spectacle of the Gray’s Inn masque. Where the ‘sorcerer’ had been indicted for his ‘staging’ of the errors on Innocents Day, it is, again, the ‘staging’ of the reconciliation that allows Gray’s Inn to regain its honour on 3 January. Social peace is possible at the end of the revels because the errors have been struck from the record; only the law, which takes cognisance of intention and other fantastic, incorporeal substances indirectly, by means of the actions which represent them, can obliviate error. Or perhaps not only the law; perhaps Shakespeare’s comedy, which presents us with unignorable pathos only that we may come to ignore it, can also strike errors from the record.

TO WHAT END THE CAUSE? I have suggested here the ways in which a reading of The Comedy of Errors should be alive to sixteenth-century developments in the common law of contract. Without an awareness of these developments, I have argued, the reader cannot make full sense of Egeon’s and Adriana’s fatalism, or understand how that fatalism participates in the comic genre’s emphasis on social performance. Shakespeare’s acquisitive intelligence appropriated contemporary legal debates about the nature and regulation of promises, presumably, in order to enrich the comedy’s representation of selfhood, trust, credit, narrative, and so on. But to suppose that the legal allusiveness and even legal thinking of the play are not accidental effects is not to solve, but to provoke, interpretative problems. Is a sustained engagement with contemporary legal argument in a play of this kind (especially one performed in an Inn of Court context, before an audience of lawyers and law students) evidence of an irreducible social or political instrumentality? Should our awareness of Shakespeare’s engagement with the law, with its pragmatic epistemology, lead us to draw literature to law, or law to literature? There are, of course, various plausible ways to explain and interpret Shakespeare’s recourse to legal thinking in this play, as in his other plays and poems, and it would be imprudent and impractical to attempt to adjudicate upon them too summarily here. A playwright, for example, can be expected to write for his audience; and whether The Comedy of Errors was first staged at Gray’s Inn, or 26 It must be mentioned somewhere that, as Egeon takes his name from Aegeus, the king of Athens who leapt prematurely to his death from the cliffs at Sunion, so Solinus must take his from Solon, the Athenian law-giver famous for counting no man happy until his death. Between these two extremities, of fond prolepsis and terminal circumspection, the error of a human life must carve out some sort of Aristotelian middle way.

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revived and possibly rewritten for its revels performance, Shakespeare’s awareness of debates over assumpsit would probably have gone down as well with termers on the public stage, as with lawyers in their hall. Or, again, Shakespeare might consciously or unconsciously have reflected in his work the dominant practical philosophy of the day, which he could have received by a number of direct and indirect paths. But the particular legal matter that appears in The Comedy of Errors seems to suggest its own, peculiar, response to the problem of the legal in Shakespeare’s literary writing, and it is to this implied argument, without weighing or dismissing any of the many other reasonable approaches, that I would like to devote a few closing paragraphs. The word ‘cause’ figures insistently in the opening scene between Egeon and Solinus, as one might expect from a play preoccupied with the considerations or causae associated with promises implied and declared. Solinus demands of Egeon: Well, Syracusian, say in brief the cause Why thou departed’st from thy native home, And for what cause thou cam’st to Ephesus. (1.1.28–30)

Egeon takes up this request because he wants to acquit himself from ‘vile offence’; presumably, the greed which might have driven other Syracusan merchants to trade, against the law, in Ephesus. Cause figures, similarly, at two other key moments of the play: when Adriana and Luciana discuss the origin of Adriana’s jealous suspicion of her husband (2.1.32–3), and when Antipholus of Ephesus, finding himself locked out of his house, begins to doubt his wife’s fidelity (3.1.86–93). In all three cases, we watch Shakespeare’s characters run headlong, by mistaken and fatalistic assumptions based on these causes, into error. In epistemological terms, the fatalism of Egeon in the first act, of Adriana in the second, and of Antipholus of Ephesus in the third, represents a kind of dogmatic response to the significant; each of these characters is effectively saying, in response to their circumstances, ‘this could mean only one thing’. The action of the play, in which Solinus’s view of Egeon is confounded, Egeon finds himself ransomed, Adriana is restored to her husband, and Antipholus discovers that his wife has been faithful with his long-lost brother, serves, then, to undermine the epistemological stability of the causa in each case. Upon consideration, these causes issue in unexpected ends. The judges of the King’s Bench and the Common Pleas sought, in the 1590s, to come to some agreement over the proper relationship between promises, evidence of promises and contracts; ultimately, in the arguments on Slade’s Case, they would move toward the position that, in every bargain, the consideratio imported a distinct promise to pay, which allowed the plaintiff to sue an assumpsit on the promise, rather than, as in the past, an action of debt on the contract. The common law courts were thus moving, in the early 1590s, toward certainty in two ways: more obviously, they were striving to offer more reliable

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and consistent justice to their litigants; but, similarly, they were attempting to reduce something invisible and implied—the supposed promise to pay arising on any bargain—to something visible and explicit: the consideration. In a deftly ironic move, Shakespeare seems to invoke the common law of contract in The Comedy of Errors not to parade its developing hermeneutical stability, but to expose its instability. In moving toward a system of signs, the common law logic of the consideratio (like that of mens rea) was throwing open the finally insoluble problem of the knowability of intention.27 Shakespeare’s play, in its hyperbolic fatalism, seems to jeer at the epistemological smugness of the doctrine of consideration. Similarly, the common law was moving, as we have seen, from a general remedy (debt) to a special remedy (the action on the case) for nonfeasance on a contract; the shift in the common law from debt to assumpsit, then, seems to chart a movement away from the register and toward a more equitable response to real transactional problems.28 Shakespeare’s play, again ironically, seems to invoke this apparently equitable development only to travesty its supposed concern with individuals. In his play, characters’ absorption in their own causes only leads them further into error, while the exit from error seems to depend on their ability to ‘clean root out and forget’ their experiences. Ultimately, it is difficult to get beyond a simple claim that the language of assumpsit, and ideas about the changing law of contract, are present in The Comedy of Errors, and that they are brought to bear, analogically, on parallel problems in psychology, ethics and narrative; as a result of Shakespeare’s relentless ironising about the relation of causes to ends, there doesn’t seem to be any consistently corresponsive intentionality in the play, one that might instruct us how to interpret such an analogy or series of analogies. At best, the verbal intensities, the conceptual ambiguities and the striking systems of correspondences, taken together, leave us embedded in a structure of thought, which might lead us to recognise certain costs or opportunities, but which does not privilege any given interpretative choice over another. We do not end The Comedy of Errors believing assumpsit to be a disastrous development because it focuses the mind on the tortious wrongs associated with contractual risk; we might as easily say that the play prepares the ground for the resurgence of inviolate promise, as it was ultimately played out in the Gray’s Inn revels of 1594. Rather, we come away from The Comedy of Errors, I think, suspecting that the cost of a contractual remedy is the fugitivity of the promise; that the cost of finding another is the loss of the self; that the cost of an act of communication is the reality of the experience communicated; and that, by the same token, the reward is the 27 The ‘imaginary’ quality of the implied promise in a contract led to some concern during the run-up to Slade v Morley; see Baker, ‘New Light on Slade’s Case’, n 4 above, at 397 n 23 and 398 n 27. 28 It was the position of the Common Pleas judges during the debate over Slade’s Case that litigants ought not to ‘fly from the Register’ (Thomas Walmsley, quoted in BL MS Hargrave 7 Pt 1 f 188, cited in Baker, ‘New Light on Slade’s Case’, n 4 above, at 414). On the other hand, as Baker notes, this period saw several examples ‘of the common-law judges’ willingness to bring the law of their courts into line with conscience’; see Baker, n 19 above, vol II, 259.

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persistence of the promise, the recognition of the other’s loss as a compassionate sympathy, and the discovery of a new, hyperreality in the performance of identity. And yet the cause of those maniform suspicions is nothing but an evening’s error.

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II

Shakespeare, Women and the Law

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3 The Bawdy Court JONATHAN BATE

AWYERS AND COURT officers are better at writing things down than theatre people are. Whether a legal system has a Roman-style code or relies on case law, a paper trail is needed. Theatre, by contrast, is a makeshift, evanescent, oral form. That is why we have more glimpses of Shakespeare in and around the courts than in and around the theatre. The earliest occurrence of his name, after his baptism, is in the records of the diocesan consistory court in Worcester, where in November 1582 a special licence was obtained, via the lodging of the necessary bond of surety, for his marriage to Anne Hathaway. His name subsequently crops up in various suits for small debt in the Stratford Court of Record. And the only time we hear him speak in his own voice (save perhaps in the dedicatory epistles to Venus and Adonis and The Rape of Lucrece) is, as Charles Nicholl has so eloquently reminded us, when he appeared as a witness in the action of Belott v Mountjoy in the Court of Requests at Westminster. This too was a matrimonial case: Christopher and Marie Mountjoy were successful Huguenot tire-makers, ‘tire’ meaning head-tire or attire. They made head-dresses for the royal court and perhaps also for the theatre. Stephen Belott was their apprentice. As was common, a marriage was arranged between the daughter and the apprentice, with a view to sustaining the business in the next generation. A dowry of £60 seems to have been agreed, but was never paid, so Belott eventually took his father-in-law to court. At the time of the marriage arrangement, Shakespeare had been lodging for at least a couple of years in their house in Silver Street in the Cripplegate district of London, close to the residences of several of his fellow actors and other people with theatrical connections. When the dispute came to the Court of Requests in 1612, nearly a decade after the events in question, Mr William Shakespeare, gentleman of Stratford-upon-Avon in the county of Warwickshire, aged 48, was summoned to appear as a witness. In his deposition, he spoke up for Belott’s good character. But he also revealed that Mrs Mountjoy had enlisted his services ‘to move and persuade’ Belott to go through with the marriage. To move and persuade a young man to marry,

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somewhat against his will: the very matter of Shakespeare’s best-selling poem Venus and Adonis, of the first group of his sonnets, and of two plays that he wrote in the Silver Street years, Measure for Measure and All’s Well That Ends Well. Mrs Mountjoy was going to the right man for the job, and Shakespeare duly did the business. We learn from another witness that he actually presided over the hand-fasting ceremony that sealed the union. In the end, though, instead of resolving the case, the judge referred it to the arbitration of the elders and overseers of the French church in London. They awarded Belott 20 nobles, a lot less than the £60 he was demanding. Mountjoy, damningly, was recorded as being of a ‘licentious life’.1 Where do we begin a discussion of Shakespeare and love, Shakespeare and sex? Tempting as it is to turn straight to the sonnets or the courtship comedies, it is the law courts that allow us to stand on firmer ground. Linking Shakespeare’s love-life to his literary and theatrical works will always be a matter of extreme speculation, whereas it can be said with absolute certainty that Shakespeare’s marriage involved the obtaining of a special licence from one court when he was 18 and that his role in facilitating the Belott marriage led to his appearance in another court when he was 48. It can accordingly also be said with absolute certainty that Shakespeare’s thinking about the love between men and women was shaped by the knowledge of his own experience: that it could result in children, that once a woman was pregnant it was necessary for the sake of her social status that she should soon marry, and that marriage was a legal bond as much as an affair of the heart, a bond in which questions of portions, dowries and financial settlements played a major part. The referral of the Mountjoy case to the church fathers is a reminder that Shakespeare’s England was a place of multiple, sometimes competing legal jurisdictions. Matrimonial issues could be heard before either a civil or an ecclesiastical court. The church consistory courts, which still exist today, albeit stripped of almost all their powers, were established by a charter of William the Conqueror. They heard many cases involving sex, marriage, adultery and divorce. They were the place where love entered the public arena. The church-wardens reported to the vicar the names of any members of the community who had been guilty of adultery, whoredom, incest, drunkenness, swearing, ribaldry, usury, uncleanness and wickedness of life, absence from church, blasphemy, scandalmongering or bigamy. Less lurid matters were also addressed. Was the church in a good state of repair? Were all local schoolmasters, physicians and midwives properly licensed? In a parish such as Stratford, the local consistory court would have been set up inside the church. There was a raised seat for the judge (who was the vicar) and a large table for the notary and the witnesses to sit around. The crier would stand

1 See further, Charles Nicholl’s brilliant reconstruction of the affair and Shakespeare’s role in it, The Lodger: Shakespeare on Silver Street (London, Penguin, 2007).

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near the notary and the accused stood facing the judge. One might say: as in a play, everyone has his or her appropriate position on the stage. The charge was then read out (in the technical term, ‘objected’). If the accused admitted guilt, he or she would be dismissed with a ‘monition’ or ordered to do penance, which might be either fully public in church before the morning service on a Sunday or semi-public before the minister and local officials. Sunday services were two hours long, with a sermon that many people would have found immensely tedious. Witnessing a local man or woman being made to stand and do penance for some sexual misdemeanour would have livened up proceedings and furnished good material for gossip—the custom might be thought of as the Tudor equivalent of reading the latest scandal in the Sunday papers. In severe cases, the vicar ordered the extreme exposure of ‘white sheet penance’ in the marketplace on Thursday, the busiest day of the week: a rare event, but one to keep tongues wagging in the taverns. If the accused denied the charge, he or she was ordered to return to the church court on a subsequent occasion and ‘purge’ him or herself by swearing innocence on oath. Neighbours (‘compurgators’) could swear their support. Upcoming purgations were announced several days in advance. Those opposing a purge were called three times to come forward. The triple call to state an objection was a customary practice: there is an analogy with the calling of the banns of marriage three times, and indeed with the three calls of the trumpet upon which objectors are summoned to challenge Edmund’s right to the title of Duke of Gloucester in King Lear. Contentious cases were known as ‘instance’ cases. If the accused failed to appear in court having been summonsed to purge themselves (given a ‘citation’), they were pronounced ‘contumacious’ and excommunicated. Minor excommunication, the more common punishment, meant exclusion from church and the sacraments. Major excommunication meant being cut off from ‘the communion of the faithful’ to the full extent of exclusion from both commercial activity and the benefit of the law. Some of the legal vocabulary of the consistory court bleeds into Shakespeare’s plays. Thus, when he uses the word ‘purge’ and its cognates, the connotations are usually medical, but occasionally suggestive of ecclesiastical law, as with ‘You must be purgèd too’, with regard to Berowne’s breach of his oath in Love’s Labour’s Lost, and ‘Here I stand both to impeach and purge / Myself condemnèd and myself excused’, with regard to Friar Laurence’s role in the events of Romeo and Juliet.2 Does Petruchio in The Taming of the Shrew assault his wife? Does Kate speak slander? Should Proteus be charged with attempted rape of Silvia in The Two Gentlemen of Verona? Who got the dairy-maid Jacquenetta pregnant in Love’s Labour’s Lost and what should be done about it? In Much Ado About Nothing, did Hero sleep with a man other than her husband on the night before her wedding

2 Love’s Labour’s Lost, 5.2.816; Romeo and Juliet, 5.3.235–6. All quotations are from J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007).

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day? Is there any justification in Master Frank Ford’s suspicion in The Merry Wives of Windsor that his wife has been committing adultery? Did Angelo in Measure for Measure break a binding spousal contract when he pulled out of his marriage with Mariana, on discovering that she would not bring him a sufficient dowry? In the same play, should Claudio and Juliet be punished for fornication? Did Bertram commit adultery and otherwise abuse his wife Helen in All’s Well That Ends Well? Does Hermione’s child in The Winter’s Tale belong to her husband? Is there evidence for Iachimo’s accusation in Cymbeline that Innogen is wanton? Is the marriage between Romeo and Juliet legal, in the light of her young age and the absence of parental consent? Is Desdemona guilty of adultery or Iago of slander? Such questions drive the plots of Shakespeare’s courtship comedies and marriage tragedies. The same questions are often to be found in Shakespeare’s sources, the repertoire of older comedies and his reading in English and Italian short stories. Anyone familiar with the Decameron of Boccaccio will know that the matter of sex and slander had long been a staple of literature. But before Shakespeare began reading such stories or performing in courtship comedies as an actor, he would have been exposed to questions of a similar kind when as a boy and a young man he witnessed his fellow-townspeople doing penance in the church or the marketplace, or when, as is bound to have been the case in a small community, he heard the gossip about the latest case to have come before the consistory court. Given the nature of its most interesting business, the people gave that institution a more colloquial name: ‘the bawdy court’. The records of the years before 1590 are lost, so we do not know the details of the cases that might have helped to shape young Shakespeare’s imagining of love’s entanglements. But we may gain a flavour of the sexual life of Elizabethan Stratford from the surviving act books, which cover the second half of Shakespeare’s life. He would certainly have known that in the year 1613 a man named John Lane of Alveston was accused of slander before the Bishop’s higher-level bawdy court at Worcester. Lane had publicly stated that one Susanna Hall, née Shakespeare, ‘had the running of the reins and had been naughty with Rafe Smith at John Palmer’s’.3 The plaintiff was Susanna herself and a witness in her support was Robert Whatcott, who just under three years later would be a witness to Shakespeare’s will. Lane ignored the citation to appear and defend himself against the charge. Susanna’s name was cleared (if a name can ever fully be cleared once an alleged scandal has reached the public domain) and Lane was excommunicated. On a single day in the Stratford court, Alice Clark was presented for saying that Elizabeth Reynolds was Abraham Allway’s whore, Katherine Shingleton failed to appear in answer to the charge that she had called widow Aldern a whore and said that all her children were bastards, and Anne Lane was alleged to have called

3 EK Chambers, William Shakespeare: a Study of Facts and Problems (Oxford, Oxford University Press, 1930) vol 2, 12.

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Katherine Trout a whore and ‘that William Bartlett hath publicly confessed before witnesses that Katherine Trout did come to bed with him’.4 One begins to see why a preacher at Paul’s Cross claimed that half the children in the land would be bastards were it not for the church courts. Shakespeare’s brother Richard and his sister Joan were both cited as defendants, in separate cases, in the year 1608, but the act book does not record details of the accusations against them. There are, however, cases among the Stratford bawdy court presentations for fornication or adultery that touch indirectly upon Shakespeare. Katherine Getley, daughter of the man from whom he bought a cottage in Chapel Lane opposite New Place, was excommunicated for begetting a bastard, and Judith, the daughter of Hamlet and Judith Sadler (godparents to Shakespeare’s twins) was cited for sexual incontinence. The creator of Angelo in Measure for Measure would have taken pleasure in the news that Daniel Baker, Stratford’s leading Puritan, who as town bailiff ensured that travelling players were banned from performing in the Guild Hall, was excommunicated for failing to answer the charge that he had got a woman with child and reneged on his promise to marry her. And, most famously, just four weeks before Shakespeare’s death, the acts of the consistory court before John Rogers, vicar, in the parish church of Stratford on Thursday, dated 26 March 1616, in the presence of Richard Wright, deputy of Thomas Fisher, notary public, include the following indictment: Thomas Quiney: for incontinence with a certain Margaret Wheeler: cited by Greene: he appeared: admitted that he had had carnal copulation with Wheeler: submitted himself to the correction of the Judge: ordered public penance in a white sheet on three Sundays in the church of Stratford: therafter he proffered 5s. for the use of the poor of the parish and petitioned the penance to be remitted: ordered to acknowledge the fault in his own attire before the minister of Bishopton according to the schedule: to certify before the next court: dismissed.5

Margaret Wheeler and her illegitimate child had been buried a few weeks earlier, presumably as a result of complications at the time of birth. But there was another woman in the case: Quiney was betrothed to Shakespeare’s daughter Judith at the time. His incontinence and the shame it brought to Shakespeare’s family, together with the anxiety that he might not prove a reliable husband, caused Shakespeare to change his will in such a way as to protect Judith’s interests while at the same time limiting the amount of money that Quiney could get his hands on in the event of marital problems. As Shakespeare’s first appearance in the archive subsequent to his baptism was in relation to his own marriage case before the Worcester consistory court, so his last appearance prior to his death

4 ERC Brinkworth, Shakespeare and the Bawdy Court of Stratford (London and Chichester, Phillimore, 1972) 166. I am much indebted to this study. 5 Ibid 143.

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was this alteration of testamentary arrangements, made as a direct result of Quiney’s appearance in the Stratford consistory court. For Shakespeare, fascinated as he was by the energies of expressive speech, another kind of bawdy court case would have provided rich raw material: the blasphemy suit. In the Stratford court we find the aptly named Joan Taunt accused of leaving church in the middle of the sermon in a highly theatrical manner: ‘beckoning with her finger and laughing’ and ‘swearing by the name of God’. So too was Elizabeth Wheeler called before the court in October 1595 for brawling and abuse. Her response was to say ‘God’s wounds, a plague of God on you all, a fart of one’s arse for you’.6 For this eloquent outburst, she was excommunicated. But at least her voice was heard. Women, who were habitually encouraged to be silent and submissive, had the opportunity to become active agents in the bawdy court, just as fictional women are active agents—usually wittier and more eloquent than the men—in Shakespeare’s comedies. According to one historian, in the city of London in the early seventeenth century, 80 per cent of sex and marriage cases were brought to the bawdy courts by women.7 A woman’s reputation was her most precious commodity. The bawdy court was the place where she could publicly defend her honour. But it was also the place where quarrels between women could be played out in a ritualised fashion. To call another woman a whore was not necessarily to accuse her of actual adultery. Elizabeth Stokes, a 20-year-old servant, heard Phoebe Cartwright call Margery Hipwell an ‘impudent quean’ in Fleet Street at seven o’clock one April morning. Elizabeth, however, ‘did not think that Phoebe Cartwright by calling Margery Hipwell quean did mean that she had committed fornication or adultery or played the whore with any man but only spoke the same words in her anger’8 after a quarrel between the two women and Margery’s husband. In this regard, the bawdy court served a similar role to the theatre: as a safety valve where society could release anger and shame in a ritualised fashion that reduced the likelihood of public disorder. Women’s cases in the city bawdy courts often did not reach the stage of the plaintiff asking for a definitive sentence. In many cases, women seem to have been more interested in having their complaint heard in court than in obtaining judgment. Men were more likely to want a result. Shakespeare’s plays resemble women’s cases more than men’s: whereas the source stories of, say, Romeo and Juliet and Othello offer moralisations about the case, the plays want the lovers’ stories to be heard and do not press the audience towards condemnation of marriage against parental will or youthful passion or miscegenation. The bawdy court, like the theatre, was a place of rich linguistic invention in the semantic field of sexual insult. Women did not hesitate to call each other

6

Ibid 122, 128. Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford, Oxford University Press, 1996) 36. 8 Case of 1613, quoted ibid 69. 7

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‘maggoty whore’, ‘mangy carrion’, ‘shitten whore’, ‘pocky lousy hedge whore’, ‘tinker’s trull’, ‘scurvy fart arse quean’, ‘gouty-legged whore’, ‘daggletail queen’, ‘Welsh jade’, ‘high Dutch whore’, ‘Hackney whore’, ‘St Katharine’s whore’, to accuse one another of being ‘as common as a barber’s chair’ or of having been ‘occupied under every hedge over thy milk pail’.9 That verb ‘occupy’ frequently occurs in sex cases, as when one Isabel South accused Richard Todd in the following terms: ‘thou art a whoremaster and thou didst offer to give me an angel of gold to occupy me and thou didst offer another man’s wife the making of an oven to occupy her’.10 When Othello laments that his ‘occupation’ is ‘gone’, he is referring not only to his military career but also to his sexual possession of Desdemona. In the bawdy court cases, it is usually women who spread gossip, sexual insult and slander. In Othello it is Iago who plays this role. The bawdy court was the testing-place of woman’s ‘reputation’.11 In Othello, it is Iago who destroys reputations by acting as a malicious bawd. Shakespeare did not explicitly dramatise the business of women going to the domestic courts, as the legally-trained John Webster did in his play The Devil’s Law Case; or, When Women Go to Law the Devil is Full of Business, or indeed his great tragedy The White Devil, at the centre of which Vittoria Corombona dominates a courtroom. Nor did Shakespeare churn out city comedies on the lines of Henry Porter’s Two Angry Women of Abingdon, which turns on a ‘woman’s jar’ between neighbours where, in a twist typical of bawdy court cases, blame is shifted from an adulterous husband to his mistress: ‘she is a strumpet and thou art no honest man / To stand in her defence against thy wife’.12 But he did bring to the stage exactly the kind of sexual slander that preoccupied the bawdy courts. In many a bawdy court case, a woman slanders another woman. Strikingly, Shakespeare’s malicious gossips and accusers are men, not women: not only Iago, but also Claudio, Don John and his followers in Much Ado About Nothing, Bertram in All’s Well That Ends Well, Posthumus in Cymbeline, and for that matter the entire body of the Greek generals slandering Cressida in Troilus. Gossip, bawdy court case and stage comedy share a repertoire of stories and story-telling techniques. Both Measure for Measure and All’s Well That Ends Well turn on a ‘bed trick’ in which a man thinks that he is committing adultery or fornication but is actually sleeping with his wife or his betrothed. Such tricks abound in the popular literature of the age, but they also found their way into court cases. Elizabeth Trimmell, a London grocer’s widow, claimed to have been

9

See ibid 66–7. Case of 1610, quoted in Gowing, n 7 above, at 72. Lisa Jardine skilfully reads Othello in the light of defamation cases in her essay ‘“Why Should He Call her Whore?” Defamation and Desdemona’s case’ in her Reading Shakespeare Historically (London, Routledge, 1996) ch 1. 12 Henry Porter, Two Angry Women (1599) 1.2.522–7, quoted in Gowing, n 7 above, at 123. 10 11

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defamed by a story in which a Herefordshire gentleman was put off from paying court to her by some gossip that he had heard: I did hear that Mrs Smith, the widow of Wilfred Smith, did make show of going to a sermon unto St Anthonlin’s church in London and that her husband mistrusting that she was a dishonest woman of her body, and that she going without a man went to play the whore, followed after her, and observed her to go into a bawdy house in St Swithins Lane in London and her husband went into a barber’s shop near unto his wife and caused his beard to be shaved and altered his clothes and then went into the bawdy house after his wife and desired to have a wench brought him, and there was answer made unto him by the bawd that there was none in the house, but such as was very dear, and the husband of the said Elizabeth Trimmell alias Smith asked how dear and the bawd answered that he might have one for five pieces and he told her the bawd that he would give five pieces if he liked the party and gave her a piece in earnest, whereupon the said Elizabeth Smith was brought to her husband Wilfred Smith by the bawd, not knowing he was her husband. But so soon as the said Elizabeth Trimmell alias Smith heard her husband’s tongue and perceived that he was her husband she … ran away from him and went home and said that she was undone, and her husband followed her home and suddenly fell sick and died with grief.13

The interplay of deception, disguise and discovery here is so theatrical that one wonders whether the story was invented as a result of the reading of a story or the witnessing of a play rather than out of any basis in reality. The theatre gave to London’s citizens linguistic and narrative models for the telling of sexual stories in the bawdy courts. Just as in any good play all the characters have their own distinctive view of the action, so in the courtroom plaintiff, defendant and witnesses each offer a different version of the same story. There is no doubt that the theatre-world was particularly associated with sexual licence, which is one of the reasons for Puritan hostility to stage-plays. Prostitutes worked the theatre district and even the auditorium. And women employed in the theatre business were sometimes accused of being no better than sex-workers themselves: ‘there are no women that keep playhouse doors but are whores’ claimed a plaintiff in a case of 1607.14 There is a sense, then, in which the theatre, so often condemned as a place of extreme bawdry, functioned as an alternative bawdy court. Playhouse and consistory court were the two public arenas where questions of sexual behaviour, particularly on the part of women, were explored in graphic and verbally creative detail. A church court and a staging of The Taming of the Shrew: each in its way could be a testing of the limits of domestic violence and the language of sexual combat. An examination of the terms of insult habitually used in the courts throws new light on the play. Reference to a woman’s ‘tail’ was always a sexual

13

Case of 1629, quoted in Gowing, n 7 above, at 68. Quoted in Gowing, n 7 above, at 14. See also ibid at 118 for a case involving Joan Hewes, a woman who took the box office money and sold fruit at the Red Bull theatre in Clerkenwell. 14

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insult in court; by contrast, in the dialogue of the play, Kate positively relishes— finds liberation in—her banter with Petruchio concerning his tongue in her tail. To a Shakespearean audience, the trial of Queen Hermione for adultery in The Winter’s Tale would at one and the same time have evoked a high-level treason trial and a mundane bawdy court marital case. Every time the bawdy court was set up in a parish church, a place of worship was converted into a place of litigation. Such an instant transformation of church into bawdy court occurs in the wedding ceremony scene of Much Ado About Nothing when Claudio accuses Hero of infidelity. The Friar’s role switches from that of minister performing the sacrament of marriage to bawdy court judge hearing a case of sexual ‘slander’. Again, in Measure for Measure, Mariana (like all those real-life women who had the courage to go publicly before the ecclesiastical courts) takes her marital complaint before the Duke, turning the stage into another bawdy court. Shakespeare’s most sustained dramatisation of bawdy court matter occurs at the climax of All’s Well That Ends Well, one of the bitter comedies that he seems to have written around the time that he was being dragged into the marital business of the Mountjoy household on Silver Street in Cripplegate. From first to last, the closing scene of the play is steeped in the language of court proceedings. Bertram is called before the tribunal. His ‘great offence’ of infidelity to his wife Helen is cited. He attempts to excuse himself. Witnesses give differing accounts of a ring, the key piece of evidence in the case. A petitioner appears before the court. There is a call for justice to be done. Diana makes her complaint and calls for ‘remedy’. Bertram responds to this further ‘charge’. The question of ‘reputation’, and in particular the ‘honesty’ of a woman, is central to the case: is Diana a chaste maid or ‘a common gamester to the camp’? The ‘proof ’ offered by the ring is again invoked: ‘Methought you said’, notes the King who is playing the part of judge that the vicar would have played in a bawdy court, ‘You saw one here in court could witness it’. Bertram speaks with the casual sexual language that marks many a bawdy court case: ‘Certain it is I liked her, / And boarded her i’ th’ wanton way of youth’. Parolles is then called as a witness. A judgment is reached. There is talk of ‘bail’ and ‘surety’. And then the coup de théâtre: Helen, supposedly dead, appears and a happy resolution is achieved. Provisionally, at least: ‘All yet seems well’ says the King, not ‘all is well’. Helen’s response to Bertram’s promise that he will ‘love her dearly, ever, ever dearly’ provided she can explain how she has contrived to make him ‘doubly won’ implicitly raises the threat of a return to the consistory court, should he not behave better second time around: ‘If it appear not plain, and prove untrue, / Deadly divorce step between me and you’.15 Not all the language of this scene belongs specifically to the church court: Shakespeare’s stage trials use a broad legal lexicon, fusing together the multiple jurisdictions of the age. But it would unquestionably have been the bawdy court that audience members would have held in mind when they witnessed the

15

All quotations in this paragraph from All’s Well That Ends Well, 5.3.

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resolution of a marital dispute of this kind. The difference between the play and a real-life case is that the audience in the theatre are privileged witnesses who know what ‘really’ happened. The spectators are called not to factual and legal but to emotional and moral judgement.

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4 Shakespeare and the Marriage Contract GERMAINE GREER

ARRIAGE IN SHAKESPEARE’S time was a matter of negotiation. Even when both parties had attained their majority, and were at their own disposal, they did not often marry without the assistance of ‘friends’. These could include the parents of either party, or their employers and patrons, or simply gentlemen who could be trusted to arrive at fitting terms for a settlement and see that they were carried out. It will be remembered that the marriage bond signed by Fulke Sandells and John Richardson for Will and Ann Shakespeare stipulated that William ‘not proceed to solemnisation of marriage with the said Ann Hathaway without the consent of her friends’.1 ‘Friends’ is here a technical term referring to the makers of the match, who were more likely to be neighbours than kinsmen, for whom there could have been a conflict of interest. The same ‘friends’ would often be required to act as trustees or executors of a deceased father’s estate, in which case it was their duty to raise a daughter’s portion in cash from that estate, something that was not always easy and sometimes impossible. In Shakespeare’s England where there were no banks, cash was not left sitting around. Even when sums had been earmarked for children’s portions, the money was usually lent out at interest until the time should be right. As literacy and financial competence were required of friends, they were often of higher social status than the people they acted for. The friends were morally bound to protect the interests of one or other party to the marriage, having been pledged to do so by the parents, living or dead. Fulke Sandells and

1 Worcestershire Record Office, X 797 BA 2783, reproduced in Samuel Schoenbaum, William Shakespeare: a Documentary Life (Oxford, Clarendon Press in association with the Scholar Press, 1975) fig 59.

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John Richardson, overseer and witness respectively to Richard Hathaway’s will in 1581,2 were acting as informal trustees for Hathaway in the matter of his daughter’s marriage a year later. Though we are all well aware that in the early modern period royal marriage negotiations were conducted by go-betweens, we tend to forget the importance of negotiation and settlement in the lives of ordinary people. The usual assumption—that such matters concerned only the rich—is quite wrong. Both sides in a marriage were concerned to bring something to and get something from the alliance. In Henry VI Part 1, when Henry is about to enter into marriage with Margaret of Anjou, who brings no dowry, Suffolk, chief mover of the disastrous match, sneers: A dower, my lords? Disgrace not so your king That he should be so abject, base and poor To choose for wealth and not for perfect love. Henry is able to enrich his queen And not seek a queen to make him rich— So worthless peasants bargain for their wives, As market-men for oxen, sheep or horse. Marriage is a matter of more worth Than to be dealt with by attorneyship. (5.5.48–56)

Suffolk is exactly wrong; marriage is a matter of such worth that it must be dealt with by attorneyship, because the principals unaided cannot be trusted to behave with due discretion. Suffolk’s contemptuous dismissal of dowry makes clear that even the lowest classes made enquiry as to what would be given with a wife. In Deloney’s novella, Jack of Newbury marries as his second wife his housekeeper. To make the match, her poor parents have scraped together 20 nobles and a yearling calf to give with her, along with the assurance that her new husband will be her father’s sole legatee: ‘O my good son’, quoth the old woman, ‘God’s benison be with thee forever more, for to tell thee true, we had sold all our kine to make money for my daughter’s marriage, and this seven year we would not have been able to buy more. Notwithstanding we should have sold all that ever we had before my poor wench would have lost her marriage’. ‘I’, quoth the old man, ‘should have sold the coat from my back, and my bed from under me, before my girl should have gone without you’.3

2 National Archives, Prob 11/64/31, formerly among the records of the Prerogative Court of Canterbury at Somerset House; Schoenbaum, n 1 above, fig 60. 3 Thomas Deloney, ‘The Pleasant Historie of Iohn Winchcombe, in his Yonguer Yeares called Iack of Newberie’ in Shorter Novels: Elizabethan (introduced by George Saintsbury, London, J M Dent and Sons, 1960) 27.

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Just so, Perdita is promised an equal portion by the unknowing shepherd in The Winter’s Tale. ‘Take hands, a bargain!’ he cries, and begs the gentlemen who look on to witness the deal: ‘And, friends unknown, you shall bear witness to’t. / I give my daughter to him, and will make / Her portion equal his’. (4.4.378–81) A woman who has no dowry is as like to have no husband. When Lear disinherits Cordelia she immediately loses one of her suitors, who would have been considered perfectly justified in withdrawing from the match. A woman who was married in her shift, that is, with nothing, was at the mercy of her husband, who could leave her as ill-provided as he found her. In The Pleasant Comodie of Patient Grissill (1603), when Patient Grissell is sent back to her father’s house by her husband the marquis, she is allowed to take nothing with her but her hat, her russet gown and her pitcher. At first she also has twin babies but even they are subsequently removed from her custody.4 We learn in Measure for Measure that Mariana’s proposed match is not made ‘Partly for that her promised proportions/Came short of composition’ and Claudio’s wedding has not been solemnised ‘Only for propagation of a dower/Remaining in the coffers of [Julia’s] friends’. (Measure for Measure, 5.1.218–19, 1.2.138–40) Just so, Perdita mourns that though she and Florizel are contracted and have cohabited, they are not married: ‘The heaven sets spies on us, will not have / Our contract celebrated’. When Leontes asks: ‘You are married?’, Florizel replies: ‘We are not, sir, nor are we like to be’. Florizel’s father’s consent has been withheld because Perdita ‘is not so rich in worth as beauty’ (5.1.202–4). The concept of ‘worth’ or ‘credit’ confounds goods with good name. A woman’s dowry provided an assurance of her moral value as well as pecuniary advantage. A woman without goods was as likely to be without good name.5 No dramaturgy in any European country before Shakespeare presented marriage as the substance of the plot. If there were old plays in which wooing ended with Jack having Jill and nought going ill, we have lost them.6 In Shakespeare, marriage is not always the end of the play; ‘tying the knot’ is as often a complication that requires ‘dénouement’. In All’s Well That Ends Well, the contract between Helena and Bertram is brokered on stage by the King, acting in the interest of the orphaned Helena. He invites Helena to choose one of his attendant lords; Helena selects Bertram and, in speaking a version of the words de praesenti, all but marries him on the spot: ‘I dare not say I take you, but I give / Me and my service forever whilst I live / Into your guiding power’. The King instructs Bertram: ‘Why then young Bertram, take her. She’s thy wife’. When Bertram rebels, the king threatens him with loss of royal favour, reiterating his command:

4 Thomas Dekker, The Pleasant Comodie of Patient Grissill as it hath beene sundrie times lately plaid by the … Lord High Admirall, his seruants [ Henry Chettle, Thomas Dekker and William Haughton] (1603). 5 Amy Louise Erickson, Women and Property in Early Modern England (London, Routledge, 1993). 96. 6 Love’s Labour’s Lost, 5.2.866-–8.

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‘Take her by the hand, / And tell her she is thine, to whom I promise / A counterpoise, if not to thy estate / A balance more replete’. Bertram takes her by the hand and we have a contract: Good fortune and the favour of the king Smile upon this contract, whose ceremony Shall seem expedient of the now-born brief, And be performed tonight. (2.3.102–5, 173–80)

This marriage, though the contract has been witnessed and the ceremony performed, is not a real marriage until Helena contrives its consummation in Act 4. Shakespeare himself had been called upon to act as broker in the marriage of Mary Mountjoy, daughter of the fashionable tire-maker Christopher Mountjoy, in whose house Shakespeare was lodging, and her father’s one-time apprentice Stephen Belott. Mountjoy instructed Shakespeare to tell Belott that Mary would have a cash portion of £60 if she married Belott and otherwise nothing, and that Belott would inherit £200 on Mountjoy’s death. Shakespeare may also have advised Belott that Mountjoy expected him to work for him, but instead the couple set up a rival business. All they ever got from Mountjoy was £10 and some old household stuff. In 1612 the case came before the Court of Requests; as principal negotiator of the match Shakespeare was called to give evidence as to the exact terms of the settlement. He had told another witness that Mountjoy had undertaken to give money and ‘certain household stuff ’ with his daughter but when he actually appeared on 11 May he could not remember any of the details.7 All Shakespeare’s biographers have made light of Shakespeare’s failure to act like the gentleman he was supposed to be. The whole point of asking him to act in the first place was to have the benefit of his evidence in the case of any disagreement or defalcation. Shakespeare should have made a note of the agreement he had brokered, but apparently he didn’t. He was called to appear again, apparently didn’t, and the matter passed to the jurisdiction of the court of the French church in London. When Petruchio decides to make Katherina Minola his wife, he conducts his own negotiation, in terms that we would find repellent, but which Shakespeare’s contemporaries would have regarded as merely sensible. He reminds Baptista: You knew my father well, and in him me, Left solely heir to all his lands and goods,

7 National Archive, Court of Requests, Documents of Shakespearean Interest, Req 4/1; all of the 26 documents relating to the trial were published in ‘Shakespeare and his London Associates as revealed in Recently Discovered Documents’ (1910) X(4) Nebraska University Studies 261.

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Which I have bettered rather than decreased. Tell me, if I get your daughter’s love, What dowry shall I have with her to wife?

Baptista answers: After my death the one half of my lands And in possession twenty thousand crowns.

Such a dowry calls forth Petruchio’s offer of a jointure: And for that dowry I’ll assure her of Her widowhood, be it that she survive me, In all my lands and leases whatsoever: Let specialties be therefore drawn between us, That covenants may be kept on either hand. (2.1.116–27)

Strangely perhaps, Baptista, who has been very clear that Petruchio had to win Kate’s love before the match could proceed, simply accepts the highest bid when it comes to negotiating a match for Bianca. It comes from Tranio disguised as Lucentio, negotiating as it were for himself, who has nothing. Lucentio could end up with nothing because his father’s consent has not been sought. Baptista sells Bianca to the highest bidder: ‘I must confess your offer is the best’; but adds an inconvenient afterthought: And, let your father make her the assurance, She is your own; else, you must pardon me, If you should die before him, where’s her dower? (2.1.379–82)

And so the counterfeiting suitor has to find himself a counterfeit father. Information about Elizabethan marriage negotiations in the real world as distinct from the theatre is not easily come by. There is almost no surviving documentation of the procedures by which marriage settlements were reached by ordinary people, probably because it was all done orally before witnesses, as in the Belott-Mountjoy negotiations. We know rather more than usual about events leading up to the marriage of the clergyman poet Barnabe Googe and Mary Darrell in 1564 only because of subsequent litigation in the consistory court of Canterbury. Mary’s parents originally made suit to John Lennard of Chevening for his son, Sampson, as a fitting husband for their daughter, Mary. Master Darrell will confess that he and his wife before Master Googe’s suit, were earnest suitors to me and that their daughter was as forward in desire as womanhead would give leave to match my son: and that I never commended but still disabled my son to them all three, and they all three as fast abled and commended my son.

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Lennard interviewed Mary several times: I had divers talks with the maid for my son in his absence and yet no more than she was glad of, and then delivered me by her parents … at our last talk hearing her mild and loving answers with full consent to have my son who I know loved her entirely and therefore I having good liking in me that he should be her husband, nature wrought in me to lay my right hand on her breast and to speak thus in effect: ‘Then I see that with God’s help the fruit that shall come of this body shall possess all that I have, and thereupon I will kiss you. And so indeed I kissed her. I gave her after this silk for a gown (she never wore none so good), and she in token of her good will gave my son a handkerchief and in affirmance of this her father wrote a letter to me by her consent.

Lennard’s testimony reveals that the courting of Mary Darrell had reached the stage of a match concluded, with letters and tokens exchanged. Because his son had not been present, the agreement was not a full contract but a pre-contract, which would have to be formally set aside before a contract with any other party could be entered into. When Lennard visited the Darrells at Bartholomewtide he told Mary and her parents that he had heard talk that she was to be married to Barnabe Googe, which surprised him: They all three answered me and others for me very often that it was not so and that Master Googe was but a suitor. To prove that to be true the parents sent me a letter sent to Master Googe of late wherein she termeth him to be but a suitor and prayeth him to leave his suit and the parents still say that he hath no hold of her except by secret enticement against their will he hath caught some word of her, a thing odious to God and not to be favoured by man.8

Lennard’s outrage can be compared to Egeus’s in A Midsummer Night’s Dream (1.1.26–38). Unfortunately for both sets of parents, Googe had powerful friends. His suit to Mary Darrell was supported by his kinsman Sir William Cecil who called upon the Archbishop of Canterbury to intervene. The authorities heard the case as it was put by both sets of parents, and found for the lovers. On 5 February 1564, Barnabe Googe and Mary Darrell were married, and went on to have eight children. It is tempting to interpret these circumstances as evidence that in the year of Shakespeare’s birth, religious authorities were already recognising the rights of individuals to marry for love, regardless of the interest of their families and friends, but that temptation should be resisted. By marrying him to an heiress the Archbishop was able to advance Googe at no cost to himself, and so to oblige the powerful Cecil family. It follows then that in showing us young people falling in love and marrying, Shakespeare’s plays are more subversive than might be thought, but they are also more concerned with the issue of the rights of all parties to a marriage than has 8 Barnabe Googe, Eglogs, Epytaphes and Sonettes (1563), ed Edward Arber (London, Arber English Reprints, No 30, 1871), 10.

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usually been recognised. In Romeo and Juliet, for example, Juliet’s parents have decided to accept the suit of Paris to their daughter, despite the fact that her elderly father, who himself married a 14-year-old, thinks she is too young. It is Juliet’s mother who comes to urge Paris’s suit; the question she puts to her daughter is whether she can like of Paris’s love: not whether she loves him, but whether she can love him. What should happen next is that Juliet’s family take the time to woo Juliet on Paris’s behalf but the catastrophe of Tybalt’s death precipitates events. Capulet has put a good deal of effort into arranging an advantageous match for his daughter with a near relative of the ruler of Verona. We may believe him, I think, when he says: ‘Day, night, work, play, / Alone, in company, still my care hath been / To have her matched’. (3.5.177–9) Juliet’s reaction to her parents’ disposal of her is summarily to dispose of herself. She imagines when she inadvertently confesses her love to Romeo under cover of darkness that she has contracted herself to him. We have become so used to the balcony scene in Romeo and Juliet that we hardly notice how odd it is. The lovers are held at distance from each other and unable distinctly to see each other’s faces. As an emblem of romantic love as solipsism, the scene could hardly be bettered. Juliet has flung herself at a man in a mask, Romeo has substituted one woman for another in a heartbeat and now they are committing themselves to each other in the dark. Unaware that Romeo is listening, Juliet has invited him to ‘take all’ herself; he steps forward and replies, in a parody of the words de praesenti which constitute the wedding contract: ‘I take thee at thy word’ (2.249). This is as near to a contract as either party gets and yet Juliet is convinced that what has passed between them is indeed a contract. She shuts Romeo up when he tries to swear, and when he demands the satisfaction of her vow in return for his she says that she has already given it. Throughout the scene the lovers are talking at cross-purposes. Romeo will tell Friar Lawrence that they have ‘made exchange of vow’ but in fact they haven’t. Solemnisation follows before there is time to make the marriage public or reconcile their friends (3.3.151). Friar Laurence’s conviction that the marriage will resolve the feud between Capulets and Montagues is more convincing in the Elizabethan social context where families were parties to marriages and not simply individuals. In-laws took upon them full relationship: a mother-in-law became a mother, and so on. Filial deference on the part of spouses was due in equal measure to parents on both sides. The marriage contract stalks through Romeo and Juliet like the spectre of something massacred by misprision. At last when all the young people lie dead in the vault and the errant fathers are brought together by the prince, Capulet says: ‘O Brother Montague, give me thy hand. / This is my daughter’s jointure, for no more / Can I demand’. (5.3.296–8) Elizabethan marriage had three distinct parts, the contract, the solemnisation and the consummation, which did not always occur in that order. Solemnisation was certainly expected to precede consummation which is why, as Rosalind says in As You Like It, ‘he trots hard with a young maid, between the contract of her marriage and the day it is solemnised’. (3.2.307–8) But what was desirable was

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not always possible or prudent. Imogen’s marriage in Cymbeline has been consummated, but not solemnised, but her contract with Posthumus is binding just the same, despite Cloten’s view of the matter: ‘The contract you pretend with that base wretch, / One bred of alms and fostered with cold dishes, / With scraps o’ the court, it is no contract, none’. (2.3.112–14) While other observers refer to the relationship between Imogen and Posthumus as a marriage (eg, 1.1.18, 1.5.12), the Queen, who wishes to break it, refers to it as a hand-fast (1.6.78). From the time Shakespeare was a child, churchmen had been agitating for the removal of the contract into the church, so that it was made in coram populo, as in the marriage ceremony set out in The Book of Common Prayer, but there is still the inconvenient matter of the marriage settlement which, being to do with mammon rather than God, cannot be made in the church. In The Merry Wives of Windsor, Shallow and Evans are anxious to clap up a match ‘upon good dowry’ between Slender and Anne Page (1.1.219). In explaining to Anne that Slender would make her a jointure of £150 Shallow is carrying out one of the functions of a ‘friend’ (3.4.47). In making the initial approach to Anne, Evans enlists the aid of Mistress Quickly, sending Simple to ‘desire and require her to solicit [his] master’s desires’ and ‘to speak a good word to Mistress Anne Page for [his] master in the way of marriage’. (1.2.8–9, 1.4.82–3) Quickly knows that her master, Dr Caius, is also after Anne and she has also acted as go-between for Master Fenton, who has not scrupled to pay her like any bawd. As he later confesses, his initial intention was to entrap Anne for her father’s wealth (3.4.13–14). Page is wholly for the well-landed idiot, Slender, who has £300 a year, his wife wholly for Dr Caius, who ‘is well moneyed, and his friends / Potent at court’. (4.4.86–7) Neither parent is for the wastrel Fenton. Ford is adamant: ‘he shall not knit a knot in his fortunes with the finger of my substance. If he take her, let him take her simply. The wealth I have waits on my consent, and my consent goes not that way’. (3.2.68–71) All three matches would appear to be equally undesirable, and Anne as the quarry of the three interested parties to be in some jeopardy. Her father commands her under cover of the dance at Herne’s Oak ‘to slip / Away with Slender, and with him at Eton / Immediately to marry’ while her mother has told Caius to abduct her, to ‘shuffle her away . . . And at the deanery, where a priest attends, / Straight to marry her’, and Fenton has got the Hostess to ‘procure the vicar who “in the lawful name of marrying” will give the lovers’ hearts ‘united ceremony’. Like Perdita and Florizel in The Winter’s Tale, Anne and Fenton have been ‘long since contracted’, apparently without the assistance of friends or the consent of parents (5.5.220). In The Merry Wives of Windsor we are never reassured that Anne’s flouted parents will make the situation good and give Fenton the dowry he needs. His cake might still be dough. This play is the nearest thing to a comedy of manners that Shakespeare ever wrote. As important as the marriage that is being made in the play are the two marriages that have endured, despite unreasonable jealousy on the part of one husband and the adulterous

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designs on both wives of the fat knight. The treatment of the wives, strong, constant, light-hearted and resourceful as they are, is unique in European literature. Though English people were not often actually married by proxy, as was James VI of Scotland to Anne of Denmark in Copenhagen in 1589 with the Earl Marshal standing in for the bridegroom, in cases where the parties lived in distant parts of the country the match might be well advanced before they met for the first time. The match of Thomas Greene, Ann Hathaway’s lodger at New Place, with a wealthy widow of Leicester, was almost certainly moved by proxy, at least in the initial stages.9 While Greene’s match was making, his bride’s stepson, William Chandler, was matched with Elizabeth Quiney, eldest daughter of the deceased bailiff of Stratford whom Green had served as solicitor before becoming Town Clerk of Stratford. This pair of marriages was probably engineered by the mercery mafia, through which all three families were connected. The process was not without risk. In Much Ado About Nothing, Don Pedro offers to woo Hero for Claudio: And I will break with her and with her father And thou shalt have her … I will assume thy part in some disguise And tell fair Hero I am Claudio, And in her bosom I’ll unclasp my heart, And take her hearing prisoner with the force And strong encounter of my amorous tale. Then after, to her father will I break, And the conclusion is, she shall be thine. (1.1.289–90, 300–7)

Misunderstandings crop up at once. Hero’s father has been told that the Prince woos his daughter for himself and instructs her to accept his suit. Don John and Borachio easily convince Claudio that ‘the Prince woos for himself ’. Claudio concludes: ‘Let every eye negotiate for itself, / And trust no agent’. (2.1.163–4) But then his eye is deceived by the masquerade in which Hero appears to be entertaining a lover. He is ultimately made to proceed without seeing, when, in the climactic scene, he is offered a counterfeit Hero and has to accept her veiled and sight unseen. Typically, Shakespeare exposes in the main plot the dangers inherent in wooing by proxy, and in the parallel scenes the necessity of wooing by proxy. Left to their own devices Beatrice and Benedick would never have become lovers; the ruses by which Don Pedro, Claudio and Leonato turn Beatrice and Benedick into lovers parody the machinations of friends in bringing young people together. When Hero is falsely accused, Don Pedro, having made the match, takes the dishonour on himself. Leonato, racking his brains as to how he might repair his

9

Mark Eccles, Shakespeare in Warwickshire (Madison, University of Wisconsin Press, 1961) 127.

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daughter’s honour, twice refers to the friends who will be his only chance of accomplishing his self-imposed task (4.1.194, 197). Beatrice too cries: ‘O … that I had any friend would be a man for my sake!’ (4.1.312–13) Friends as champions of each other’s honour were more important in Elizabethan daily life than we can well imagine. A man accused of fornication in the vicar’s court, for example, would be put to his compurgation; what this means is that he was obliged to produce at the court’s next sitting friends who would vouch for his good character. The heroes of Much Ado About Nothing are the friends who go about to advance each other’s happiness. In Shakespeare’s England, young people who contracted themselves upon slight acquaintance were playing a dangerous game. If the match had not been consummated it could with some difficulty be set aside; consummating it was one way of making all sure, even without a solemnisation. Indeed, without consummation, even solemnisation did not result in an indissoluble knot. But unwitnessed hand-fasting followed by consummation could be denied, and a faithful wife strumpeted. In law, without solemnisation, the marriage settlement remained unmade, and wives and children could not inherit. The secret contract between Fenton and Anne in The Merry Wives of Windsor is of its nature unreliable, and very different from the contracts of Claudio and Julia and Angelo and Mariana in Measure for Measure which were made with the agency of friends. In real life, the marriages of the Shakespeare family are a puzzle. There must have been a settlement made at the time of the marriage of John Shakespeare and Mary Arden. Mary’s father had seen to it that all his elder daughters were married to farmers, and we may assume that they took with them the same cash portion as Mary Arden, namely 10 marks.10 To her marriage with John Shakespeare Mary was able to bring as well as her 10 marks, her father’s best estate of Asbyes, while Shakespeare could show that he held freehold property in Stratford, out of which Mary’s jointure should eventually have been paid. Indeed, impending marriage is the only way of making sense of John Shakespeare’s acquiring so much freehold property, and it may have been this indebtedness as well as devoting too much of his time to fulfilling the demands of public office that began his slide into penury.11 By the time Shakespeare married Ann Hathaway, all of the Shakespeare property was gone, but even so the bride’s friends should have negotiated some kind of settlement, if only to protect Ann and her children from the claims of her needy in-laws.

10 Shakespeare Birthplace Trust Record Office, ER 3/1923; James Orchard Halliwell-Phillipps, Outlines of the Life of Shakespeare (London, Longmans and Co, 1887, 7th edition), ii, 173–6; Nathaniel J Hone, ed, ’A Mannor and Court Baron’ (Harleian MS 6714) (Manorial Society Publication No 3, 1909), 30–1; Edmund Kerchever Chambers, William Shakespeare: A Study of Facts and Problems (Oxford, Clarendon Press, 1930); Victoria History of the Counties of Engand: Warwickshire (London, Institute of Historical Research at the University of London and History of Parliament Trust, 1899– ) iii, [1945], ed Philip Styles, 44. 11 Schoenbaum, n 1 above, at 27–40.

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Shakespeare’s brothers all died unmarried. One of them, Edmund, had acknowledged a base-born son, which suggests a committed relationship.12 Shakespeare’s sister Joan married a hatter, possibly a colleague or client of her brother Gilbert who was a haberdasher in London. Where she married him we don’t know. William Hart was not a Stratford man (despite the easy assumptions of biographers) and no marriage appears in the Stratford registers. Their first child that we know of was baptised in Holy Trinity in 1600; that year and the next Hart appears in the Court of Record, so we know that he was economically active.13 The Hathaway family was very different; the marriage of Ann Shakespeare’s brother Bartholomew Hathaway to Isabella Hancocks of Tredington was solemnised a mere three weeks after his father’s death. This marriage was almost certainly arranged; the word would have gone out, probably from the marketplace in Stratford, that Hathaway’s boy was seeking a wife. He was then farming on his own account at Tysoe; we don’t know what connection the Hathaways can have had with Tysoe, which is a good 10 miles from Shottery, probably because we have no idea who Bartholomew’s mother was. Bartholomew and Isabella must have been contracted before Richard Hathaway’s death, with the solemnisation being delayed only slightly by Bartholomew’s involvement in his father’s obsequies. Matches for the children of Ann’s cousins were also carefully and successfully promoted; in one case a sister and brother Hathaway married a brother and sister Edwards of Drayton. All of Ann’s siblings and half-siblings were entitled to marriage portions out of her father’s will. As far as we can tell none of Shakespeare’s immediate family left a will. Most of the commentary on the marriages of Shakespeare’s daughters has ignored the virtually inevitable presence of go-betweens. John Hall is assumed to have courted Susanna for himself, and therefore been resident in Stratford for some time before mid-1607, when there is no sign of his ever being there before the wedding.14 What is more likely is that a match was arranged between the son of William Hall, medical practitioner of Acton, and the daughter of one of the King’s Men, probably by the doctor and the player concerned. The settlement, which may one day be found, probably commits Hall to making his second son John his sole legatee and Shakespeare to doing the same for Susanna. Some such settlement would explain the lop-sidedness of Shakespeare’s will, which seems to have as its central concern the avoidance of the costly and protracted litigation that could ensue if the terms of Susanna’s settlement were breached, deliberately or inadvertently.15 William Hall made his will on 12 December, six months after his son’s wedding and died forthwith; John Hall proved the will in London on 24

12 13 14 15

Ibid 26. Ibid 25. See eg ibid 235. Ibid 243–5, facsimile of National Archives, Principal Probate Registry, Selected Wills, Prob 1/4.

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December.16 It is also assumed that Shakespeare chose John Hall as his heir in the knowledge that he could be trusted because he was a doctor. In fact he was a factious puritan and a poor manager of his wife’s property. He died intestate and in debt; it may be as a consequence of his negligence that any Shakespeare papers at New Place were lost.17 Judith’s marriage to Thomas Quiney is usually described as a mésalliance. In fact her husband belonged to Stratford’s ruling dynasty, the propertied Quiney clan, which for 50 years had supplied one-third of the membership of the Council of the Corporation.18 When Thomas Quiney was 13, his father who was then Bailiff of Stratford was attacked by the bravoes of Sir Edward Greville, lord of the manors of Stratford and Old Stratford, and had ‘his head grievously broken’.19 He died of his injury three weeks later. Judith, who was then 17, may already have been in service in the widow’s household; certainly nine years later she witnessed a deed for Bess Quiney and her son Adrian. There may have been a long-standing intention to match Judith with Thomas, who certainly needed looking after, but we can be fairly certain that there was nobody to make the match, all Judith’s father’s substance being invested in the deal with John Hall. In 1616 Quiney, for too long a bachelor, found himself in trouble. On 10 February, in the prohibited season of Lent, he was suddenly married to Judith Shakespeare, without waiting for a licence from the Bishop of Worcester and using the dispensation of the Stratford Peculiar instead.20 The marriage was in no way clandestine; the vicar had to issue the licence; the curate later married Quiney’s sister; the church-warden was his wife’s uncle, Bartholomew Hathaway. The spur to the rushed marriage was probably a pregnancy, in this case not the bride’s. A Margaret Wheeler, ‘unlawfully’ pregnant, was claiming that the father was Thomas Quiney. Though forced marriage was not usual in such circumstances, it was possible and it looks very much from ensuing events as if Thomas Quiney was not going to be able to deny the woman’s claim.21 The only sure way to protect him was to get him married. Most commentators have assumed that Judith was on the shelf. Even Samuel Schoenbaum, who usually restricts himself to the irreducible nugget of documentary truth, confesses that ‘One suspects she did not by then have a choice of suitors, if she ever did’.22 A month later Margaret Wheeler gave birth; as an unmarried woman she should have been questioned by the midwives during her labour, and even

16

Eccles, n 9 above, at 111–12. Schoenbaum, n 1 above, at 248–9. VCH: Warwickshire, n 10 above, iii, 46. 19 Shakespeare Birthplace Trust Record Office, ER 1/1/50, [Thomas Greene] ‘Sir Edward Greville’s menaces to the Bailiff, Aldermen and Burgesses of Stratford’. 20 Eccles, n 9 above, at 139. 21 Worcestershire Record Office, B/ABI 31, f 30, B/ABI 38, ff 80, 88, 90, 106, B/DB 36, ff. 125v, 137, 139v; D/AB 32, f fv; Martin Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge, Cambridge University Press, 1987), 210. 22 Schoenbaum, n 1 above, at 238. 17 18

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refused assistance if she did not name the father of her child. Once again Margaret named Quiney. The matter was reported by the midwives to the vicar’s court and Quiney was duly called before it. By that time both mother and child were dead. Quiney confessed that he had had carnal knowledge of the woman and was given a penance. His punishment was twice commuted, possibly because it became apparent that he had been a patsy in a rather more complicated case.23 Certainly his confession suggests that he was a rather guileless individual. At much the same time, Shakespeare dictated a new first page for his will in which he left Judith a marriage portion (as if she was not yet married) plus a further £150 ‘if she or any issue of her body [were to] be living three years after the date of the will’ but as long as she remained married, his executors were to provide her with the interest on that sum only, her husband having access to the principal only if he settled on her lands worth the same amount.24 What we have here appears to be a posthumous negotiation in which Shakespeare tries to assure his second daughter’s future, disposing of cash apparently not covered by the terms of the Shakespeare-Hall settlement and making sure that Judith enjoyed a separate estate. Why he does this is not clear. It may have been at the instance of his wife, who may always have had a separate estate of her own. Despite the adverse circumstances, Judith’s marriage was a real one. Her first baby was born in November, four months after she and her husband had moved into the Cage and set up their wine shop and tavern. When this baby, called ‘Shakespeare’ after her father, died at the age of six months, Judith had already started another baby. Richard, called after Thomas’s father, was followed two years later by Thomas. The complexities of Shakespearean marriages both in life and on stage are difficult for us fully to appreciate, which would mean little if the theme of marriage was less central to Shakespeare’s work. In Shakespeare’s plays the marriage of the principals is not a cliché. At the end of Love’s Labour’s Lost, the King of Navarre asks the Princess of France and her ladies to bring their play to a satisfactory conclusion by granting him and his lords their loves ‘now, at the latest minute of the hour’. The Princess replies: ‘A time, methinks, too short / To make a world without end bargain in’. (5.2.783–5) The play, denied its happy ending, is simply abandoned. Shakespearean marriage is certainly a bargain and involves all kinds of negotiations and considerations, some of them pecuniary, but when the deal is struck, no matter how imperfectly it is realised on earth, it is struck for all eternity.

23 ERC Brinkworth, Shakespeare and the Bawdy Court of Stratford (London and Chester, Phillimore & Co, 1972) 143. 24 Schoenbaum, n 1 above, at 246–7.

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5 Judging Isabella: Justice, Care and Relationships in Measure for Measure ERIKA RACKLEY*

ET AGAINST A backdrop of brothels, punks and pimps, Measure for Measure explores the very best and worst of human nature and connections. Infidelity and vice flourish; ‘Liberty plucks Justice by the nose’.1 Corruption and dishonesty have bred poverty and disease. Disorder and anarchy have become a way of life; the law an ineffectual ‘scarecrow’.2 Unwilling to countenance the ‘tyranny’ of personally repairing the damage his leniency has caused,3 the Duke appoints Angelo to rule Vienna in his place, while he continues to observe (and control) the action from a distance, disguised as a friar. Angelo sets about enforcing the law with intolerant zeal, closing the brothels and sentencing Claudio to death for lechery and fornication with his pregnant fiancée, Juliet. Meanwhile, Claudio’s sister Isabella is preparing to join the order of Saint Clare. Charged by Claudio’s friend, Lucio, to plead with Angelo for leniency on Claudio’s behalf, Isabella is thrust into a society where debauchery corrupts law and order. Smitten by Isabella, Angelo offers her a stark choice: Which had you rather: that the most just law Now took your brother’s life, or to redeem him Give up your body to such sweet uncleanness As she that he hath stained. (2.4.52–3)

* Thanks are due to Ian Ward and Neil Cobb for their helpful comments and suggestions and to the participants in the ‘Shakespeare and Law’ conference at The University of Warwick without whose imagination, insights and wealth of knowledge this chapter would have been significantly weaker. The usual caveats apply. 1 Measure for Measure, 1.3.30. All references to Measure for Measure are to Brian Gibbons (ed), The New Cambridge Shakespeare (Cambridge, Cambridge University Press, 1991). 2 2.1.1. 3 1.3.35–55.

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Questions about the nature of justice and mercy, authority and the abuse of power, self-sacrifice and preservation, law and morality are explored through the interaction and antithesis between ruler and ruled, lover and loved, brother and sister. Central to these relationships is Isabella. Isabella is, for many, Measure for Measure’s most problematic character.4 What are we make of a sister who prioritises her chastity over the life of her brother? Is she ‘the most courageous character in the play’ with ‘an awesome sense of integrity’5 or does her appearance of saintliness bely a ‘pitiless, unimaginative, self-absorbed’ interior?6 Or is she the victim of a pernicious case of sexual harassment: let down by the men she trusts and silenced by a situation that runs out of her control? This chapter argues that Isabella’s rejection of Angelo’s offer to ‘lay down the treasures of her body’ (2.4.96) reflects the extent to which she values human association and interaction, particularly her relationship with her brother, Claudio. Deaf to Claudio’s plaintive request to ‘let [him] live’ (3.1.133), she appears to some to have failed in her sisterly role. However, the chapter contends that such interpretations of Isabella, grounded in a traditional, liberal conception of autonomy, are misplaced: her refusal to allow the physical invasion of herself reinforces, rather than undermines, her existing relationships.7 Finally, the chapter considers Isabella’s relationships with Mariana and the Duke as a lens through which to examine ideas of justice and care. So viewed, Isabella’s refusal of Angelo’s offer, and acceptance of the Duke’s solution, highlight the importance not only of tempering the rigidity of law with mercy, but also of balancing care and justice.8

ISABELLA AND ANGELO: ‘THIS VIRTUOUS MAID/ SUBDUES ME QUITE’9 Condemned by Coleridge as the least interesting of all Shakespeare’s female characters,10 Isabella is perhaps better understood as someone who recognises the incongruity of her position and relationships. She is caught between the necessity 4

George Geckle, ‘Shakespeare’s Isabella’ (1971) 22(2) Shakespeare Quarterly 163. Juliet Stevenson, quoted in Carol Rutter, Clamorous Voices: Shakespeare’s Women Today (London, The Women’s Press, 1988) 26. 6 Una Ellis-Fermor, The Jacobean Drama (London, 1936) 262, cited in Geckle, n 4 above, at 164. 7 See Jennifer Nedelsky ‘Reconceiving Autonomy: Sources, Thoughts and Possibilities’ (1989) 1 Yale J L and Feminism 7, 12 and ibid ‘Law, Boundaries and the Bounded Self ’ (1990) 30 Representations 162. 8 Robin West, Caring for Justice (New York, New York University Press, 1997) 22–93. 9 2.2.189–90. 10 Samuel Taylor Coleridge, Coleridge’s Miscellaneous Criticism (Thomas Middleton Raysor (ed), Cambridge, MA, 1936) 49, cited in Geckle, n 4 above, at 164. 5

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and unwanted consequences of her continuing engagement with the immoral norms of Viennese society and her wish to embrace the self-control and isolation of holy orders. Our early encounters with Isabella reflect the extent to which she seeks to negotiate a place for abstinence and solitude: to find a space, somewhere between vice and virtue. The Isabella of Claudio’s description is someone whose femininity and argument is persuasively beguiling—sexual almost.11 In contrast, the Isabella we first meet at the gates of the convent of Saint Clare solicits stricter restraints and modesty than the already severe rules of the Order provide.12 And yet, even this Isabella despairs at rather than condemns her brother: ‘Someone with child by him? My cousin Juliet? / … O, let him marry her’. (2.1.45, 48) This delicate balance is upset during her meeting with Angelo. She pleads for Claudio’s life, arguing for leniency in respect of a vice she ‘abhors, / And most desire should meet the blow of justice’. (2.2.30–1) Coached by Lucio, she draws Angelo into a discussion of the relative value of law without mercy. Her purpose is to reduce Claudio’s sentence rather than to excuse his actions. She asks Angelo what he ‘can’ or ‘might’ do and introduces the word ‘if ’ into the conversation, allowing for the possibility for empathy and compassion: ‘But can you if you would? … If he had been as you, and you as he, / You would have slipped like him, but he like you / Would not have been so stern’. (2.2.52, 65–7)13 Angelo’s description of Claudio as ‘a forfeit of the law’ prompts an appeal to a higher, theological, sense of justice: Why all the souls that were, were forfeit once And he that might the vantage best have took Found out the remedy. (2.2.75–7)

Isabella stirs in Angelo feelings of desire and longing, for which he seeks to transfer responsibility, while satiating his lust. He offers Isabella a choice: to sleep with Angelo and save her brother’s life or to refuse and thereby condemn Claudio to death. Her response is typically forthright: were I under terms of death, Th’ impression of keen whips I’d wear as rubies, And strip myself to death as to a bed That longing have been sick for, ere I’d yield My body up to shame.14

11 See 1.2.150–9; also Rutter, n 5 above, at 33, 40–1; Ian Ward, Shakespeare and the Legal Imagination (Butterworths, London, 1999) 88; Nicolas Radel, ‘Reading as a Feminist’ in Nigel Wood (ed), Measure for Measure (Buckingham, Open University Press, 1996) 106–16. 12 1.4.1–5. 13 See Alexander Leggatt, ‘Substitution in Measure for Measure’ (1988) 39(3) Shakespeare Quarterly 342. 14 2.4.100–4.

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Of course, in refusing to have sex with Angelo, Isabella is rejecting the offer of a man who is abusing his power and authority in making it in the first place. Angelo is seeking to pressurise Isabella into an intimate relationship she does not want and did not ask for, strategically relying on her relationship with Claudio to help seal the deal. For a modern audience, should Isabella ‘agree’, Angelo’s actions would constitute rape.15 Perhaps a better way of understanding Isabella’s choice is to step outside Angelo’s imposed dichotomy and to hear it for what it is: ‘no’. So understood, in saying ‘no’ to the imposition of an unwanted relationship, Isabella is simply exercising her right, as an autonomous liberal individual to secure her bodily integrity.16 In so doing Isabella is not, as some have suggested, displaying an ‘aversion to close human relationships’.17 Nor is it evidence that she ‘lacks warmth’;18 or that she has an obsessive fear of physical violation.19 In saying ‘no’, Isabella is not rejecting all relationships but rather one that is unwanted, inappropriate and harmful. Despite, or perhaps because of, her dexterous argument, Angelo merely becomes increasingly hostile and argumentative. Isabella’s response is to beg Angelo to return to the themes of their earlier conversation, where they spoke of religion and law. Angelo refuses to reframe the debate. Embattled and cornered, Isabella threatens to denounce Angelo: to ‘tell the world aloud/ What man thou art’ unless he pardon Claudio. Her attempt at an ultimatum receives short shrift: Who will believe thee, Isabel? My unsoiled name, th’ austereness of my life My vouch against you, and my place I’ th’ state, Will so your accusation overweigh That you shall stifle in your own report And smell of calumny. (2.4.153–9)

Isabella’s world has been turned upside down. Left alone on stage, her thoughts tumble out: ‘To whom should I complain? Did I tell this / Who would believe

15 My purpose in describing Angelo’s actions as rape is to highlight to the modern audience what Robin West describes as unwanted ‘sexual invasion’ (‘Jurisprudence and Gender’ (1988) 55(1) U Chicago L Rev 59). Contemporary Jacobean laws make it unlikely that Shakespeare had rape in mind (Carolyn D. Williams, ‘“Silence, like Lucrece knife”: Shakespeare and the Meanings of Rape’ (1993) 23 Yearbook of English Studies 93; BJ Sokol and Mary Sokol, Shakespeare, Law, and Marriage (Cambridge, Cambridge University Press 2003) 105–16. 16 See Barbara J Baines, ‘Assaying the Power of Chastity in Measure for Measure’ (1990) 30(2) Studies in English Literature 283. 17 Richard Posner, Law and Literature: a Misunderstood Relation (Cambridge, MA, Harvard University Press, 1988) 103. 18 Ibid 105. 19 Ellis-Fermor, n 6 above, at 164. See also, Kathleen McLuskie ‘The Patriarchal Bard: Feminist Criticism and Shakespeare: King Lear and Measure for Measure’ in Jonathan Dollimore and Alan Sinfield (eds), Political Shakespeare: New Essays in Cultural Materialism (Manchester, Manchester University Press, 1985) 97.

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me?’. (2.4.172–8) She finds the answer in the relationship that instigated the unwanted proposition: her relationship with her brother, Claudio.

ISABELLA AND CLAUDIO: ‘SWEET SISTER, LET ME LIVE’20 Shakespeare does not often explore the relationship between brother and sister; the most obvious exceptions being perhaps Ophelia and Laertes and Viola and Sebastian.21 In the face of adversity the brother/sister bond typically holds fast. It is unsurprising then that, when faced with a difficult decision, Isabella turns to Claudio. Her belief that he would rather die than have her sleep with Angelo stiffens her resolve. Her thoughts move on to the consequences of her decision: ‘Then, Isabel, live chaste, and brother, die:/ More than our brother is our chastity’ (2.4.185). It is this line that for many seals Isabella’s fate as ‘the living antidote to all human charity, to all generous, deeply concerned sympathy and love’.22 But, as actress Juliet Stevenson argues, this line is not the end or indeed the premise of Isabella’s only soliloquy: the speech is not about chastity, it’s about anarchy … Insisting on her virtue isn’t some priggish affectation she defends at the cost of her brother’s life. It’s the last redoubt holding against the chaos that threatens to overrun it.23

The play which began about man-made law and order has become one about female self-sacrifice. Carol Rutter continues: Isabella assumes she is powerless, and in the male forum of audience chambers and courtrooms, of abstract justice and codified bureaucracy, she’s right … Isabella’s power is personal, physical and sensual, sexual. The forum for female power is a bedroom … it is precisely because Isabella refuses to enter the bedroom, to conform to the archetype of self-sacrificing female, that ‘she has been punished terribly over the years’.24

Of course, this begs the question: what is it about Isabella’s relationship with Claudio that transforms the imposition of an unwanted physical relationship with Angelo from an unthinkable presumption into a legitimate expectation: 20

3.1.133. See Catherine Belsey, Shakespeare and the Loss of Eden: the Construction of Family Values in Early Modern Culture (Basingstoke, Macmillan Press Ltd, 1999). 22 David Lloyd Stevenson, The Achievement of Shakespeare’s ‘Measure for Measure’ (Ithaca, NY, Cornell University Press, 1966) 49, cited in Geckle, n 4 above, at 166. 23 Juliet Stevenson, in Rutter, n 5 above, at 51. 24 Rutter, n 5 above, at 29 (quoting actress, Paola Dionisotti). 21

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from rape to ‘simply’ sex? Why is it that Isabella’s decision to exercise her sexual/personal autonomy—her refusal to sacrifice herself to Angelo even to save her brother—is so disquieting? The answer lies, at least partly, in the fact that her refusal is unexpected. At times of crisis, both Isabella and Claudio immediately turn to the other for support and resolution. Their relationship is one of mutual reliance, as Angelo well knows. Isabella’s refusal to play along catches the audience (together with Angelo and Claudio) unawares. But there is, it seems, more to her refusal than a mere assertion of independence. In making the decision that is right for her, Isabella not only lets Claudio down but she also reneges on her side of the bargain. She fails in her sisterly duties. Her actions have been criticised as unfeeling and cruel—unnatural even: ‘Born unequal in the eyes of the world, but with infant opportunity to observe each other’s equality, brothers and sisters cherish a closeness streaked with hostility … The brother inherits his father’s authority towards his sister’.25 Her refusal to yield up her virginity to Angelo in order to free her brother is, therefore, at odds with essential expectations of a sister as someone who should protect her wayward brother; someone whose quick thinking enables them to escape from the witch’s gingerbread house or who is willing to defy the law to bury his body. Unlike Gretel or Antigone, Isabella places limits on what she is willing to do for Claudio: ‘Oh, were it but my life / I’d throw it down for your deliverance. As frankly as a pin’. (3.1.103–4) But she will not risk her eternal soul by sleeping with Angelo. To modern audiences, Isabella’s reasons for refusing to do what many ply as a trade seems, in the face of the seriousness of the consequences for Claudio, almost deliberately obtuse; her appeal to her chastity, old-fashioned even. As Juliet Stevenson observes, ‘Our culture worships Life at any price … so the idea that Isabella will let Claudio die for so “small” a thing as her virginity is anathema to a modern audience’. As a result, ‘Nobody likes Isabella. They think she’s a prig … They won’t forgive her for valuing her virginity above Claudio’s life’.26 The difficulty with Isabella’s decision is that (even excluding her sibling relationship with Claudio) in a hierarchy of harm, death trumps rape.27 So viewed, Isabella’s refusal to countenance a lesser harm to save her brother from a greater one, to effectively allow her personal autonomy to trump Claudio’s, is troubling. Forced to choose between the two constructed alternatives—Isabella’s rape or Claudio’s death—it is understandable perhaps that, more often than not,

25 Juliet Dusinberre, Shakespeare and the Nature of Women (2nd edn, Basingstoke, Macmillan Press, 1995) 260–1. Further, it is not clear from the text which sibling is the eldest. In the 1978 RSC production Claudio was played as the younger brother in order to prevent the audience from siding with Isabella (Paola Dionisotti, in Rutter, n 5 above, at 30), although Claudio refers to Isabella’s ‘youth’ (1.2.163), which might suggest that he is older than his sister. 26 Juliet Stevenson, in Rutter, n 5 above, at 26–8, 41. 27 This holds true even where rape (or sexual intercourse generally), in accordance with strongly held religious or moral beliefs in relation to chastity and virtue, is presented as akin to eternal death (2.4.107–8).

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the wish to prevent the greater harm prevails. The value of chastity is less, relative to the value of life. That said, the expectation that Isabella should substitute herself for her brother remains problematic. Like her ‘choice’ between Claudio’s death and her rape, this binary construction of harm is false: death and rape are not the only harms caused by Angelo’s offer. Reducing it to this either/or alternative, allowing only for the harm to Isabella and Claudio as individuals, and/or their responsibilities as a sister or brother to the other, to be explored, overlooks the significant harm Isabella’s decision is likely to have on their relationship. By the time the Duke intervenes, Isabella has made what is for many the ‘wrong’ choice. Unable to work her way out of Angelo’s either/or framework, Isabella prioritises not only herself over Claudio, but also over their relationship. She will ‘let’ Claudio die. But where does this leave her relationship with Claudio? On one level he is back where he started: waiting to die. Unaware of the Duke’s trick and the extent of Angelo’s treachery, what must Claudio make of his relationship with Isabella now? But what of Claudio’s responsibilities to Isabella: what should we make of a brother who asks his sister to substitute her life for his; to sacrifice herself in order to secure his person? What brother would expect a sister to pay for his mistake; to trade her chastity for his life; to exchange her autonomy for his? ‘Society hands all the cards to Claudio, and he asks Isabella for her only one—her chastity’.28 ‘Like doth quit like, and measure still for measure’ (5.1.405–7), but an Isabella for a Claudio? That is perhaps more difficult. His situation is, after all, of his own making. He has broken the law: his sin is ‘not accidental, but a trade’.29 Isabella is effectively being asked to ‘surrender her virginity … to redeem a rake’.30 She has done nothing wrong. Indeed, in saying ‘no’, she is seeking to avoid being both the victim and perpetrator of a criminal act. She refuses to break the law. Claudio’s expectation that Isabella will embrace ‘shamèd life’31 on his behalf is as unreasonable as Angelo’s offer in the first place—perhaps even more so—yet it hardly raises a comment.32

28

Dusinberre, n 25 above, at 261. 3.1.149. The status of Claudio and Juliet’s union is unclear. In Act 1, Claudio describes Juliet as ‘fast my wife/ Save that we do the denunciation lack/Of outward order’ (1.2.128–30), suggesting that according to contemporary English law, he is effectively married without having had a marriage (Sokol and Sokol, n 15 above, at 101). The Duke subsequently condemns Juliet for her ‘sin of a heavier kind’ despite it being ‘mutually committed’ (2.3.28). Further complications arise when comparing the status of the marriage contract between Claudio and Juliet with that between Angelo and Mariana; see further, Sokol and Sokol, n 15 above, at 26–9; also, Margaret Scott, ‘“Our City’s Institutions”: Some Further Reflections on the Marriage Contracts in Measure for Measure’ (1982) 49 ELH 790. 30 Paola Dionisotti, in Rutter, n 5 above, at 26. 31 3.1.117. 32 Claudio is well-liked within the play: Mistress Overdone believes him to be ‘worth five thousand’ of Lucio and his companions (1.2.49–50); Escalus calls him a ‘gentleman’ (2.1.6); the Provost wishes for his pardon (4.2.58–9) and Lucio declares he loves him (4.3.147); although, see Coleridge’s description of Claudio as ‘detestable’ (discussed in George Geckle, ‘Coleridge on Measure for Measure’ (1967) 18(1) Shakespeare Quarterly 71, 72). 29

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Surely, their relationship goes two ways? Isabella certainly thinks so. She expects him to be on her side against Angelo. Claudio’s attempt to sway her judgement and exploit their sibling-ship upsets the balance of their relationship: Sweet sister, let me live. What sin you do to save a brother’s life, Nature dispenses with the deed so far That it becomes a virtue. (3.1.135–8)

Claudio and Isabella are pitted against each other, neither yielding, both hurt and disappointed. Claudio lets Isabella down; his increasingly pitiful pleas are met with a stinging response: Oh, you beast! Oh faithless coward oh dishonest wretch! Wilt thou be made a man out of my vice? (3.1.137–9)

Their relationship at breaking point, the Duke steps in to negotiate a truce.

ISABELLA, MARIANA AND THE DUKE: ‘THE IMAGE OF IT GIVES ME CONTENT ALREADY’33 Through its diverse cast of pimps, prostitutes, nuns, friars and corrupt officials, Measure for Measure explores the intersection of judging, justice and care. The relationships between Isabella, Claudio, Angelo, Mariana and the Duke provide a window onto the possibilities of diverse adjudicative landscapes and, in particular, the danger of judicial impartiality untempered by relationship, and of compassion that lacks integrity.34 Put another way, judgment in Measure for Measure is a ‘collective activity’: in which ‘justice consists in maintaining contracts’ and autonomy is grounded in life-sustaining relationships.35 Most would agree that, as the Duke’s deputy, Angelo oversteps the judicial mark. He embraces his new role with puritanical zeal. Ignoring the warnings of the more measured Escalus, he embarks on a mission to rid the Viennese streets of vice and corruption, with crude impartiality and bullish determination. On meeting and becoming infatuated with Isabella, suddenly he has to admit to himself that he is like every other man.36 In this, Angelo resembles another 33

3.1.243–4. West, n 8 above, at 22–93. 35 Cynthia Lewis, ‘“Dark Deeds Darkly Answered”: Duke Vincentio and Judgment in Measure for Measure’ (1983) 34(3) Shakespeare Quarterly 271, 286. 36 2.3.177. 34

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well-known judge: Hercules.37 Like the Herculean judge, Angelo has a limited identity, history and friends.38 He presents himself as a lone figure. A man so cold his urine is ‘congealed ice’, his blood like ‘snow-broth’ and whose only relationship—apart from that which he seeks to impose on Isabella—is with his ‘secondary’ Escalus, an ancient lord.39 Like Hercules, Angelo seeks to utilise his isolation to maintain an objective distance from those he judges. In so doing, he is, perhaps, just what the vice-ridden world of Vienna needs; a superhero ready to rid Vienna of the evils of promiscuity, vice and debauchery. To this end, he applies the law with rigid consistency, telling Isabella: ‘It is the law, not I, condemn your brother. / Were he my kinsman, my brother or son, / It should be thus with him’. (2.2.83–4) The trouble is, he is not quite up to the job. A ‘natural Number 2 man, … [r]ather than take responsibility for his decision, [he] retreats behind the law; the law becomes his master in lieu of the absent Duke’: his legalism, Richard Posner contends, as much to do with his ‘underling status’ as his wish to ‘transcend the body and become all spirit’.40 A ‘projection of frigid absolutism’,41 Angelo favours strict statutory interpretation. He rejects the importance of the relationships (between Claudio and Juliet or Isabella and Claudio) or extenuating circumstances (the fact that his crime was ‘mutually committed’ (2.3.27) or the Duke’s previous leniency) and refuses to allow compassion to infuse consistency (1.4.67–8). Ignoring Escalus’s advice to ‘be keen, and rather cut a little / Than fall and bruise to death’, his actions, unconstrained by care, are unjust.42 The hypocrisy of Angelo’s idealised view of law, revealed in his harassment of Isabella, is underlined in Act 3 when we learn, with Isabella, of his previous relationship with and mistreatment of Mariana, whom he unceremoniously jilted following the loss of her dowry.43 Like Hercules, Angelo discovers that the superhero ideal is impossible to sustain. While his feelings for Mariana may have waned, those for Isabella cloud his judgement. Unable to rise above them, his treatment of her, and Claudio, becomes unjust.44 Angelo is a corrupt judge: not only does he propose an unconscionable bargain, he subsequently reneges on it. In short, Angelo’s actions (seen here through Isabella’s story) evidence not only the danger of a superhero judge ‘gone bad’—of the unruly or partial application

37 Ronald Dworkin, Taking Rights Seriously (London, Duckworth, 1977) 105–30; Erika Rackley, ‘When Hercules Met the Happy Prince: Re-Imagining the Judge’ (2006) 12 Texas Wesleyan L Rev 213, 217–23. 38 1.1.16. 39 1.1.45–6; 3.2.97; 1.4.57; although, see Martha Widmayer, ‘“To Sin in Loving Virtue”: Angelo of Measure for Measure’ 49(2) (2007) Texas Studies in Literature and Language 155. 40 Posner, n 17 above, at 109; 1.1.25, 47–50. 41 Lewis, n 35 above, at 271. 42 2.1.5–6. On the role of Escalus as judge, described by Posner as ‘much closer to Shakespeare’s idea of a proper judge’ (n 17 above, at 105) see Ward, n 11 above, at 85 and Lewis, n 35 above, at 278–9. 43 3.1.199–221. 44 As recognised by Angelo, in 4.4.26, 30.

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of law—they also highlight the menace of judicial integrity and impartiality without compassion and connection. By this, I mean that it would be a mistake to extrapolate from Angelo’s actions the assumption that the law must be applied devoid of emotion, personality and discretion: ‘the strict enforcement of rules is intolerable … law is the art of governance by rules, not just by an automated machinery of enforcement’.45 Put simply, Angelo was attempting to maintain an untenable position. He falls foul of his grid-like reasoning, his own dichotomy between justice and care. The Herculean judge is not only unattainable but also increasingly undesirable.46 And what of the Duke? First impressions are not particularly good. As the play opens, the Duke is preparing to abandon his judicial role; his reluctance to clean up the mess he has created belies a hint of Machiavelli’s Prince:47 ‘In being the Duke’s substitute, Angelo is also his victim’.48 Moreover, given the Duke’s knowledge of Angelo’s perfidy toward Mariana and his suspicion that he will be a mere ‘seemer’, it is surprising that he delegates responsibility to someone who seems to embody the dissolute world of Vienna. Nevertheless, it is clear from the outset that the Duke has a different understanding of the role of the judge from that of Angelo. In contrast to his deputy’s ossified view of justice, the Duke recognises the importance of a judge’s humanity and calls for moderation in judgement: ‘a balance between exact punishment and forgiveness’.49 As the play progresses, the Duke is unable (or unwilling) to abdicate judicial responsibility completely. Instead, his disguise as a friar, allowing him to ‘listen with connection’50 to the other characters in the play,51 informs his judgement before establishing the detachment necessary in order to effect a (more or less) just and caring resolution to the play.52 Unconstrained by the worst of the Herculean role and with the confident authority of absolute power and a hint of anarchy,53 the Duke strategically manipulates events to ensure clemency and justice in (almost) equal measure. Inspired by the conversation he has overheard between Isabella and Claudio, his bed trick, whereby Mariana goes under the cover of darkness to Angelo in Isabella’s place, almost exactly mirroring Angelo’s violation of Mariana’s trust, offers Isabella a way out of the either/or dichotomy established by Angelo’s

45

Posner, n 17 above, at 109. Rackley n 37 above, at 217. See Posner, who describes the ‘inhuman formalism of an Angelo [as] the abuse of a good thing rather than the essence of a bad’ (Posner, n 17 above, at 110). 47 Norman N Holland, ‘Measure for Measure: the Duke and the Prince’ (1959) 11(1) Comparative Literature 16. 48 Leggatt, n 13 above, at 346. 49 1.1.44–45; see Lewis, n 35 above, at 271. 50 Patricia Cain, ‘Good and Bad Bias: Comment on Feminist Theory and Judging’ (1988) 61 S Cal L Rev 1945, 1954. 51 Lewis, n 35 above, at 283–6. 52 Michael Jay Wilson, ‘A View of Justice in Shakespeare’s The Merchant of Venice and Measure for Measure’ (1994–95) 70 Notre Dame L Rev 695, 719. 53 Posner, n 17 above, at 110. 46

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proposition.54 In agreeing to the Duke’s trick, Isabella is able to subvert Angelo’s either/or choice. The Duke’s actions allow for an understanding of Isabella’s story which escapes the confines of Angelo’s either/or dichotomy, which recognises that without integrity an act of compassionate self-giving quickly becomes one of self-annihilation. Released from the limitations of the ‘should she/shouldn’t she’ alternatives, the empty ‘choice’ between Isabella’s virginity and Claudio’s life, we are thus able to acknowledge that even good, positive, life-affirming relationships like that between Isabella and Claudio can become ‘invasive and overpowering … diminish[ing] rather than enlarg[ing] the individuals that participate in them’.55 So understood, the Duke’s solution achieves the seemingly impossible: it protects Isabella’s personal autonomy, saves Claudio’s life and secures their ongoing sibling-ship. It seems almost too good to be to be true. And, sadly, it is. Angelo reneges on his bargain and sends word that Claudio must die. While for some, the so-called ‘bed trick’ evidences yet again Isabella’s ‘artifice’56 (‘she is all for saving her soul, and she saves it by turning, of a sudden, into a bare procuress’),57 more importantly, it seems the Duke has significantly underestimated the duplicity of his deputy. Outwitted but not outdone, the Duke engages in another act of surreptitious substitution, this time keeping both Mariana and Isabella in the dark.58 The balance of power, which has shifted during the course of the play, away from the traditional masculine domain of abstract justice toward the amalgamation of justice and care, is restored as Mariana and Isabella become ‘instruments of some more mightier member’.59 By the beginning of Act 5, Isabella is ‘a shadow of her former articulate self, on her knees [alongside Mariana] before male authority’.60 As the characters gather on stage to welcome the Duke, Isabella publicly exposes (and, in part, defames) Angelo as ‘forsworn’, a ‘murderer’, a hypocritical ‘adulterous thief ’ and ‘virgin-violator’ (5.1.38–41). Her cries for ‘justice, justice, justice, justice!’ meet with (affected) disbelief and pity from the Duke until the arrival of Mariana and the unmasking of the Duke forces a confession from Angelo.61 Of course, all this (and more) the Duke (and the audience) already knew. But this is not to suggest that there are no surprises for the key players in Act 5: for the remainder of the play, unlikely duplicity and unexpected homecomings frame the action.

54

3.1.229–42. West, n 8 above, at 2. In Geckle, n 32 above, at 73. 57 Arthur Quiller-Couch, ‘Introduction’ in A Quiller-Couch and J Dover Wilson (eds), Measure for Measure (Cambridge, Cambridge University Press, 1922) xxx, cited in Geckle, n 4 above, at 164. 58 4.3.100–2. 59 5.1.235. 60 Marcia Riefer, ‘“Instruments of Some More Mightier Member”: the Construction of Female Power in Measure for Measure’ (1984) 35(2) Shakespeare Quarterly 157, 158. 61 5.1.25, 359–67. 55 56

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The recounting of the events of the play lays the foundation for the Duke’s ‘new-found openness toward his subjects … [and willingness] to make judgments on his people by listening to them and by incorporating their viewpoints into his own otherwise sterner viewpoints’.62 So viewed, they, and in particular Isabella’s story, provide a backdrop or explanation for the Duke’s interpretation of the purpose of judge and judging: His merciful judgments consistently contain a stinging element of punishment: nearly every character is asked to enter or renew a contract that requires more commitment than he has previously given … [as] the Duke attempts to teach his subjects the value of mercy.63

His manipulative threat to balance violence with violence (‘An Angelo for Claudio, death for death’ (5.1.402–4)) proves empty. Rather than effecting another substitution, he seeks to maintain and re-establish connections. Angelo is to renew and fulfil his promise to the ‘genuinely good and … unconditionally forgiving’ Mariana,64 the newly-pardoned Claudio and Lucio are to marry Juliet and Kate.65 But what of Isabella and Mariana? Coleridge condemns Mariana’s marriage to Angelo as ‘not merely baffl[ing] the strong indignant claim of justice … but … degrading to the character of woman’.66 Certainly, Mariana has little or no opportunity to decline the plan to which the Duke not merely gives his ‘consent’ but ‘entreats’ her to undertake.67 Similarly, Marcia Riefer contends the Duke’s ‘tampering with Isabella’s character … is no less a violation than Angelo’s attempt to possess her body’.68 His ‘testing’ of Isabella, allowing her to believe that her brother is dead until the very last moment, is unnecessarily cruel and manipulative.69 The explanation that the Duke has lost faith in Viennese society and that ‘he puts [Isabella] through fire to have that faith restored’, although perhaps true, remains unsatisfactory.70 What’s more, she appears to blame herself for Angelo’s

62

Lewis, n 35 above, at 286. Ibid. 64 Widmayer, n 39 above, at 157. See Leggatt’s rather less flattering description of Mariana as ‘obsessed with a man who wants nothing to do with her, and who beds her thinking she is someone else’ (n 13 above, at 347). 65 The imposition of marriage as a punishment (for men) or just rewards (for women), while problematic, was not unusual in Shakespeare’s England (Sokol and Sokol, n 15 above, at 42–3). 66 Samuel Taylor Coleridge, Shakespearean Criticism (Thomas Middleton Raysor (ed), 2nd edn, London, Everyman’s Library, 1961), cited in Geckle, n 32 above, at 71–2. His comment presumably only refers to those Shakespearean women deemed to be creatures of ‘passion and feeling’ and as such is unlikely to include Isabella who he criticised as ‘too analytical and too unfeeling … tend[ing] to lower the character of the female sex’ (ibid 73). 67 4.1.64–5; see Maria Aristodemou, ‘Law and Desire in Measure for Measure’ (1998) 9(1) Law and Critique 117, 124. 68 Riefer, n 60 above, at 168; also Aristodemou, n 67 above, at 132. 69 4.3.99–101. 70 Juliet Stevenson, in Rutter, n 5 above, at 38. 63

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actions.71 Isabella and Mariana, like many of Shakespeare’s heroines, can appear as little more than pawns in a male-dominated game: ‘the friendship between Isabella and Mariana, although used to outwit male authority, is supplanted in the end by marriage’, their ‘autonomy and female resistance … treated as abnormal and problematic’.72 In the course of five lines, Isabella’s world is turned upside down: the condemned Angelo is pardoned, she is reunited with her brother, and the Duke proposes marriage.73 No wonder she is left speechless. It is not necessarily the case that a ‘disturbing and unusual sense of female powerlessness’74 pervades Act 5. The relationship between Mariana and Isabella lies at the heart of the Act. Just as Mariana was Isabella’s substitute, so Isabella takes Mariana’s place by first, undergoing the embarrassment and risk of imitating that which she would not become and secondly, in joining Mariana in pleading for Angelo’s life. Her disinterested plea to the Duke for mercy, although perhaps suspect, is weightier than Mariana’s smitten entreaties: ‘As Mariana, not Isabella, was the sexual partner Angelo should have had, so Isabella, not Mariana, is the advocate he needs’.75 Unlike their relationships with Claudio and Angelo, the friendship between Isabella and Mariana is truly reciprocal; Isabella seeks the Duke’s leniency as much for Mariana as for Angelo,76 while Mariana’s ability to recognise ‘the limits of the world’s judgement of women’ gently challenges Isabella’s tacit acceptance of the societal assumption that ‘a woman’s only virtue is her chastity’.77 So understood, while Juliet, Mariana and Kate are all ‘advantaged’ by and (presumably) willing participants in their unions,78 a fairy-tale ending to Isabella’s story (both within and beyond the context of the play)—properly understood as a new beginning—does not inevitably depend on her acceptance (or indeed refusal) of the Duke’s marriage proposal.79 It is possible that Isabella’s silence at the end of Act 5, rather than evidencing her submission, is better recognised as ‘a form of resistance to the patriarchal authority and to the male discourse in which this authority operates’.80 Indeed, if Jonathan Goldberg is

71 5.1.438–40; see Amy Ross, ‘Vienna Then and Now: the Impact of Shakespeare’s Measure for Measure on the Twenty-First Century Legal Profession’ (2000–01) 46 South Dakota L Rev 781, 797. 72 Juliet Stevenson, in Rutter, n 5 above, at 38. 73 5.1.483–7. 74 Riefer, n 60 above, at 161. 75 Leggatt, n 13 above, at 348. 76 Although, see Aristodemou, n 67 above, at 131. 77 Dusinberre, n 25 above, at 54. 78 3.1.238. 79 Marina Warner, From the Beast to the Blonde: On Fairy Tales and their Tellers (London, Vintage, 1995) xxi. Reactions to the marriage between Isabella and the Duke vary; see Norman Nathan, ‘The Marriage of Duke Vincentio and Isabella’ (1956) 7(1) Shakespeare Quarterly 43; Michael D Friedman, ‘“O, let him marry her!”: Matrimony and Recompense in Measure for Measure’ (1995) 46(4) Shakespeare Quarterly 454. 80 Baines, n 16 above, at 299; also, Aristodemou, n 67 above, at 132–3.

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correct in his contention that ‘it is not necessarily a sign of power to have a voice, not necessarily a sign of subjection to lose it’,81 then her silence is deafening. Whatever the Duke intentions might have been, it is only after the intervention of Isabella and Mariana that he reveals Claudio’s true fate.82 It is clear that Viennese justice will never be the same again. Things have moved on. The abstract formal (in)justice and unfortunate licence that flourished during Angelo’s and the Duke’s periods of office have been replaced by an understanding of justice informed by conversation and relationship. The Duke’s tendency to oscillate between excessive leniency (on his part) and rigid enforcement (through his deputy) has been checked by what he has witnessed in his disguise as the Friar (5.1.314–15). His natural inclination toward tempering justice with mercy, of balancing measure for measure, has been given a more solid foundation and purpose.

CONCLUSION Sean Holmes suggests that, at the end of Measure for Measure, the audience should not clap but rather be left ‘feeling disturbed by having seen human nature at its worst’.83 Despite marriages aplenty, feelings of resolution are limited.84 There are too many unanswered questions: Can Angelo love Mariana? Does Isabella return to the convent? Should Claudio forgive her and Isabella him? What will happen to the disgraced Angelo and the Machiavellian Duke? Will Viennese society continue to move away from the debauchery and intrigue that has marked its past? And while the ending of the play is something to be renegotiated nightly, the words run out: the stage, like Isabella, falls silent. Described as one of Shakespeare’s most maligned characters,85 ‘the strength of Isabella lies, not in her much-advertised chastity, but in her integrity and humility. She is a woman who keeps the letter and spirit of the law in a society which does not’.86 Her choice between herself and her brother forms the crux of the play. It establishes Isabella as truly iconic, both in the modern sense of the word—as someone to admire—and also in its more traditional sense, as a ‘focus of contemplation’.87 81 Jonathan Goldberg, ‘Shakespearean Inscriptions: the Voicing of Power’ in Patricia Parker and Geoffrey Hartman (eds), Shakespeare and the Question of Theory (London, Routledge, 1985) 130. 82 Geckle, n 4 above, at 168. 83 Sean Holmes, Director of 2003 RSC production of Measure for Measure, in ‘Measure for Measure as a Problem Play’, available at www.rsc.org.uk/measure/teachers/genre.html. 84 Harriet Hawkins, Likenesses of Truth (Oxford, Clarendon, 1972), in Lewis, n 35 above, at 271–2. 85 Rutter, n 5 above, at 26. 86 Eileen Mackay, ‘Measure for Measure’ (1963) 14(2) Shakespeare Quarterly 109, 110. 87 Karen Armstrong, A History of God: From Abraham to the Present: the 4000 Year Quest for God (London, Vintage, 1999) 257.

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Her story orientates the imagination towards the (re)imaging of previous insights and future perspectives; providing a lens through which to observe ideas of judging, justice, relationship and care.88 In so arguing, my point is not that Isabella herself acts as or even ‘resembles’ a judge (although there may be similarities), nor that she teaches the Duke or Angelo the strategic value of mercy (although she may play a part) but rather that her story throws a spotlight on the judge, judgment, autonomy, justice and care. It troubles the Herculean ideal, rendering contingent traditional understandings of the judge and judicial reasoning, including the assumption of disassociation and independence. Her subversion of the expectations of her sisterly role(s) acts as a catalyst for disruption, for the transformation of the adjudicative landscape. Put another way, informed by the recognition of relationships with (as opposed to) others, Isabella’s story reveals the promise of a judge who tempers justice with care, infuses care with justice, listens with connection, recognises the importance of relationships to autonomy and, only then, begins to judge.

88 Costas Douzinas ‘Prosopon and Antiprosopon: Prolegomena for a Legal Iconology’ in Costas Douzinas and Linda Nead (eds), Law and the Image: the Authority of Art and the Aesthetics of Law (Chicago, University of Chicago Press, 1999) 43.

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III

Shakespeare and the Law of Love

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6 Shakespeare Possessed: Legal Affect and the Time of Holding BRADIN CORMACK*

HIS CHAPTER CONCERNS the affective dimension of holding land, but I want to open by reflecting briefly on a lexical moment in Shakespeare’s Merchant of Venice that conjoins law and desire to figure legal subjection in terms of a more general possession. In the trial scene, Shylock answers Portia’s appeal to mercy as the ethical principle that would compel him to forgo his contract with Antonio, by insisting on a differently affective relation to the legal norm. ‘My deeds upon my head! I crave the law’, he says (4.1.203).1 Depending on how we hear the verb, which at its simplest means just to ask or beg something, the sentence can be understood to orient Shylock toward the law in two ways. In an older sense, to crave something is to request it specifically from a legal tribunal or as a legal right, a meaning implicit in someone’s being said to crave pardon, or parlay, or the law of arms, as Basset does in Henry VI Part 1: ‘And in defence of my lord’s worthiness / I crave the benefit of law of arms’. (4.1.99–100)2 Given the word’s legal dimension, Shylock’s appeal is unsettling, since the object he craves may seem already to be inside the craving itself. In a near tautology, he asks at law for law. Here, then, aptly positioned against the pound of flesh, the too substantial thing he seeks from Antonio, is a formal request for the form of law. In the logic of Shylock’s appeal, at once cruelly realist and poignantly formalist, two particular and recognisable objects coincide

* Thanks to Lauren Berlant, Bill Brown, Kathy Eden, Rachel Eisendrath, Stephen Orgel, Joshua Phillips, Paul Raffield, Richard Strier and Gary Watt. An earlier version of this chapter appeared as ‘Strange Love: Or, Holding Lands’ in (2007) 1(2) Law and Humanities 221–38; thanks to the editors for permission to reprint from those pages. 1 William Shakespeare, The Merchant of Venice (Jay Halio (ed), Oxford, Oxford University Press, 1993). All parenthetical citations of the play are to this edition. 2 William Shakespeare, Henry VI Part One (Michael Taylor (ed), Oxford, Oxford University Press, 2003).

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in one demand as two versions of right, with flesh and form balancing one another and, turn by turn, dissolving into the other as justice’s measure or ground.3 ‘Crave’ has a second, less technical meaning that helps substantiate the nature of this formal appeal to law for law. Shylock’s sentence opens with a selfconsciously ironic oath (‘My deeds upon my head’) that testifies to his craving not as request, but as something sincerely felt. He craves the law in the sense that you crave particular foods, because he wants it, longs for it, has an appetite for it. Taken together, crave’s legal and appetitive connotations designate the formal attachment to law qua law as a species of desire; Shylock’s sentence thereby presents in miniature one of the play’s central arguments about the force of law, whether in relation to Shylock’s bond against the hated merchant who hates him, or to Portia’s shaping of her love to her father’s will. The law does not only regulate desire. It is in desire, just as desire is in the law, namely the desire to be possessed by discipline and the recognition it accords. Very compactly, Shylock is asking to become the law’s proper subject, this in the sense of attaching to the full civic identity that conceptually functions for him, as Julia Lupton and Anton Schütz have argued, in opposition to the Venetian codes that exclude the alien even as they accommodate him.4 Law qua law institutes Shylock into a form of longing. The charged lexical moment that holds this thought is of some methodological interest, because it exemplifies how legal critique in imaginative literature might be non-agonistic in force.5 When a literary text uses law for metaphoric or narrative ends, it may also be testing the law’s categories, and so come to reflect back at law an intensified account of the work that, less audibly, those categories do in the law itself. As intensification, I mean, the literary encounter with law can be construed as outlining and recharging the frames in which legal thinking proper happens.6 During the 1590s, the specific relation of law to desire found expression in the imaginative literature produced around the Inns of Court; through, for example, the intersection of love lyric and the pedagogical imperative at the Inns to

3 On ius, in one of its Roman usages, as a synonym for law itself, see Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge, Cambridge University Press, 1979) 5–13, 8. 4 Julia Reinhard Lupton, Citizen Saints: Shakespeare and Political Theology (Chicago, University of Chicago Press, 2006) 75–7, 96–101; Anton Schütz, ‘Structural Terror: a Shakespearean Investigation’ in Peter Goodrich, Lior Barshack and Anton Schütz (eds), Law, Text, Terror: Essays for Pierre Legendre (New York, Routledge-Cavendish, 2006) 79–81. 5 On the methodological impasse consequent upon binarist thinking in law-and-literature studies, see Julie Stone Peters, ‘Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary Illusion’ (2005) 120 Publications of the Modern Language Association 442. 6 On the common law’s pluri-jurisdictional history as a particularly important frame for legal thinking, see Peter Goodrich, Law in the Courts of Love: Literature and other Minor Jurisprudences (London, Routledge, 1996). On renaissance literature in relation to jurisdictional potential, see also Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature and the Rise of Common Law, 1509–1625 (Chicago, University of Chicago Press, 2007).

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internalise the common law’s growing sovereignty.7 In the main body of this chapter, however, I want to explore this relation of desire and legality in the paradigmatically technical sphere of land law. My focus is thus in sympathy with Heather Dubrow’s compelling suggestion that the law’s everyday reasoning can be a potent source of cultural meaning.8 My essay falls into three parts, the first on Richard II, the second on Plowden’s Reports, and the third on Shakespeare’s sonnets. Its general argument is that in the language used by common lawyers for imagining legal possession there was an operative metaphysics which Shakespeare looked to for its affective content, especially in relation to the experience of future time as an emptiness that might govern the present and structure a claim there.9

HOLLOW TIME As a play about the distinction between power and authority, and the way in which each can seem both substantial and illusory in relation to the other, Richard II (ca 1596–97) appeals repeatedly to a species of hollowness that is also full.10 Often, the language of heaviness attaches to these moments. When the Duchess of Gloucester takes leave of Gaunt, she speaks of her grief as one that, like an odd tennis ball, ‘boundeth where it falls, / Not with the empty hollowness, but weight’(1.2.58–9), a formulation that allows this grief, in opposition to the hollowness that is empty, to be a hollowness that is weighty. The substantial emptiness of language is at issue when Mowbray imagines the ‘heavy sentence’of his banishment (1.3.154) as a form of linguistic estrangement. ‘Within my mouth you have engaoled my tongue’, he tells Richard (1.3.166), adding that his banishment must be a form of ‘speechless death’ insofar as exile forecloses ‘my tongue’s use’ in the language he knows (1.3.172, 161). The mouth, here, is a space that the tongue fills or becomes incapable of filling; and the same tension between a mouth’s hollowness and a tongue’s potentially empty heaviness is audible when Richard chastises the dying Gaunt for speaking with a ‘tongue that 7 John Donne’s ‘Satire 2’, for example, satirically portrays the law’s formalisms as being motivated by unruly desire. On the institution of law in relation to appetite (and food), see Peter Goodrich, ‘Eating Law: Commons, Common Land, Common Law’ in Goodrich, n 6 above, 72–94. On the symbolic legitimisation of law at the Inns, see Paul Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power 1558–1660 (Cambridge, Cambridge University Press, 2004). 8 Heather Dubrow, ‘“They Took from Me the Use of Mine Own House”: Land Law in Shakespeare’s Lear and Shakespeare’s Culture’ in Denis Kezar (ed), Solon and Thespis: Law and Theater in the English Renaissance (Notre Dame, IN, University of Notre Dame Press, 2007) 81–2. 9 For an account of Antonio’s melancholy in relation to future risk, see Luke Wilson, ‘Drama and Marine Insurance in Shakespeare’s London’ in Constance Jordan and Karen Cunningham (eds), The Law in Shakespeare (Houndmills, Palgrave, 2007) 127–42. 10 William Shakespeare, King Richard II, Arden 3rd series, Charles Forker (ed) (London, Thomson Learning, 2002). All parenthetical citations to the play are to this edition.

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runs so roundly in thy head’ (2.1.122). Then there is the ‘hollow ground’ in which the executed Bagot, Bushy and Green are ‘graved’ (3.2.140), and the hollow that Gaunt identifies with his name when he tells Richard, ‘Gaunt am I for the grave, gaunt as a grave, / Whose hollow womb inherits naught but bones’. (2.1.82–3) Hollow and the heir, in bones, of a nothing that is yet heavy, the grave resonates with Gaunt’s sense that King Richard has hollowed out his inheritance by ‘let[ting] this land by lease’ and thereby dispossessing himself of the substance passed to him from his ancestor (2.1.107–10).11 As a word for imagining inheritance gone wrong, hollowness becomes a fulcrum on which the play measures its major constitutional questions. There is Richard’s ‘hollow crown’, which in Richard’s formulation, always ‘rounds the mortal temples of a king’ (3.2.160–1), but which for Gaunt is hollow in Richard’s case specifically because its ‘compass is no bigger than thy head; / And yet, encaged in so small a verge, / The waste is no whit lesser than thy land’. (2.1.101–3) As formulated here, Richard fills the crown’s emptiness badly because he fills it with the second emptiness of the waste he has made of English land. A second symbol of centralised royal authority recasts this territorial dynamic in temporal terms, namely the ‘blank charters’ with which Richard authorises his delegates to extract revenue from his subjects in proportion to what they can pay (1.4.48). The blank charter is tyrannical because its blankness is a terrible fullness in waiting. Simultaneously empty and full, the charters represent the crown’s uncontrollable fiscal potential by existing in two times at once: in the present that authorises them as legal instruments and in the future in which they will take on their final form. As with the grave, it is time that makes this hollow heavy. Shakespeare charges the tension between hollowness and the weighty fullness of power (and potential) in terms of his characters’ affective relation to substance through time. Upon returning from Ireland, Richard doubly defines the relation between his sensing body and his land, saying, ‘I weep for joy / To stand upon my kingdom once again. / Dear earth, I do salute thee with my hand, / Though rebels wound thee with their horses’ hoofs’. (3.2.4–7) According to the Latin etymology, Richard’s standing upon the land makes it into substance, the matter that stands under him. In taking the earth into his hand, moreover, he claims the land as his ‘demesne’, a term for possession that Sir Edward Coke imaginatively relates through the French to the hand of the one in possession: ‘in dominico suo . . . which is as much as to say as Demeine or Demain, of the hand ie manured by the hand, or received by the hand’.12 The joy marked by Richard’s tears is his affective attachment to land as something recognisably substantial. What places his 11 For law and constitutional crisis in Richard II, see JH Hexter, ‘Property, Monopoly, and Shakespeare’s Richard II’ in Perez Zagorin (ed), Culture and Politics from Puritanism to the Enlightenment (Berkeley, CA University of California Press, 1980) 1–24; Dennis R Klinck, ‘Shakespeare’s Richard II as Landlord and Wasting Tenant’ (1998) 61 College Literature 21; William O Scott, ‘“Like to a Tenement”: Landholding, Leasing, and Inheritance in Richard II’ in Jordan and Cunningham, n 9 above, at 58–72. 12 Sir Edward Coke, The First Part of the Institutes (London, 1628) sig 17r.

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kingship in crisis is that for him, affect and legal possession are so connected without consideration of time, but only within the fantasy of a continuous present. The play emphasises this point through an earlier scene in which Richard’s Queen has defined her grief in terms of a legal reversion, a category that links affect and possession in such a way as to clarify the temporal stakes of the dynamic overlooked by Richard. Bushy tells the Queen that, having ‘promised’ the King to be ‘cheerful’, she should ‘lay aside life-harming heaviness’. (2.2.2–4) She replies that she cannot, even though she knows ‘no cause’ for the grief she feels (2.2.6). This grief is, rather, like an ‘unborn sorrow, ripe in Fortune’s womb’ that she feels to be ‘coming towards me, and my inward soul / With nothing trembles’. (2.2.10–12) To comfort her, Bushy says that this particular nothing is but one among the ‘shadows’ that accompany the true ‘substance of a grief ’. (2.2.14) To weep at ‘things imaginary’ is thus to make a category mistake and substitute substance for shadow; her sorrow is only a ‘conceit’ (2.2.27, 33). But the Queen insists that her nothing is the more terrible for not being even a conceit, which at least derives from ‘some forefather grief ’ in the past (2.2.35). Her sorrow comes back at her, instead, from an unspecified future: For nothing hath begot my something grief, Or something hath the nothing that I grieve. ’Tis in reversion that I do possess— But what it is, that is not yet known what, I cannot name. ’Tis nameless woe, I wot. (2.2.36–40)

A reversion is the interest in a hereditament, especially land, which a grantor retained such that the fee should revert to him or her upon the termination of the particular estate granted by the deed. This was an expectation and also a real interest, which might therefore be alienated before being joined to possession of the land at the termination of the grantee’s estate.13 The Queen is haunted by a grief she possesses even though her full interest in it belongs to the future in which it will get a name and become particular. The question posed is what one in possession of a reversion possesses. The Queen argues that the undisclosed grief she has—a heavy hollowness inside the hollowness of ‘Fortune’s womb’—is heavy because it is a possession of substance. By analogy to the difference in temporal degree between reversion and holding, she means that whatever the difference between a future orientation towards affect and the affect itself, the substance of both is one, rather than two. Bushy, on the other hand, insists that there is a fundamental gap between the two, the

13 On the reversion as both a future interest operating in the present and (viewed as ‘an estate in the land’) an ‘absolute fee simple’, see JH Baker, Introduction to English Legal History (3rd edn, London, Butterworths, 1990) 313. On reversion, see also AWB Simpson, A History of the Land Law (2nd edn, Oxford, Clarendon Press, 1986) 78–80.

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difference in degree subtending a difference in substance, making the thing and the waiting for the thing contraries. For the Queen, the hollowness of time is heavy, and for Bushy empty. This is one of several scenes that, using law metaphorically to describe affect, turn out to describe legal possession itself (including kingship) as an affective charging of time. When Bolingbroke, for example, landless upon his return to England, offers his thanks to Ross and Willoughby, he compares his present impoverishment to an heir’s legal interest during wardship, assuring his allies that his thanks, full only in expectation, ‘till my infant fortune comes to years, / Stands for my bounty’. (2.3.66–7) Similarly, on the road to Ravensburgh, Northumberland plays on the affective dimension of ‘enjoyment’ as a term for having, flattering the future king with the thought that his company is a thing equally pleasant in its present and future possession. The pleasure he takes in Bolingbroke’s conversation, Northumberland says, is like that of Ross and Willoughby, who have yet to meet Bolingbroke, but whose journey to him is already ‘sweetened with the hope to have / The present benefit which I possess; / And hope to joy is little less in joy / Than hope enjoyed’. (2.3.13–16) This playful attention to time, possession and affect is especially compelling because it responds to the fact that the same dynamic is somehow already inside the legal conception of future interests, such that John Cowell, for example, can define the remainder (one kind of future interest) as a ‘hope to injoy lands . . . after the estate of another expired’.14 The play’s intensified apprehension of the affective regime of legal interests ultimately serves to adumbrate a primary constitutional paradox, namely the ontological status of what will turn out to be Bolingbroke’s interest in the throne, relative to Richard’s interest in the same. The logic of future interests at common law gave Shakespeare a temporal axis on which to remeasure the territorial event that is Henry IV’s usurpation. For Bolingbroke comes to seem a king by controlling futurity, a point King Richard makes when he remarks that his cousin behaves with the ‘common people’ ‘As were our England in reversion his, / And he our subjects’ next degree in hope’. (1.4.35–6) Since the reversion is a future interest pertaining to the grantor, there is a sense here that Bolingbroke is not just holding out for the future, but already structuring it, with Richard’s own kingship coming to seem dependent on some prior claim in his rival. For his part, Richard profoundly misunderstands time’s role in what can rightfully be called his. Wilfully ignorant of time’s claim upon him, the King takes possession of Bolingbroke’s land by saying in a magisterial present tense (and with a pun on common law seisin), ‘we seize into our hands / His plate, his goods, his money and his lands’. (2.1.209–10) This is worse than imprudence. And York encapsulates the problem when he says that to abrogate Bolingbroke’s rights as his father’s heir is to take away even ‘from Time / His charters and his customary rights’.

14

John Cowell, The Interpreter (Cambridge, 1607) 3K4v.

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(2.1.195–6) Arguing the Queen’s point, York means that time itself has rights that are not mere conceit. To treat them as unreal, he says, is to disrupt not only the customary past, but also present and future—‘Let not tomorrow then ensue today’—as well as the very substance of Richard’s identity as hereditary king: ‘Be not thyself—for how art thou a king / But by fair sequence and succession?’ (2.1.197–9) The future at law is no less real a place than the past, and both have claims on the present in which Richard foolishly makes his politics.

HOLDING TIME York’s (and the Queen’s) sense that possessing English land means bargaining with the substance of time is true in the most basic legal sense. According to the common law system of tenure (Lat tenere, ‘to hold’), all interests in land are ultimately held from the Crown. The most valuable interest that can be held is an estate in the land, the estate being a temporal interest that is sometimes less and sometimes more. Edmund Plowden, in his report of Walsingham’s Case (1571), nicely summarises the point that legal possession of a material thing is, in the end, possession of its dematerialised temporal form: [B]ut the land itself is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time, for he who has a fee-simple in land has a time in the land without end, or the land for time without end . . . and he who has an estate in land for life has not time in it longer than for his own life, and so for him who has an estate in land for the life of another, or for years.15

In the whole hierarchy of legal interests, and even in the case of fee simple, the closest English law comes to absolute ownership, time girds possession. Whatever the particular mode of tenure (whether knight-service, for example, or some form of villeinage), it is technically the estate that is held, which means that a tenant’s possession of the real thing is effected as possession of a time-in-thething, itself construed as a different thing. As York tells Richard, there is at common law no getting around time. The case of Throckmerton v Tracy, from 1554–55, also reported by Plowden, concerns a reversion and clarifies the particular stakes of Richard’s unwise bargain with time. The plaintiff, John Throckmerton, brought an action against Richard Tracy and a bailiff, William Nicholson, for attaching cattle grazing on 100 acres at Beckford. Tracy and Throckmerton traced their respective claims to different and, in the event, competing reversions. Prior to the dissolution of the 15 Edmund Plowden, The Commentaries or Reports [1571, 1579] (London, Brooke, 1816) vol II, 555. I have regularised capitalisation.

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monasteries the land had been held by an abbot who leased the land for term of life to John and Dorothy George and their daughter Joan, ‘the Reversion of the same belonging to the aforesaid Abbot and his Successors’. With the agreement of the abbot, these three granted the land to one John Smith and his wife, Margaret, in a two-part formula: first as a reversion of the lands, and then ‘to have and to hold . . . from the feast of St. Michael the Archangel next coming, after the death’ of the Georges or ‘whensoever by any other means the reversion aforesaid should fall, until the end of the term of 21 years from thence next following’.16 This was intended, in effect, as an extension of the original lease in favour of the Smiths, for 21 years to begin at the end of the lease for life to the Georges. John George, the last in the family to survive, died, and according to the reversion, the Cartwrights, to whom the Smiths had in turn granted their interest, came into possession for 21 years. Subsequently, the Cartwrights granted their interest to Throckmerton, who placed his cattle on the land ‘to eat up the grass then growing there’, which they did until Richard Tracy, the defendant, had them seized for doing waste to land properly belonging to him. The problem was that at the dissolution, the abbot had surrendered his reversion in fee simple to Henry VIII, who then granted that reversion in fee simple to Tracy. The substantive question was whether the lease to the Smiths for 21 years was good or not, which is to say whether Tracy had to wait out the remainder of the 21-year term or was already in possession as the holder of the abbot’s (and then the king’s) reversion on the original grant to the Georges.17 The case turned on whether the two-part deed to the Smiths was repugnant, so inconsistent as to render it invalid. In its first part, or its ‘premises’, the deed granted a reversion; in its second part, or its ‘habendum’ clause, it passed the land to the Smiths as a possession ‘to have and to hold . . . until the end of the term of 21 years’. In assessing the relation of the two parts, the parties took up the question of how reversion and possession might be understood to go together. The defendant’s counsel argued that the two were separate and incompatible: ‘For the reversion of the land, and the land itself are not the same thing, but vary not only in words, but in substance also [et en effecte auxi]’.18 At the centre of this argument was the observation that, as a future interest, a reversion was qualitatively different from present possession, ‘for there cannot be a reversion of a thing, but where the possession of it is divided from it’.19 This meant, most simply, that a grant of a reversion could not pass a thing in possession, since an estate in possession has a different temporality from an estate in which possession is postponed: in the common law phrasing, it is ‘of another nature and

16 Ibid vol I, 145. Terms in law French are cited from the first edition of the Commentaries (London, 1571). 17 Ibid 145–8. 18 Ibid 151. 19 Ibid 151.

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degree’.20 In the principal case, the defendant argued that the Smiths’ grant from the Georges (and thus Throckmerton’s claim against Tracy) depended on a reversion that, as such, must ‘vest and take effect presently whilst it is a reversion’, and not, as had happened, ‘at a Day to come’, when it was no reversion and ‘no longer in being [quant ne serra chose]’ at all, the Georges’ original interest having been extinguished by their deaths.21 Reading the possession specified in the habendum through the grant of reversion in the premises, Tracy’s lawyers argued that degree, the reversion’s temporal aspect, trumped substance, the thing (here, land) to which a reversion refers. Throckmerton’s lawyers agreed that a grant of a reversion could not pass both possession of the land and the reversion’s particular temporal interest. But against Tracy they insisted that it was possible by ‘words of reversion’ to pass the substance—that is, the land—‘without the degree’ (emphasis added).22 Arguing that substance must trump degree, they gave primary importance to the fact that possession and reversion shared the same substance, namely the land itself. The reversion, they said, was made up of two things: The chief or principal thing is the hereditament from whence it springs . . . if a reversion of land, then the land, for that is the foundation [foundacion] of it; the other is no more than the degree of it . . . and the substance [substaunce] of which it consists is the thing itself [chose mesme] from whence it springs, for a reversion of land and the land in reversion is all one, so that land is the substance.23

Accordingly, so the argument went, the habendum clause was not repugnant, but could instead be read as identifying, as the true content of the reversion granted in the premises, the substance already held in the reversion, albeit according to its degree: the reversion of the land, and the land itself, are not two distinct things [choses distinct, et severall], as before hath been alledged, but they are one same thing in substance [en substance]. And then, when the reversion of the land is granted, habendum the land itself, this explains what was the meaning of the party in the word (reversion), and is pursuant enough to the grant.24

Where Tracy’s lawyers read forwards from the reversion to make nonsense of the habendum clause as passing possession of something that could not at the moment of transmission still be in being, Throckmerton’s lawyers read backwards from the habendum clause to attribute fully to the reversion the same substance as in the possession. For Throckmerton’s lawyers, the reversion was

20 21 22 23 24

Ibid 152. Ibid 153. Ibid. Ibid. Ibid 155.

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always already substantial, while for Tracy’s the name of reversion was empty of its grounding substance until the instant when degree and thing were joined. In deciding for Throckmerton, the court was confirming in part that the intention of a deed—which here was clearly to pass possession—should be followed where sense could be made of it. But it also narrowed the gap between word and thing, by giving priority in its construction of a reversion to the substance therein, as that was mediated by time. The legal arguments on the two sides of the question thus coincide with the debate in Richard II between the Queen and Bushy about the substantial nature of a grief in reversion, with the court deciding, with the Queen, that the thing in waiting was, yes, substantially that thing. The legal future was not chiefly hollow, but already made heavy through substance’s elastic mediation in time. Richard II serially links affect to possession and thereby intensifies the affective dimension of legal enjoyment itself. Nowhere in the play, however, is the affective content of a determining future at law registered more clearly than in its negation, in Richard’s final, poignant recognition that time cannot by fiat be emptied of its substance. Imprisoned at Pomfret Castle, Richard hears music and, irritated by the disorder of its rhythms, ‘contrasts his critical sensitivity to music with his lack of political . . . perception’.25 Lamenting the fact that as king he had no ‘ear to hear my true time broke’, he confesses that ‘I wasted time and now doth Time waste me’. (5.5.48−9) This is a legal thought. Within the musical metaphor, Richard recasts his story as a tragedy of estate management, fusing Gaunt’s territorial thesis that Richard has emptied his crown by wasting his land with York’s temporal thesis that Richard ought not ignore time’s general claim upon possession. To waste land is to waste time. Richard has ‘wasted time’ by evacuating it of that futurity that informs possession and gives time substance. In response, time now evacuates Richard of the authority that, also as a potential, gives him weight. In a world of temporal interests, authority, like time, is a present power filled by the future coming back at it.

STRANGE LOVE Shakespeare’s sonnets test in another register the question taken up in Common Pleas and in Richard II. Through all the turns of their optimism and disappointment, the poems to the young man pursue the question of how emptiness might become full and thereby transmit substance. This is the theme both of the procreation sonnets, where the as yet ‘uneared womb’ of Sonnet 3 (l.5) is a hollow ‘vial’ (6.3) in which the friend’s ‘substance’ might ‘still [live] sweet’ (5.14), and of the sequence as a whole, where a poem or line or word is variously said to be 25

Richard II, n 10 above, at 465, note to lines 47–8.

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capable of containing the beloved’s form (or, alternatively, the speaker’s form) for the future.26 The poems describe and invent this erotic continuity in part by deploying a vocabulary from land law. That language, and especially the language of future interests, provided Shakespeare with what I would call a poetics of possession, a way to meditate on the power of form to bring substances (whether person and land or person and person) into relation across time. To unpack the argument that a sonnet might thus effect the continuity of substance, I turn now to two poems, which add to my lexicon three further legal categories—entail, remainder and use—that, like the reversion, are charged by the play of substance in time. Sonnet 74 asserts that the poem’s addressee—the young man, but by implication the general reader as well—need not despair at the idea of the poet’s death, but instead should be ‘contented’ insofar as the poem will pass on the poet’s spirit, this as a content that can fill the beloved and so make him ‘contented’ in the sense of happy: But be contented when that fell arrest Without all bail shall carry me away; My life hath in this line some interest, Which for memorial still with thee shall stay. When thou reviewest this, thou doest review The very part was consecrate to thee. The earth can have but earth, which is his due; My spirit is thine, the better part of me, So then thou hast but lost the dregs of life, The prey of worms, my body being dead, The coward conquest of a wretch’s knife, Too base of thee to be rememberèd. The worth of that, is that which it contains, And that is this, and this with thee remains.

The poem draws on two vocabularies for its argument that the poet’s life might be formally transmitted through the poem. A dominant metaphor is Eucharistic. Along with the notion that the part of the poet contained by the poem is consecrated to the beloved, the last line—‘And that is this, and this with thee remains’—mimics from the mass the formula ‘hoc est corpus meum’, which, in its iteration of a foundational and intimate sacrifice, transmutes substantial bread into a differently substantial vehicle for memory.27

26 William Shakespeare, Complete Sonnets and Poems (Colin Burrow (ed), Oxford, Oxford University Press, 2002). All parenthetical citations to the sonnets are to this edition. 27 On the Eucharist as intimate sacrifice and in relation to memory and presence, see Peter Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London, Weidenfeld and Nicolson, 1990) 56–63.

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The lines I want to pause over are the third and fourth, which discover the same mechanics for immortality in law: ‘My life hath in this line some interest, / Which for memorial still with thee shall stay’. The conceit is that the poet as writer possesses the poem in the sense of having an interest in it, and that in coming to possess the line as reader the beloved will also hold onto the mortal poet. The interest to which the poem alludes is the temporal estate in land through which, as Plowden outlines, possession of material land was imagined. According to the argument, the specific estate that makes poetic immortality possible is an estate that will ‘stay’ with the young man (l.4) or, to use that verb’s Latinate form, one that ‘remains’ with him (l.14). Rather than the fee simple, Shakespeare’s ‘interest’ points to the so-called remainder, and to an estate so limited as to determine the possession’s future. Entailment was the most important limitation a grantor could put on his or her estate, the fee tail being an estate that, according to the French etymology, has been cut down from the full fee by limitation of the possible heirs, as when someone grants land to John and issue of his body or to John and Anne and issue male of their bodies.28 The relevance of this kind of grant for a poem interested in how one outlasts time is that land-owners looked to such formulae to create perpetuities, that is, to tie up their holdings so as to prevent any future holder in whom possession vested from alienating his or her interest. But from early on the courts thought of perpetuities as a ‘juridical monster’, and entailment proved on its own too weak an instrument, since the courts variously allowed tenants in tail to break the entail and gain full possession, to the disadvantage of the next heir in tail.29 Here is where the remainder entered. Lawyers tried to stabilise perpetuities by assigning named future interests to limit alienability. The general form of the grant was as follows: A grants to B in tail, remainder to C on any number of conditions, remainder to D. For land to ‘remain’ in this context meant that, through the various stages of succession, the land stayed away (Lat remanere) from the grantor, which is to say that the force of the grant continued in time. In complex settlements, where the remainders might identify future possessors as particular but not yet specific persons, the legal question was whether land could remain perpetually away or whether, against the hopes of the grantor, full possession must ultimately vest in one who could then alienate. As AWB Simpson explains, an early formula that came close to succeeding was one in which the lawyers used life interests to create ‘a form of limitation known as the perpetual freehold’. Here, one might grant to ‘A for life, remainder to his son for life, remainder to that son’s son for life’ and so on. If taken at face value, this was a legal form that, without the language of entailment, would ‘be in effect an

28

On entails, see Baker, n 13 above, at 311–12, 318–21. Ibid 319; Simpson, n 13 above, at 126–37, 208–12. Baker cites the phrase ‘juridical monster’ from SFC Milsom, Historical Foundations of the Common Law (2nd edn, Toronto, Butterworths, 1981) 177. 29

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unbarrable entail’.30 But in 1585, in the aptly named Lovelace v Lovelace, the courts decided that to be valid a remainder must vest ‘in good time—that is, before the determination (or eo instanti with the determination)’ of the first life interest, this being the so-called ‘particular vested estate’ on which the contingent remainders depended.31 In a grant of contingent life interests in the male line, for example, only one remainder in the sequence would be valid—usually that of A’s son, but, where the son predeceased the grandson, that of A’s grandson. No forever future, then, just a limited one. Sonnet 74 represents poetic immortality by playing with the fantasy of the perpetual freehold. Subtending the poem’s representation of the poet’s life having an interest in his line is a grant of this kind: A grants possession to B for life, remainder to C, with possession passing to the beloved in his capacity as remainderman. In this way, the poem argues, and here is the second part of the legal puzzle, the original holder of the life interest will in part be passed on, too. In colloquial terms, the poet’s spirit survives; in the legal context, and according to the play of forms that make up English possession, the possessor is passed on to the next possessor precisely in the form of possessor. It is in this sense, indeed, that the young man can be imagined as ‘contented’ upon coming into possession: holding a poetic line, like holding a future interest, is a waiting that ends when one content is filled out by another, as when someone with an only future interest takes possession, becomes possessor, or when the poem’s beloved reader is filled by the poet’s form (or, equally, when the general reader is filled by the extravagant beauty that, elsewhere in the sequence, is the poem’s chief content). In sum, Shakespeare’s lyric pursues the legal fantasy of an affective attachment’s becoming continuous in time. Sonnet 87, in turn, responds to that fantasy by meditating on strangeness as a category that disrupts possession’s intimacies: Farewell, thou art too dear for my possessing, And like enough thou know’st thy estimate. The charter of thy worth gives thee releasing: My bonds in thee are all determinate. For how do I hold thee but by thy granting, And for that riches where is my deserving? The cause of this fair gift in me is wanting, And so my patent back again is swerving. Thyself thou gav’st, thy own worth then not knowing, Or me to whom thou gav’st it, else mistaking; So thy great gift, upon misprision growing, Comes home again, on better judgement making. Thus have I had thee as a dream doth flatter: In sleep a king, but waking no such matter.

30 31

Simpson, n 13 above, at 215. Ibid.

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The legal scene the poem represents is that of a conveyance, whereby the speaker has come to ‘hold’ the beloved, as a tenant holds land, according to a ‘grant’ and ‘gift’, the force of which gift is exposed as legally inefficacious for the lack of a justifying ‘cause’ in the beneficiary. As a consequence of this lack, the gift ‘swerves’ back to the donor or grantor; and the speaker comes to understand that he was never possessed substantially of the beloved’s gift of himself, but only illusorily so. What legal context makes sense of this account of the young man’s mistake in so conveying himself to the speaker, such that the gift of himself must, as it were, always be reverting back to him? Particularly suggestive here is the idea of ‘cause’ as the legal quantity whose presence makes good the intended conveyance of possession. The word is continuous with ‘consideration’. That term is most familiar from the law of contract (and the action of assumpsit, in which the plaintiff claimed that the defendant undertook (Lat Assumere) to do something he then failed to do) as the reasons motivating the promise and so determining the validity of the contract.32 But the sonnet’s focus on legal possession of land points us in a different direction. As Simpson explains, the doctrine of consideration was prominent, before its emergence in assumpsit, in the sphere of land law, where it underwrote legal transfer of the use, an early form of beneficiary ownership that was the dominant way to hold land in early modern England and, spectacularly across the Tudor century, to manipulate its transfer.33 At its most basic, the use involved the following scheme: the person seised (or possessed) conveyed his fee, his heritable interest, to another to hold for the grantor or a third party. Accordingly, the one to whom the fee was conveyed (the one ‘enfeoffed’) became bound in conscience to stand ‘seised to the use of ’ the other, that is, to hold the land for the other’s benefit. Landholders were eager to shift the fee away from themselves in order to avoid the various feudal incidents that attached to particular kinds of tenure, but chiefly as a way around the inflexibility of common law inheritance, since it was possible to devise a use by will, even though it was not possible by will to pass legal possession, which could pass only according to the inflexible canons of descent. Another advantage of the use was that it enabled the efficient transfer of ownership without a formal conveyance of seisin (or common law possession). Simpson explains, for example, that because it was unconscionable for a vendor to hold the benefit of land after receiving money for it, the courts held that the bargain and sale of land raised and passed an ‘implied’ use in the purchaser. Crucially, after passage of the 1536 Statute of Uses, this passed use was, by force of the statute, instantly

32 AWB Simpson, A History of the Common Law of Contract: the Rise of the Action of Assumpsit (Oxford, Clarendon Press, 1975) 321, 329–32. On consideration in relation to the category of cause (causa) at canon law, see 375–488; also Baker, n 13 above, at 386–8. On assumpsit in relation to the theatrical representation of action, see Luke Wilson, Theaters of Intention: Drama and the Law in Early Modern England (Stanford, CA, Stanford University Press, 2000) 68–114. 33 Simpson, n 32 above, at 327–74.

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transmuted into full legal possession—the statute was said to execute the use— and seisin came to be vested in the purchaser, without the fuss of a common law conveyance.34 Good consideration or cause was essential, however, for a use so to pass (without conveyance of possession). A passage in Christopher St German’s Doctor and Student takes up this point, in language I find suggestive for the dynamic whereby lovers grant to each other (as in Sonnet 87) the use of what they possess in themselves: DOCTOR: And what if a man, being seised of land in fee, grant to another of his mere motion, without bargain or recompense, that he from thenceforth shall be seised to the use of the other, is not that grant good. STUDENT: I suppose that it is not good, for as I take the law, a man cannot commence an use but by livery of seisin, or upon a bargain, or some other recompense.35

The student says that to be good the bare grant must be accompanied by formal [de]livery of the interest, or by good consideration as motive for the grant. Where consideration was lacking and the grant failed, the implied use was said to come back or to ‘result’—it jumped back—to the grantor who had tried to pass it.36 If in a bargain and sale, money was good consideration, it was also settled by the middle of the sixteenth century that where one simply agreed, or covenanted, to stand seised to another’s use, the covenant would pass the use (and therefore possession), so long as there were a consideration of marriage or of natural love, by which was meant love within a family, as between father and daughter or, as settled in Sharington v Strotton in 1565, between brothers.37 Love between friends, however, was no consideration, these being mere strangers in the kin economy. This was explicitly held to be so for the law of assumpsit in Hunt v Bate (1568).38 For the law of uses, an equally clear expression of the point emerged in Sharington v Strotton. Andrew Boynton, himself childless, had attempted to pass possession of his land to his brother’s family, by covenanting ‘for himself and his heirs’ that he should stand seised to his own use for life and, after his death, to the use of his brother Edward and Agnes his wife.39 In the matter of whether such an agreement could effectively pass the implied use, counsel for the defendants successfully argued that brothers were not mere strangers, and that brotherly love, as belonging to nature, must count as sufficient 34

Ibid 346–8; also Baker, n 13 above, at 287. Cited, in modern spelling, from Christopher St German, Doctor and Student, Selden Society 91 (TFT Plucknett and JL Barton (eds), London, Selden Society, 1974) 225. 36 Simpson, n 13 above, at 177; Baker, n 13 above, at 287. 37 Simpson, n 32 above, at 363–7. Simpson notes the connection between ‘consideration’ in such conveyances and the notion that marriage ‘could count as a cause of a gift’, as exemplified in the writ Causa Matrimonii Praelocuti (364). 38 Simpson, n 32 above, at 434. 39 Plowden, n 15 above, vol 1, at 300. 35

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consideration.40 This argument did nothing, however, to dislodge the argument against friendship (with which plaintiff ’s counsel unsuccessfully attempted to associate brotherliness): For if a man grants to J[ohn] S[tyles] that in consideration of his long acquaintance, or of his great familiarity with him [graunde familiaritie ove lui], or of their being scholars together in their youth, or upon such like considerations, he will stand seized of his land to his use, this will not change the use, for such considerations are not looked upon in the law as worthy [digne] to raise a use, because they don’t import any value or recompence [ne sount de value, ou recompence].41

If, in the court’s reasoning, brothers were more than friends, all agreed that friendship itself was without standing.42 Here is the connection I find to the melancholy of Sonnet 87, in which the beloved has attempted to pass possession of himself, and to the sequence’s melancholy generally about the erotics of male friendship. As I read it, Shakespeare’s poem rationalises, and laments, the failure of the speaker’s relation to the beloved as a consequence of the formal impossibility of constituting this particular relation. One thing to notice is the effect of the gerundives—this is one of two sonnets so dominated by the feminine ending—which make the time of the poem a continuous and extended present, in which the gift is failing, for lack of cause, from the moment it is attempted, such that the instance of erotic possession implied by the farewell turns out, in the couplet, never to have been substantial at all: ‘Thus have I had thee as a dream doth flatter: / In sleep a king, but waking no such matter’. The poem thus stages as law the obverse of the heavy futurity that in Shakespeare makes affect substantial by giving it force both from and for the future. The poem registers instead the immutable presentness of a particular relational scene, a failed bargain with time that is the poem’s failure, too, to find the formula to transmute use into possession. Given the poem’s legal metaphorisation of the erotic field, I want to note how the legal language cited from St German already impinges on the erotic, through a slippage internal to the common law formulae themselves, according to which one in possession can be said either to be ‘seised of land’ or just ‘seised’. For in this latter phrasing, the object of possession is as though absorbed into the subject’s reflexive relation to possession. And this is a relation that Sonnet 87 effectively unfolds as a person’s seisin in himself. Responding to a dynamic subtending the law, we can thus punningly and seriously cast the sonnet’s argument in St

40

Ibid 306. Brothers are said to be ‘per nature ioyne en amour’. Ibid 302. I have adapted the 1816 translation. 42 On law’s ambivalent relation to friendship, see Peter Goodrich, ‘Lawful Manhood and Other Juristic Performances’ in Erica Sheen and Lorna Hutson (eds), Literature, Politics and Law in Renaissance England (Houndmills, Palgrave, 2005) 23–49. On love’s standing, see Peter Goodrich, ‘Does Love Have Standing’ in The Laws of Love: a Brief Historical and Practical Manual (Houndmills, Palgrave, 2006) 195–216. 41

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German’s way: where one who is seised of himself grants to another, of his mere motion, that he shall stand seised to the use of that other, the poem discovers, for lack of natural affection, a further conspicuous lack. This is not the inevitability of loss that, conventionally, makes lovers melancholic, since that would imply a moment of having, which the poem disavows. Rather, it is the absence, in the grant’s swerving back, of the whole temporality that might allow a stranger’s love, and a stranger’s ‘great gift’, to be like a brother’s or husband’s, and so have present force for its own future.

SHYLOCK’S COUPLET In general terms, we can say that the law makes good on one version of kinship by exiling the stranger’s love from the place of law. So I conclude by returning from the substantial affect through which the future was controlled in land law to the more general proposition and other strange love with which I opened. ‘I crave the law’, Shylock says. Or rather, he urges it. The thought that legal subjection might be a formal object of desire deliberately puts affect into law as a force to be acknowledged there. As such, his craving doubly opposes the legalities of his enemies. For in terms of the appetitive form that Shylock invents as a legal ground also for him—‘I crave the law’—the logic that allows Portia to recommend mercy as an extra-legal force supplementary to law turns out to be only the obverse side of the other logic that, moments later, allows her to take contractual language to its extreme and so perfect judicial rigor against the supposed formalist himself: ‘Tarry a little; there is something else. / This bond doth give thee here no jot of blood’. (4.1.302–3) The disruptive thought in Shylock’s sentence is that the affective attachment to law as a recognisable object both gives law its normative force and exposes the norm to the destabilising force of all the law’s desiring subjects: ‘I crave the law’. As an engine against Antonio, whose own hatred for the Jew is bound into the codes that place Shylock outside the state to which he also belongs, Shylock’s craving insists that his desire must have standing, too. And Portia excludes that possibility by legitimising affect as only an extra-legal quantity, and then by overturning the desiring attachment to legal form, to law qua law, as naive illusion. In the failure of Shylock’s desire to gain standing, we approximate the equally melancholic dynamic of the sonnets, in which, as we have seen, erotic exchange is understood according to a language of cause that requires some gifts to fail as involving a love that, recoded for law, is in effect other than itself. As a legal matter, indeed, the melancholy of the sonnets—that feeling in the speaker’s farewell that the matter and substance with which one might be ‘contented’ (74.1) was in this case only a dream (87.13–14)—finds apt expression in Shylock’s own terrible leave-taking, and in his surrender there to the play of categories against themselves and against him. His is an abject surrender and parting. It is

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also eloquent because, in Shakespeare’s formulation, Shylock’s defeat becomes his body’s decorous fitting of a second fleshed affect to a first one, in the nauseated acknowledgment of a present state that is the instituted and ongoing failure of the appetitive craving the law has also instituted. ‘I am content’, he tells his judges; ‘I am not well’. (4.1.389, 392) Which is to say that, yes, he has been filled by something, just not law’s promise.

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7 The Tragedy of Law in Shakespearean Romance KATRIN TRÜSTEDT*

HE DIFFICULTY OF categorising Shakespeare’s late plays is well known. Grouping Cymbeline, The Winter’s Tale and The Tempest (together with Pericles) under the term ‘romance’ presumes that they share several elements in common: such ‘romance motifs’ as ‘shipwreck … pastoral interludes … and final reunions’,1 to name but a few. What is unique about these plays, however, is the way in which these conventions of romance are deployed. Coming after the tragedies in Shakespeare’s oeuvre, the romances once again take up the tragic setting: this time not to overcome it, however, but instead to turn it towards a specific kind of comedy.

FROM THE TRAGEDY OF VIOLENCE TO THE COMEDY OF LAW There exists in philosophy a tradition of thinking about the movement from tragedy to comedy, perhaps most notably in the work of Hegel, that is illuminating with regard to Shakespeare’s romances. This movement is often linked to the development of modernity, the process of secularisation, the disenchantment of culture, and the formation of modern subjectivity. One way of thinking this movement is as a shift from violence (ie, justice as revenge) to law. Aeschylus’

*

An earlier version of this paper appeared at (2007) 1(2) Law and Humanities 167. Michael O’Connell, ‘The Experiment of Romance’ in Alexander Leggatt, The Cambridge Companion to Shakespearean Comedy (Cambridge, Cambridge University Press. 2002) 215–16. 1

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Oresteia, one of ‘Hegel’s paradigms of tragic drama’2 can be considered a pre-eminent example of such a movement, which also not incidentally corresponds to a shift of genre. While the first two parts of the Oresteia follow a pattern of violence and revenge, the third part turns away from the bloodshed of the first two plays and replaces vengeance with a trial. The situation before the trial is that of a confrontation between two opposing and equally legitimate claims, which makes the play a tragedy in its form. Orestes has killed his mother, Clytemnestra, in revenge for killing Agamemnon, her husband and his father, who himself had initially sacrificed their daughter Iphigenia before sailing to Troy. Clytemnestra’s ghost, together with the Furies, now demand Orestes’ death in retaliation for the matricide. Together with Apollo, Orestes pleads to be spared, since he was obliged to revenge his father. For Hegel, this conflict represents a collision of two opposing ethical forces: on one side, the Furies, tied to fate and myth and a specific form of natural law, demand that the matricide be revenged; on the other side, Orestes and Apollo call for ‘justice’ and appeal to Athena to decide the conflict. The Introduction of the 2002 Cambridge Edition of the Oresteia describes the outcome of the decision in Aeschylus’s trilogy as the foundation of the polis through the establishment of law: ‘a mythic family’s internal conflicts … are resolved by god and men together, in Orestes’ jury-trial . . . Aeschylus offers this unprecedented means of resolution as a founding emblem of Athens’ moral and political ethos, the rule of communal law’.3 This description, which reflects the dominant interpretation of the final part of the Oresteia, has allowed the Oresteia to be read as a paradigmatic illustration of the move from the rule of myth and violence to the rule of law. In other words, Aeschylus offers a comic solution to the tragic collision of competing claims in the form of a trial. The ‘founding emblem of Athens’ moral and political ethos, the rule of communal law’ is an example of what Walter Benjamin calls ‘law-positing’ (‘Rechtsetzung’)4: the establishment of the polis, and thus of a political order—in this case, the political form of democracy. The triadic pattern of revenge killing in the Oresteia is redirected to a system of jurisprudence. Yet, is this ‘solution’ in fact sufficient? Is the tragic collision really resolved with the inauguration of law? It is the situation of competing and mutually exclusive claims that constitutes the tragic collision in the Oresteia in the first place. For the Furies, agents of a ‘natural order’, their claim cannot be met by law, as it were by definition. Thus, indeed, the installation of law does not appear just to everyone: ‘justice / which is harm to 2 Michael Silk, ‘Shakespeare and Greek Tragedy: Strange Relationship’ in Charles Martindale and AB Taylor (eds), Shakespeare and the Classics (Cambridge, Cambridge University Press, 2004) 244. 3 Christopher Collard, ‘Introduction’ in Aeschylus, Oresteia (Christopher Collard (ed), Oxford, Oxford University Press, 2002) xvi. 4 Walter Benjamin, ‘Zur Kritik der Gewalt’ in R Tiedemann and H Schweppenhäuser with Th W Adorno and G Scholem (eds), Gesammelte Schriften (Frankfurt am Maine, Suhrkamp, 1977) vol II(1), 179–203.

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justice’ (Eum 491, 92) comments the chorus regarding the outcome of the trial. The female claim in Argos remains open; neither the sacrifice of Iphigenia, nor the killing of Clytemnestra, nor the murder of Cassandra, are ever resolved.5 One might well anticipate, then, that the newly founded law will continue to be haunted by the repressed claims of the Furies. Athena’s attempt to resolve the tragic collision by means of the trial, as well as her personal intervention in favour of Orestes, can be read as act of a deus ex machina. Since this arbitrary act cannot itself be grounded in the law it installs, it introduces an element of violence into the foundation of community itself. It is only with Athena’s vote that the outcome of the jury trial is finally decided, and her decision is not lawful, but rather based on personal preference. In his reading of Benjamin and the ‘mystical foundations of authority’, Derrida has pointed to the inherent violence of any founding of law: ‘Since the origin of authority, and the founding or grounding of law, cannot by definition rest on anything but themselves, they are a violence without ground. They exceed the opposition between founded and unfounded’.6 In other words, the comic solution to this paradigmatic move from tragedy to comedy in the Oresteia offers a law that already rests on shaky ground. Shakespeare’s tragedies are often considered to be the modern counterpart to the tragedies of the Greeks. Hegel saw them as the ‘epitome of “modern” tragedy’,7 that together with the Greek dramas form two ‘peaks of tragedy, with all other versions looking back to one, or both, of these’.8 This equality of status that Hegel grants points to a potential analogy between the inner structure of both works. Most critics agree, however, that there is no direct reception of a Greek tragedy like the Oresteia from Shakespeare. The relationship must therefore be of a different kind than that of a direct adaptation. The reception would have to be an indirect one, by way of the Latin reception of Greek drama. The deep structure of the Greek tragedies would thus pertain to Shakespeare in the form of a mediated and essentially latent influence.9 The Eumenides, the final part of the Oresteia, has been described as a move from tragedy to comedy. The comic element of the play can be attributed to the mixing of genres, and in fact, ‘[i]n recent decades, [it has] been shown that Aeschylus’ Oresteia itself displays some features that, in one sense or another, might be regarded as “comic”’.10 Such a mixture of styles is common to all of Shakespeare’s plays. What makes Aeschylus’s Oresteia special in this context, however, is that the comic resolution of the tragic patterns displayed in the first

5 Cf Froma I Zeitlin, Playing the Other: Gender and Society in Classical Greek Literature (Chicago, University of Chicago Press, 1995) 107–15. 6 J Derrida, ‘Force of Law’ in Acts of Religion (Gil Anidjar (trans and ed), London, Routledge, 2002) 242. 7 Silk, n 2 above, at 244. 8 Ibid 246. 9 Ibid 241. 10 Ibid 247.

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two parts of the trilogy is the installation of law. In order to find a parallel in Shakespeare which would correspond to this ancient form of the movement from tragedy to comedy, it is not sufficient to look at Shakespearean tragedy alone. One must instead turn to his later plays and the way in which they reflect the transition to a specific kind of comedy. When comparing the two forms of drama, the Greek and the Shakespearean, decisive points of difference should be noted. In the Oresteia, a tragedy of violence turns into a comedy of law. In Shakespeare’s modern drama, on the other hand, the tragedy is already a tragedy of law. Thus in the romances, as this chapter will elaborate, the already existing tragedy of law is transformed into a comedy of forgiveness. In Shakespeare’s work, the paradoxes of the role of law in the founding of community make up a part of the tragic setting from which his late plays begin, instead of the dark (and sometimes unacknowledged) side of the comic solution with which the Oresteia ends. When one examines Shakespeare’s romances thus, against the backdrop of the Oresteia, some related differences become apparent. One important shift concerns the role of ritual in the respective dramas. Whereas the Greek tragedy is thoroughly embedded within a context of religious ritual, in Shakespeare’s romances the rituality is primarily theatrical. Greek tragedy ‘befits its heroicmythological matrix’,11 whereas modern drama is usually regarded within a context of an increasing secularisation. The disenchanted theatre of Shakespeare’s time is thus seen as distancing itself from the ritual quality in which Greek theatre is grounded, ‘to which, certainly, there is no Elizabethan-Jacobean equivalent—masks, open amphitheatre, religious context’. In fact, however, the striking presence of rituality in Shakespeare’s plays, particularly his later works, hint at the possibility that the heroic-mythological matrix is not absent from his plays, but instead merely transposed and deployed according to a new function. Moreover, a tragedy of law implies a particular insecurity of the law. Just as the law offered by the Oresteia’s conclusion portends to be, Shakespeare’s law is a troubled one. The form of its insecurity, however, and the corresponding possible stabilisation is different from that in the Oresteia, since Shakespearean drama lacks a coherent religious context.12 Without a coherent religious context, to secure a precarious law appears unable to be by means of a religious framing or authority, but only by nature (which might nevertheless be implicitly laden with religious values): thus ‘an all-too-human, but simultaneously more-than-human, “nature” is made operative’.13 In this sense, in several of Shakespeare’s plays, the tragedy of law is also a tragedy of nature.

11 12 13

Ibid. Ibid. Ibid.

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THE TRAGEDY OF LAW In this way, the emergence of different forms of and discourses on natural law in Shakespeare’s time (and even more so later on, in Hobbes, Rousseau and others) could be described as a response to new forms of the destabilisation of law: ie, as attempts to legitimise, with the help of nature and the ‘natural’, a law that otherwise seems to be precarious.14 Such attempts are developed and exposed in their intricate structure in some of Shakespeare’s tragedies, which serve as background texts to the romances which will be the main objects of investigation here. King Lear, for example, strives for a way to base law and sovereign rule in nature: in the ties of blood, so to speak.15 The inscription of law in nature, as exemplified by King Lear’s attempt to legitimise sovereign power as ‘natural right’, leads, however, to crisis and, ultimately, to the suspension of law. But rather than demonstrating the grounding of law in nature, the play instead points to an ‘outlaw’ dimension of law internal to sovereignty itself. In Shakespeare’s indirect reception of Greek tragedy, it is the story of the foundation of Rome which comes closest to the Oresteia’s founding of the polis. Coriolanus, the play which directly precedes the romances, unfolds an aporetic structure of the founding of community. Whereas ‘in Julius Caesar [Shakespeare] reconfigures the assassination as “the foundational violence of the Roman empire”’,16 the violence of the establishment of law in Coriolanus might be less evident, but in a certain way even more unsettling in that it concerns the possibility of democracy. What the conclusion of the Oresteia presents as the shining solution—a constitutional state, a democratic system—is precisely what Coriolanus finds intolerable, thus causing a tragic chain of events instead of leading to a solution. In this way, the play questions the order of law in a specifically modern political sense: the order of a republican democratic community, founded on a social contract and oriented towards a condition of lawfulness. In an indirect but powerful way, the play treats the topos of law’s (and civilisation’s) overcoming of cannibalism, barbarism, ritual and revenge (which also links this play to the conclusion of the Oresteia); but here, this overcoming appears as merely illusory. What is demonstrated, rather, is Rome’s proximity as a lawful civilisation to its violent foundation, which continues to operate in the civilised state. The layer of the mythical, tied to violence and its ritual organisation, is exactly what the founding of law, as presented in Aeschylus’s Oresteia, tries to overcome.

14 See Costas Douzinas, ‘The Literature of Law’ in Daniela Carpi (ed), Shakespeare and the Law (Ravenna: Longo, 2003) 21. 15 For an extensive reading see Björn Quiring, Shakespeares Fluch (München, Wilhelm Fink, 2008). 16 Richard Wilson, Shakespeare in French Theory: King of Shadows (London/New York, Routledge, 2007) 180; the quote is from René Girard, A Theatre of Envy: William Shakespeare (New York, Oxford University Press, 1991).

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Yet in Coriolanus, the violent ritual and the element of myth (or theatricality) is irreducible to this very process of foundation. That is to say, the very act which is supposed to overcome the stage of mythical violence already partakes of the means and the structure of the mythical. The foundation itself remains mythical and violent, even if only in part. In this regard, as Stanley Cavell has pointed out, Coriolanus turns out to be a play of sacrifice; as it happens, of a failed sacrifice. And a feast-sacrifice, whether in Christian, pre-Christian, Nietzschean, or Freudian terms, is a matter of the founding and the preserving of a community. A community is thus identified as those who partake of the same body, of a common victim. This strikes Coriolanus as our being caught in a circle of mutual partaking, incorporating one another.17

In the end, the foundation of a lawful community rests on a common sort of cannibalism that is linked in an uncanny manner to the theatre as a place of rituality, and to what René Girard calls with regard to Julius Caesar ‘the “foundational violence” of theatre’.18 In Hobbes’ later description of the state of nature and its relation to established society, fictionality and theatrical representation play an important, if hidden, role. This can be detected in the fictional quality of the state of nature, in the myth of the Leviathan, and in the sovereign’s dependence on theatrical rituals for the maintenance of his sovereignty. But whereas Hobbes still tries to exclude these fictional or theatrical elements from the realm of the political, precisely because of their destabilising proximity, the relation of the foundation of community to magic, ritual and theatre, as the deferred successors to myth and religion, becomes apparent in Coriolanus, at the same time as it is revealed as precarious: [T]he play celebrates, or aspires to, the same fact as the ritual [eg, the Eucharist] does, say the condition of community . . . When the sharing of a sacrifice is held on religious ground, the ritual itself assures its effectiveness. When it is shifted to aesthetic ground, in a theater, there is no such preexisting assurance.19

Here Cavell describes the shift of ritual’s function from religion to theatre as leading to a new and unstable form of ‘ritual’. Shakespeare’s romances, written after Coriolanus, deploy this unstable form of rituality and theatricality in an even more decisive manner. As pastoral romances, they touch on myth and fictional conventions more overtly than the quasirealistic history plays, for example. Brian C Lockey argues that this is part of the reason why the genre of romance has generally not been taken seriously in terms 17 Stanley Cavell, Disowning Knowledge in Seven Plays of Shakespeare (updated edn, Cambridge, Cambridge University Press, 2004) 165. 18 Girard, n 16 above, at 210. 19 Cavell, n 17 above, at 168.

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of questions of law or politics. Lockey, in contrast, illustrates ‘how a form condemned for frivolity was able to accommodate the ethical and political issues of transnational justice and the laws of law’.20 Lockey uses Shakespeare’s Cymbeline to explain the tensions and paradoxes of the status of natural law in British history, although he largely restricts this aspect to its ideological function: ‘[S]imilar to Spenser’s Faerie Queene’, he writes, ‘Cymbeline explores the ethical justification for viewing conquest as an act that civilizes and reforms barbarous polities’.21 Nature and natural law play a significant role in the legitimisation of different kinds of sovereignty and aggression: ‘the romance genre provided a particularly suitable form not only for redefining the relation of common law to natural law in order to justify an aggressive stance, but also for radically rethinking the relation of the sovereign to the law, and ultimately for determining the defense of England from the threat of neighbouring countries and non-native legal systems’.22 However, even if nature might at times play a legitimating role in Shakespeare’s romances, the romances themselves exceed this ideological use. Lockey does not sufficiently consider the specific way in which the conventions of the romance are deployed in Shakespeare’s late plays. In particular, he fails to consider the explicit rituality and theatricality functioning within the plays, as well as the way in which they undermine any simple legitimatising function the plays might otherwise serve. In The Tempest, for example, ritual and theatre play a prominent role in the presentation of Prospero’s magic. The Tempest, then, is closely linked to the tragedy of law that we have seen in Coriolanus, at the same time as the play moves to a specific kind of comedy, precisely by means of its theatricality.

MAGIC The Tempest begins with a state of emergency, or exception, that precedes the act of foundation or law-positing. The play starts at sea, rather than on a (national) territory, and it shows a shipwreck, disjointing norms (like social hierarchies) as well as the relation of nature and government, all within the title-giving event of change, the tempest: ‘[W]hat cares these roarers for the name of king?’—‘we split, we split!’(1.1.16–17; 60).23 The tempest, shown belatedly as being not a natural event but rather artificially staged, creates a zone of exception, an outside of normal time (Tempest refers to tempus) which persists throughout the play. It is within this state of exception that Prospero’s special kind of sovereignty is 20 Brian C Lockey, Law and Empire in English Renaissance Literature (Cambridge, Cambridge University Press, 2004) 7. 21 Ibid 161. 22 Ibid 159. 23 William Shakespeare, The Tempest, The Oxford Shakespeare (Stephen Orgel (ed), Oxford, Oxford University Press, 1998).

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established. Indeed, his control of the island corresponds, as Stephen Greenblatt has pointed out, to the installation of martial law.24 Prospero appears to respond to the political plot that precedes the action of the play (that is, his usurpation by his brother) by getting Antonio and his companions under his control. This situation is reminiscent of a revenge model, not least that of the Oresteia, but the play ultimately does not carry this model out. By maintaining the state of exception—scattering the stranded ‘visitors’ over the island and spreading confusion among them to a point where ‘men hang and drown / Their proper selves’ (3.3.59–60)—regular law is suspended. The primal usurpation scene, in which Prospero is described as having been weak (‘rapt in secret studies’ (1.2.77)) and consequently ‘preparing’ his brother’s eventual seizure of power, is replaced with a situation in which Prospero’s power allows him to be presented as the ideal sovereign. He now appears as the sovereign who (in the words of Carl Schmitt) not only decides the state of exception, but also creates and maintains it. Prospero establishes a kind of martial law as lawless law. His power is inscribed onto the life of the people subjected to him, as well as onto the nature that surrounds them, as seen in the opening storm. Schmitt, again, links the question of natural law to the question of sovereignty through the power to decide over the state of exception.25 But it is no military force that guarantees Prospero’s power; rather (to refer once again to Stephen Greenblatt) his own magic. In other words, the exact same source that had previously weakened Prospero as a sovereign, his ‘secret studies’, now functions as the source of his authority. And Prospero the prime duke, being so reputed In dignity, and for the liberal arts Without a parallel; those being all my study, The government I cast upon my brother, And to my state grew stranger, being transported And rapt in secret studies. (1.2.72–90)

Prospero replaces political power with magic. This substitution follows a logic that would reverse or invert an ostensible progression of disenchantment. Indeed, it corresponds to what Schmitt writes about the relation between the state of exception and magic or miracle, that is: ‘The exception in jurisprudence is analogous to the miracle in theology’.26 Prospero’s actions will ultimately correspond closely to this line of thinking as he propagates miracle in order to maintain the state of exception that reigns on the island.

24 Stephen Greenblatt, ‘Martial Law in the Land of Cockaigne’ in Shakespearean Negotiations: the Circulation of Social Energy in Renaissance England (Berkeley, University of California Press, 1988). 25 ‘[E]ven the seventeenth-century authors of natural law understood the question of sovereignty to mean the question of the decision on the exception’: Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab (trans), Cambridge, MA/London, MIT Press, 1985) 9. 26 Ibid 36.

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Similarly, in Shakespeare’s The Winter’s Tale, Leontes exclaims at the sight of his wife seemingly coming to life: ‘Oh she’s warm! / If this be magic, let it be an art, / Lawful as Eating’. (5.3.109–11) This famous passage of miracle relates law, nature and art in a peculiar way. The practice of eating, first of all, is claimed to be subject to law, or ‘lawful’. Such lawfulness appears to emphasise eating less as a social than as a natural action. Relating art (as something presumably magic) to a law grounded in biological function (the quasi-natural process of ingestion, in this case), is meant to legitimise the practices of art, in other words of magic: if these practices can be said to be as naturally lawful as eating, they cannot be questioned. The wish that the magic may be lawful as eating thus expresses the attempt to let miracle appear to be both lawful and natural. What is at stake in this scene is the ‘nature of law’, in both the sense of the essence, ie the character, of law, and the sense of the role that nature plays in law. Shakespeare’s romances specifically link the law and its functioning to a certain notion of magic, of miracle, of art and theatre. The final scene of The Winter’s Tale—its comic solution—is fundamentally theatrical. The performance of a coming-to-life drama that begins only once the curtains have been raised to reveal the scene exposes at once the elements of magic (the resurrection) and theatre (the staging of this resurrection). In this theatricalised form, the presentation of the simultaneous separation and contamination of nature and law is at work, exceeding Leontes’s attempt to stabilise it. The Tempest’s magic, understood as a form of Prospero’s sovereign power, sheds further light on the magic of The Winter’s Tale. Leontes’s attempt to ‘let magic be an art, lawful as eating’, can be seen as an analogue to the sovereign’s attempt to make the state of exception lawful. If this is indeed the case, Leontes’s wish is less innocent than it appears at first glance. To wish for magic to be a naturally lawful art would then correspond to the attempt to ground a state of exception in nature, and thereby to legitimise a violently posited order.

THE NATURE OF LAW The Tempest stages a complicated relation, indeed a contamination, between law and nature. It thus touches on certain implications of the ‘nature of law’.27 Whereas tragedies such as King Lear and histories such as Coriolanus expose the aporias of founding law in nature (King Lear) or of overcoming nature by means of law (Coriolanus), the romances expose the inseparability and incompatibility of law and nature head-on. What is more, they try to envisage a way of negotiating, acknowledging and accepting this inseparability and incompatibility. 27 These implications touch upon recent debates about the question of life and politics, human and animal life, creature and sovereign—discourses that have been shaped by Michel Foucault, Giorgio Agamben, Eric Santner, and others.

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That is, instead of overcoming nature by means of law or grounding law in nature, these two elements are exposed and endured in their tension in the specific medium of a romantic setting that suspends nature and law alike. In the following pages, I would like to outline this specific form of dealing with the relation of nature and law. Questions of nature and natural law are generally crucial to the element of the pastoral which is an essential ingredient of any romance: ‘Pastoral romances often oppose the golden world of the pastoral to the heroism of chivalry’. They imply the ‘axis of an opposition between the country and the city, as well as related oppositions between nature and art … In other words, the pastoral is “about” nature but also “about” the question of how nature is enclosed, represented, and defined’.28 Compared to the other romances, however, The Tempest is a special case of what McKeon has called the ‘macro-pastoral’: ‘The early modern period saw the pastoral expand from the domestic opposition between London and its countryside to the analogous opposition between England and its colonies, especially Ireland’.29 Situating the play within the context of the exploration and colonisation of the New World, critics have described the pastoral romance with its depictions of natural law as an attempt to legitimise the modernist project of imposing the British political and legal system on other cultures. It is clear that The Tempest raises certain questions that concern practices of colonisation. But it is also true that, in the majority of the various constellations of law and nature in The Tempest, more than just a justification of imperialism is at work.

GONZALO’S PASTORAL UTOPIA The state of exception that corresponds to a suspension of law fosters and nurtures imaginations about the founding of a community that could follow it. Stranded on a seemingly wild island, still in the grip of the destabilising storm, the ambivalent utopia of a natural community emerges for the people of the court of Milan as a natural state in the putatively total absence of law and civilisation: GONZALO: I’ th’ commonwealth I would by contraries Execute all things, for no kind of traffic Would I admit; no name of magistrate; Letters should not be known; riches, poverty, And use of service, none; contract, succession, Bourn, bound of land, tilth, vineyard, none; … 28 29

Lockey, n 20 above, at 37. Ibid 40.

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No occupation, all men idle, all, And women too, but innocent and pure; No sovereignty;– SEBASTIAN: Yet he would be king on’t. ANTONIO: The latter end of his commonwealth forgets the beginning. (2.1.141–54)

The utopia described in this passage can be read both as the logical result of and a defence against the state of exception: the fictional establishment of a new lawless law. On first sight this utopia seems to consist of a natural condition, one that is far from either Hobbes’s or Coriolanus’s conception of nature as evil.30 It more closely resembles Montaigne’s ‘jusnaturalistic’ view of nature in his essay ‘On Cannibals’: Montaigne’s essay … introduces an anticipation of the ideal state of nature on which the philosophical foundation of the Enlightenment will rest . . . [T]he utopian state of natural innocence proposed here implies a natural primary rule capable of peace and happiness, with no constriction of law or social institutions . . . This is far away from Hobbes’ meaning of jusnaturalism.31

In the setting of the play itself, however, Gonzalo’s neglected sovereignty is far from being ‘with no constriction of law or social institutions’. Indeed, it recalls Prospero’s own domination of the island, even to the point of controlling his own daughter’s intimate life, which Prospero demands (or rather, governs) to be ‘innocent and pure’. Paradoxically, the putatively innocent form of nature requires a governing force that cannot be free of violence. Antonio, the Machiavellian and thus very modern villain of the play, points out the inherent contradiction in Gonzalo’s utopia. Gonzalo as fictional king responds to the state of exception, a lawless state that nevertheless depends on the law as its final source: the sovereign who decides upon this state. In his attempt to establish and preserve his utopia, and thus his sovereignty, Gonzalo depends on precisely that lawful power which his utopia excludes. His sovereignty is already inscribed upon the virgin look of nature. The double plot structure of the pastoral can be seen at work in this passage: the court people from the city project their utopias onto ‘country life’, ie, that which is stripped of everything that defines their ordinary life. In this way, the ‘nature’ of Gonzalo’s utopia is the result of a process of ‘putting the complex into 30 ‘These words [Gonzalo’s] depict an original state of imaginary natural rule, a deconstructed society such as Cade [in Henry VI] seems to aim at with violent means. The abolition of magistrates, legal practices, property, money, work, sovereignty is emphatically connected with a positive Nature and a primitive innocence, excluding the homo homini lupus of Hobbes’ Leviathan’: Guiseppina Restivo, ‘Law and Nature in Shakespeare’ in Daniela Carpi (ed), Shakespeare and the Law (Ravenna, Longo, 2003) 77. 31 Ibid 86.

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the simple’.32 This process could be described as what William Empson, in his Some Versions of Pastoral, calls the ‘Covert Pastoral’: ‘it uses a piece of pastoral machinery which is generally dignified into bad metaphysics’.33

THE MASQUE Gonzalo’s utopia longs for a nature prior to law and civilisation, prior even to agriculture. It is a different notion of nature that affects the logic of the play as a whole, however. The masque opens up an image of natural life that (unlike Gonzalo’s supposedly pastoral pre-lawful purity) does expose the signature of law in nature. The staged masque is a commemoration of the betrothal staged by Prospero, a celebration of nature and fertility. Yet it is also, in the goddess’s words, ‘A contract of true love to celebrate’ (4.1.84), demonstrating how law is inscribed into sexuality: ‘Some wanton charm upon this man and maid, / Whose vows are, that no bed-right shall be paid / Till Hymen’s torch be lighted’. (4.1.95–7) As Jonathan Bate comments: The land described in the masque is husbanded, not in a state of nature. It is under Ceres, patroness of agriculture . . . The language here is that of Ovid’s Ceres . . . It is because she presides over the period immediately after the Golden Age that Ceres also ‘first made lawes’ (Golding, v. 436, translating Ovid’s ‘prima dedit leges’). In the Golden Age, when there was no law and all things were held in common, there could be free love (Montaigne’s cannibals share their women without jealousy); in the Silver Age, love must be bounded within the laws of marriage.34

What is striking about this masque, however, is not only the intimate relation of nature and law. For the masque is above all a ritual, a theatrical spectacle that produces an artificial myth of nature without being stabilised by a coherent religious context. Bate further notes: ‘That sex must take place within marriage is standard Christian theology; here, in characteristically Renaissance fashion, it is smuggled into a pagan nature myth’(emphasis added).35 In the romances, the ‘nature of law’ can thus be recognised not only as a figure of the legitimisation of law by nature, but also as specifically artful product: the outcome of a process of artificially changing nature into law, religious ritual into artificial myth. Marriage serves here as a model for the transformation of natural force into law: ‘marriage is located as the art, the human invention, which changes nature, which gives birth to legitimacy, lawfulness’(emphasis added).36 32 33 34 35 36

William Empson, Some Versions of Pastoral (New York, New Directions, 1974) 53. Ibid 10. Jonathan Bate, Shakespeare and Ovid (Oxford, Oxford University Press, 1993) 257–8. Ibid 259. Cavell, n 17 above, at 217.

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It is in this sense that marriage also figures as an emblem for the creation of community. This is a common topos not only for a certain tradition of comedy (especially Old Comedy), but also for a certain tradition of thinking about law: ‘Milton, whose tract, published eight years before Hobbes’ Leviathan … makes the contract creating marriage an analogy of that creating society’.37 In Prospero’s plot, the master’s discourse, law is inscribed onto life in terms of sexuality, birth and love. At the same time, in this undecidable realm (was it love or sovereign power that created the sexual bond between Ferdinand and Miranda?), the promise of a new society in the form of a new generation emerges (which refers us to a genuinely comedic theme). The state of nature as a state free of law is here shown to be an illusion, just as the state of law as being free of the original violence of nature was shown to be deceptive in Coriolanus. Instead, nature and law are shown to be correlative notions. Thus, Shakespeare makes magic and art intervene as a third element granting the space for the interminable struggle of these inseparable and yet irreconcilable elements, ie, nature and law. What first appeared to be fixed elements—nature as a ‘given’, on the one hand, and on the other, law as stable contract—undergoes a simultaneous separation and contamination. The ‘nature myth’ of the masque exposes this process as part of Prospero’s magic. His art is not ‘lawful as eating’, but rather arbitrary, artificial and disruptive. Prospero calls the staging of his masque ‘some vanity of mine art’ (4.1.41), and cancels it like vanity with the words: ‘Well done, avoid. No more’. (4.1.141–2)

CREATURE CALIBAN A common reading of the history of Prospero and Caliban describes it as a pastoral project gone wrong. Caliban has resisted active projection in the form of ‘nurturing’ and revealed a kind of nature quite opposite to the one of Gonzalo’s vision. Prospero attempts to inscribe his power over Caliban’s ‘nature’ in terms of language and education (in other words, art), but, in doing so, in fact excludes him from the social contract: ‘a born devil, on whose nature / Nurture can never stick’. (4.1.188–9) What Prospero calls ‘nurture’ is, indeed, a manifestation of his own ability to exercise power. Thus, Prospero needs to wish that this civil education never sticks, and that it corresponds to Caliban’s ‘nature’ to be subjugated. He legitimises his rule over Caliban by referring to the latter’s ‘nature’ as a justification for his being subjected to the former’s control. Miracle and wonder, as the magical equivalents of the state of exception, constitute the realm of the creature Caliban, in more than one way. First, in the character of Caliban the effects of the state of exception are at their most explicit 37 Stanley Cavell, ‘The Conversation of Justice’ in Conditions Handsome and Unhandsome: the Constitution of Emersonian Perfectionism (Chicago, University of Chicago Press, 1988) 104.

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and visible. It is particularly within the character of Caliban that the splitting, separating and fractioning of nature and art, life and law, takes place. Caliban represents what is non-human within the realm of the human. Prospero describes him in the course of legitimising his claim for the island: Then was this island— Save for the son that she did litter here, A freckled whelp, hag-born—not honoured with A human shape. (1.2.281–5)

While Caliban is, on the one hand, part of the human species (except for him the island was not inhibited by humans), within this inclusion he is, on the other hand, excluded as being animal (‘freckled whelp’) and supernatural (‘hag-born’). Under Prospero’s rule, he also becomes a slave, another exclusion within an inclusion (ie, within the household). It is through the maintenance of these terms of natural/animal, supernatural and slave that Prospero manages throughout the play to avoid recognising Caliban as taking part in his own human nature: ‘Thou earth, thou … thou tortoise’ (1.2.314–16), ‘Thou poisonous slave, got by the devil himself ’. (1.2.319) In neglecting Caliban’s human nature and thus drawing the distinction between human and non-human, Prospero is, in Agamben’s terms, producing the human: he is ‘establishing a zone of indifference … within which … the articulation between human and animal, man and non-man, speaking being and living being, must take place’.38 Julia Lupton outlines the traces of the Creature that is being epitomised in Caliban by taking recourse to Christian mythology. She explicates the drama of exclusion and inclusion implied therein: In the epochs of Christian history, the creature lies before or outside the law . . . The floating world of The Tempest reaches back to the epoch of the Flood, ante legem, in which unredeemed Creation suffers a sea change on the road to law and grace. Like the Flood, the tempest creates a state of emergency in which primitive instincts emerge in a clarified form, leading to the reassertion of positive law and the reinclusion of the sovereign within its normative order.39 (emphasis added)

Lupton is concerned not just with the creatural status of Caliban, but even more, with a general included exclusion within the human. In this way, Prospero can also be seen, in his failure to recognise Caliban’s humanity, as neglecting his own creaturely life:

38 Giorgio Agamben. The Open: Man and Animal, Meridian Crossing Aesthetics Series (Kevin Attell (trans), Stanford, Stanford University Press, 2004) 37–8. 39 Julia Lupton, Citizen-Saints: Shakespeare and Political Theology (Chicago, University of Chicago Press, 2005) 172.

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By maintaining Caliban as creature, Shakespeare manages to isolate within the category of the human . . . a permanent state of emergency.40

The theme of monstrousness is made explicit in the play’s attention to Caliban’s bodily presence and its exposure to Prospero’s power. Prospero’s grip on Caliban and Caliban’s resistance to this control are inscribed upon the bodily life that functions as the site of this inscription: ‘they [Prospero’s spirits]’ll nor pinch, unless he [Prospero] bid ‘em … but / For every trifle are they set upon me’. (2.2.4–8) At the same time, however, Caliban’s vulnerability to magic and miracle in the sense of exception (the effects of Prospero’s power are ‘set upon’ his body), is also the site of miracle as a productive process beyond the intention of the sovereign. As Eric Santner describes in his book On Creaturely Life: [I]t is not the mere fact of being in a relation of subject to sovereign that generates creaturely ‘non-nature’, but the exposure to an ‘outlaw’ dimension of law internal to sovereign authority. The state of exception/emergency is that aspect of law that marks a threshold of undecidability proper to the functioning of law/sovereign authority: the ‘master’s discourse’ in the state of exception marks a sanctioned suspension of law, an outside of law included within the law. Creaturely life emerges precisely at such impossible thresholds.41

There is also a productive potential to this dynamic, then, when the Creature, itself the product of an ongoing creation, is able to wonder, as Caliban does when he describes the island’s sounds. It is true that in the course of the play’s notable mirroring, repeating and replacing, Caliban’s precarious subjectivity gives way to new potentialities. His status (as natural/animal, supernatural, slave) is echoed in the burlesque pseudo-usurpation scene of Acts 2 and 3: Caliban is called throughout as ‘moon-calf ’, ‘Servant monster’, etc. In this comical scene, the only part of the play that actually escapes Prospero’s control, the precarious creatureliness of Caliban spreads to Stephano and Trinculo. The division between man, creature and animal, as well as that between individuals, becomes blurred: ‘Four legs and two voices; a most delicate monster!’(2.2.85–6) states Stephano, temporarily thinking that Caliban and Trinculo are one creature. Caliban calls Trinculo a ‘jesting monkey’, and Stephano threatens Trinculo with making him a ‘stockfish’, which has up to now been Caliban’s trademark. Something similar can be glimpsed in The Winter’s Tale’s burlesque and pastoral equivalent of The Tempest’s conspiracy parody: in the eating of Antigonus by the bear, in a tempest. The Creaturely is not a realm of pre-lawful innocence or non-violence:42 it is in fact explicitly marked by law and violence. However, the Creaturely does not fall prey to law and violence completely. It also produces a certain remainder in the form 40

Ibid 178. Eric Santner, On Creaturely Life (Chicago, University of Chicago Press, 2006) 29. 42 For example, the formative effect of sovereign biopolitics on this creature becomes evident in Caliban’s attempt to rape Miranda. 41

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of play and wonder, in the sense of an unexpected momentum beyond a law which would be either legitimised by nature or instituted against it. In the main plot of The Tempest, the moment which corresponds to this element of free play beyond law and nature would be Prospero’s final acknowledgement of Caliban, and thus, perhaps, of his own creaturely being. Prospero’s words, ‘this thing of darkness I / Acknowledge mine’(5.1.275–6), is also part of the play’s special comic solution.

THE COMEDY OF FORGIVENESS The Tempest’s own counterpart to the conclusion of the Oresteia is the final act of mercy and forgiveness enacted by Prospero, in connection with the renunciation of his magic powers. It is a comic solution of a very different nature from that of the Oresteia, however, and one which remains ambiguous. Having gathered all those who have wronged him, a situation not unlike the end of the Oresteia emerges, and thus the same question: violence or law? But Prospero’s act of forgiveness replaces both terms of the choice the Oresteia presents: it is neither a trial (being lawful), nor an execution (unlawfully taking violent revenge). Critics have correctly described Prospero’s actions in this scene as serving in fact to maintain and even augment his power, at least with regard to his brother.43 In the very same lines in which Prospero grants his forgiveness he also reclaims his power and his sovereignty: I do forgive Thy rankest fault—all of them—and require My dukedom of thee, which perforce I know Thou must restore. (5.1.131–4)

The same logic can be seen in Prospero’s claim to renounce his magic powers. This claim is also the undoing of his earlier renunciation of his political power in Milan and his turn to the exercise of magic which forms the original premise of the play. ‘The rarer action is / In virtue than in vengeance’. (5.1.27–8) The ability to pardon can be seen as the sign of the true sovereign: Machiavelli, for one, praises the use of a certain amount of pardon as a ‘virtue’ of governing—the very term Prospero himself uses to describe his actions. On the other hand, however, this comic solution is also an attempt to interrupt the logic of the tragedy of law, a logic that it nevertheless does not attempt to overcome (in the face of the futility of such an endeavour). The scene of forgiveness in The Tempest can be understood (just as Shakespeare’s other romances can be read) as an attempt to deal with the tragedy of law, to face it as 43

See, exemplarily, Stephen Orgel, ‘Introduction’ in The Tempest, n 23 above.

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such and to open it for the moment in the act of suspending it. Certain critics have pointed to the failure of this act of forgiveness, citing as evidence Antonio’s refusal to repent. But this act of forgiveness could also be read as an act of real forgiveness44—not despite but because of Antonio’s silence—in that it escapes the logic of an exchange.45 Prospero’s forgiving does not claim to solve the tragic pattern (as in the Oresteia), thus repressing what is meant to be overcome. Indeed, the comic solution to the problems of law in The Tempest ‘goes nowhere’. The play does not move in a linear direction, it does not degenerate or progress, and ends rather where it began: Antonio shows no sign of penitence, and might well establish a conspiracy tomorrow, just as he did before. But for the moment, at least, in the face of the tragedy of law and in the expectation of a future that looks very much like the past, an unexpected sort of momentum can nevertheless be seen. Just like the Creature’s creative potential that lies behind the main plot and its evident intentions, the comic solution of forgiveness still bears the potential for something new.

44 For the deeper sense of this realness, compare the way in which Walter Benjamin speaks of a real state of exception, that is to be distinguished from the everyday state of exception which we live in (cf Walter Benjamin, ‘Über den Begriff der Geschichte’ in Tiedemann and Schweppenhäuser, n 4 above, vol I(2), 693–704, Thesis VIII. 45 Cf for this notion of forgiveness beyond exchange, see Jacques Derrida, On Cosmopolitanism and Forgiveness (M Dooley and M Hughes (trans), London/New York, Routledge, 2001).

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8 Law and its Subversion in Romeo and Juliet DANIELA CARPI

S WITH MANY Elizabethan works, Romeo and Juliet displays strongly ambiguous elements, which indicate an ongoing shift from the medieval period to the modern age. Even without giving the tragedy a distinctly new-historicist interpretation, it is possible to note how Shakespeare’s text, although embedded within the canonical structure of the love-drama, actually entails a subversive subtext which challenges the codes of power and law, and the administration of justice, particularly in reference to the problems of marriage. From the very beginning, a term appears in the words of the chorus, ‘mutiny’, which is related to the topic of justice and gradually acquires a markedly symbolic meaning. The incipit of a play often serves the purpose of providing the audience with a pathway of interpretation, stimulating the audience’s expectations by hinting at what is to come, and introducing some elements that will be developed later on. In this context, ‘mutiny’ refers to the renewal of ancient hatreds between the families, but it also takes on a broader significance, revealing a possible key to interpretation. The concept of ‘mutiny’ implies a sense of order and at the same time of its abolition, an awareness of the code of law and the decision to violate it. It reveals social discontent, which causes the emergence of a will to transgress; or it represents an insight into the ongoing social transformation that will unavoidably lead to predictable upheavals (the text emphasises the feeling of an adverse fate that will afflict the protagonists; see, for instance, the frequent allusions to announced deaths and to tragic development of events). In Romeo and Juliet, all action is pervaded with a sense of mutiny, in a real palimpsest of subversions: the subjects disobey the Prince, the daughter her father, the cosmic order of night and day is subverted because of Romeo’s love pains, the character is dissociated from himself and abandons his name, and the

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harmonious balance of the body (the balancing of the senses) is destabilised by pathos. The whole social and physical organism is shaken by disruptive elements. First of all, the subjects contravene the Prince’s order to stop their inveterate blood feud and so the Prince accuses them of being ‘rebellious subjects, enemies to peace, / Profaners of the neighbour-stained steel’. (1.1.80)1 The Prince himself is aware of his subjects’ disregard for his orders, hence his very next words: ‘Will they not hear?’. He stresses the difficulty of making his citizens listen to him, any code of absolute authority is thwarted, and the next statement, ‘hear the sentence of your moved prince’, appears to be an attempt to redefine and resume an authority that is not recognised in actual fact. The figure of the Prince takes on sacred overtones of mercy and forgiveness, of love for his subjects and understanding for their human fallibility. These characteristics confer on him an almost metaphysical halo: he displays superior wisdom, the wisdom of the ideal governor, who knows the dangers of mutiny, and thus tries to keep his subjects within the rules of law by threatening exemplary punishments (‘If ever you disturb our streets again, / Your lives shall pay the forfeit of the peace’ (1.1.95–6)). Yet, at the same time, he immediately shifts from deterrence to indulgence (‘For this time, all the rest depart away’). A similar oscillation between menace and forgiveness, punishment and mercy manifests itself again when the Prince commutes Romeo’s death penalty to the penalty of exile. Hence, he appears to us like the ‘good Father’ who knows everything and suffers for his subjects’ mistakes, which he cannot and should not stop. Like a God who observes, immobile, the free unfolding of his subjects’ will, the Prince fears the consequences of the blood feud but hesitates to take drastic measures to counter it. In a utopian vision of an ideal democracy where everything is harmoniously shared, the attachment to authority should arise from free choice. The Prince thus embodies the art of good government (government as a form of art): the story he predicts is like a set stage where the moral drama of good government is enacted, whose issue lies in the limits that the good governor gives himself in interfering with his subjects’ private lives, or in forcing the will of individuals for the maintenance of order. The good government resembles a theatrical performance in that it implies a series of negotiations between society (synecdochically represented by the audience) and the governor/judge (symbolised by the actor). The coexistence and balancing of authority and freedom proceed from a series of intercessions that must be constantly renegotiated and adapted to the needs of society: ‘Shakespeare’s ideal magistrates were those which appreciated the aesthetics of government’.2

1 William Shakespeare, Romeo and Juliet (J Dover Wilson (ed), Cambridge, Cambridge University Press, 1971). All subsequent references will be to this text. 2 Ian Ward, ‘A Kingdom for a Stage, Princes to Act: Shakespeare and the Art of Government’ (1997) 8(2) Law and Critique 189.

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Iser has recently underlined that the art of good government used to imply a clever use of the theatre, for the early modern age was an age of the spectacle.3 For the governor, the support of his subjects was essential, and it is in this sense that the Prince has ‘godly characteristics’: such an alternation of authority and freedom is precisely the element that characterises Romeo and Juliet. Queen Elizabeth herself recognised that ‘We princes are set on stages in the sight and view of all the world’.4 There was an attempt to bring the art of good government to perfection, to balance authoritarian control and free will. It is precisely against the ‘aesthetics of good government’ that Machiavelli’s theories collided, and were thus misinterpreted in England. ‘The perfected art of government would describe a perfected harmony’.5 Here, the Prince takes on typical traits of the God of the New Testament: the good governor who foresees imminent catastrophe but cannot avoid it, because free will cannot be removed. The pact of kinship and community in ‘fair Verona’ is not reconfirmed by law, but by fate. It is a chain of tragic mistakes, the consequence of which is that ‘all are punished’. Hence, the pact is reconfirmed as a nostalgic regret for a harmony that could not be realised. The final restoration of hierarchy takes place more as a morality play than under the aegis of a recognised legal power. Once again, the ambiguity of the play is disclosed: it oscillates between the hope for a centralised form of human justice and a still archaic idea of nemesis. The control of social energy fluctuates between the code of law and a pagan and popular notion of fate. By acknowledging his failure, the Prince explicitly recognises that the way in which he exercised authority was wrong. In fact, the course of historical development has led to a stigmatisation of blood revenge and to a necessary limitation of personal freedom in favour of a more centralised conception of justice. Stability and innovation, conservation and renewal proceed together, for they are not mere historical processes, but diagrams of the human spirit. Hence the text displays a dialectic co-presence of conflicting legal canons, and the Prince embodies the figure of the good governor who tries to come to terms with a precarious sort of stability and reach the fairest form of government.6

3 Ibid. See Wolfgang Iser, Staging Politics: the Lasting Impact of Shakespeare’s Histories (New York, Columbia University Press, 1993); see Stephen Greenblatt, Shakespearean Negotiations: the Circulation of Social Energy in Renaissance England (Berkeley, University of California Press, 1988). 4 JE Neale, Elizabeth and her Parliaments, 1584–1601 (London, Cape, 1965) vol II, 119. Cited in Stephen Greenblatt’s chapter ‘Invisible Bullets’ in J Dollimore and A Sinfield (eds), Political Shakespeare: New Essays in Cultural Materialism (Manchester, Manchester University Press, 1985) 44 n 29. 5 Ward, n 2 above, at 192. 6 ‘Although the law’s ability to maintain order by peacefully resolving conflict is often seen as its most positive function, the critical legal-studies movement reminds us of the extent to which the rhetoric of law helps to maintain order at the price of disguising or denying the conflicts produced by the existing order, thereby helping to legitimate that order’: Brook Thomas, Cross-examinations of Law and Literature: Cooper, Hawthorne, Stowe, and Melville (Cambridge, Cambridge University Press, 1987) 4.

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The theoretical interaction of law and literature implies studying texts and language in order to disclose their ethical, political and cultural significance; it aims at discovering new possibilities, by analysing how law and literature are interrelated in terms of linguistic and cultural features. Hence, it seeks to investigate what happens when we disclose the hidden potentialities of canonical disciplines.7 Peter Brooks observes that: Tragedy is always the story of the discovery of the law—perhaps the Law—and in this manner it makes clear, maybe more than any other genre, that literature’s exploration of the individual’s destiny always encounters those systems of constraint, those basic interdictions, that both frustrate individual endeavors and constitute irrefutable elements of the definition of the human condition.8

The literary text also illustrates the way in which a culture reacts to the contradictions of its time. The word and figure of the Prince represent the Law (in the Saussurian sense of langue, of linguistic universal, of a code within a community), while the subjects’ private notion of law and justice represents the parole, that is, the individual’s missing identity, not taken into account by the text of the law. Thus, on the one hand, we have the text’s ‘code’, as supra partes and detached, an all-inclusive fabric we can refer to; on the other hand, we have the individual’s particular and concrete problems, which are distinctive in their individuality. In other words, a universal code is set against a particular one, a ‘text’ against its interpretation. The Prince himself is split between a notion of justice as fixed and universal, and one based on the acknowledgement that each case is different from another. He represents a centralised power, but at the same time he tries to accept the individual features of each of his subjects as juridical subjects; however, he is finally forced to repent his magnanimity and to regret his lack of authority, which would have saved many lives. The reign almost seems to assume the connotations of a capitalist-bourgeois society: the state has invested time and money in the creation of his subjects and the blood feud causes a waste of public money and ‘social energy’: And I, for winking at your discords too, / Have lost a brace of kinsmen: all are punished.9

Where power (the Prince) and justice are missing, the consequence is a general damage. As the restoration of order takes place under the sign of fate, instead of 7 See Gary Minda, ‘Law and Literature at Century’s End’ (1997) 9(2) Cardozo Studies in Law and Literature 245. 8 Peter Brooks and Paul Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (New Haven, Yale University Press, 1996) 15. 9 Romeo and Juliet, n 1 above, 5.3.294–5.

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following legal ways, the peace is ‘gloomy’ and full of ‘sorrow’: the conclusion is embedded in an aura of ‘Final Judgment’, where ‘Some shall be pardoned, and some shall be punished’ (but in the text it is also claimed that ‘all are punished’, as if to indicate semantic uncertainty even within metaphysical strictness). By recognising that the absolute values of heroism and religious faith were starting to be undermined, in modern society the law began to be considered as a means of control. However, law is nothing more than a relativistic method for shaping reality: what emerges is the protagonist as a man of law, trying to reorganise a reality that would otherwise be threatening. The failure of justice in this text presents tragic moments, not only because of the failure of the legal canon, but also because of the failure of man as a judge. The uncertainty of justice ceases to be formal and becomes dramatic: the insecurity of the Prince about the quality and measure of the punishment opens up the possibility of a tragic subversion. Finally, the legal context itself appears tragic: the impossibility of univocal interpretation of the law. The historical context has changed so much that it no longer requires an absolute power and almost leads towards anarchy. The Prince’s allusions to the difficulties in enforcing the law also raise a problem of juridical hermeneutics, which is essential for the use and application of the code to specific social cases. When absolute power has failed, the need for juridical interpretation arises and the code is relativised: the law is understood as a historical accident. The Prince himself expands the meaning of the law, he does or does not enforce it according to what he considers more appropriate in each situation: ‘the kind Prince / . . .hath rushed aside the law’ (3.3.27). The interpretation of the law is intended as a form at the service of the social good, and thus has a dogmatic function. For juridical hermeneutics, the power to bind every member of the juridical community in the same way is an essential feature of the law; where this does not happen, as in the absolute state, the governor’s will is free from the ties of law and there can be no hermeneutics. In this sense, the sovereign is both above and under the law: he is above the law (legibus solutus) insofar as he is the king by divine law, that is, legis conditor, but, at the same time, he must subject himself to the law he has established.10 On the contrary, at the dawn of democracy (to which Romeo and Juliet seems to allude, given the Prince’s concern about not forcing his subjects’ will, and letting them spontaneously accept the social pact), the idea of legal order implies the fact that the judge’s judgment cannot arise from his own inscrutable free will, but from a fair evaluation of the situation.11 The rules and procedures that derive from such evaluation liberate the attainment of justice from intersubjective influences: society no longer defines itself as a victim in search of revenge (in fact, in the text Mercutio represents a more archaic form of justice, which falls upon 10

See EH.Kantorowicz, The King’s Two Bodies (Princeton, Princeton University Press, 1957). See J Rawls, A Theory of Justice (Cambridge, MA, Harvard University Press, 1971); HG Gadamer, Truth and Method (London, Sheed and Ward, 1975). 11

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the survivor as a tie of honour); instead, each transgression becomes an occasion for recalling the official and codified values. Mercutio represents a medieval-like ethics of resentment, while the Prince and Romeo (in his uncertainty about what behaviour would be best) embody an institutional kind of punishment. The individual must limit his/her resentment so that a more general good may arise. Such a fluctuation between democracy and absolutism, between justice and its interpretation, is also evident in the treatment of marriage pacts. Subverting the blind submission of the daughter to her father’s will and going against familiar canons, Juliet’s free choice represents the other essential form of mutiny embedded within the text. However, also in this case the work does not present a uniform development, for at the beginning Juliet’s father seems to accept his daughter’s will. In fact, he encourages Paris by telling him: ‘But woo her, gentle Paris, get her heart: / My will to her consent is but a part; / And she agreed, within her scope of choice / Lies my consent and fair according voice’. (1.2.17–21) Like the Prince, Capulet seems to refuse to exercise absolute power over his daughter, and to be willing to guarantee her the possibility of freely choosing whether to adhere to his decision or not. However, later on, Capulet refers to his ‘decree’ that has to be ‘delivered’ to Juliet, and the term ‘decree’ does not allow for any freedom of choice by Juliet; in fact, on Juliet’s opposition, Capulet curses her and threatens her with the direst punishments, referring in particular to the contemporary condition of women, who were totally subjected to paternal authority: hang, beg, starve, die in the streets, / For, by my soul, I’ll ne’er acknowledge thee, / Nor what is mine shall never do thee good. (3.5.193–5)

In the Renaissance, the family did not only provide for its members’ material needs, but also served as an important principle for determining the individual’s identity. The risk of a rebellion against this status quo is ‘de-creation’: the father rejects his daughter, and thus casts her to the margins of society, almost to the point that she is no longer a juridical subject, because she has been deprived of her legal rights. In fact, the family’s function derived both from the patriarchal structure and from its power to place its members in relevant social positions. Such a strict bond was the basis of a kind of collective identity. Consider, for example, how in blood feuds individuals are not perceived as single identities, but as members of the rival clan. The identity of the single individual is absorbed by the collective identity; in fact, the marriage is about an alliance between families, not between individuals: hence, it is a collective strategy that does not derive from a personal will.12 The Prince’s words echo the episode of the expulsion of Adam and Eve from Paradise. The sinners will lose the protection of God. In the relation between 12 Barbara B Diefendorf, ‘Family Culture, Renaissance Culture’ (1987) 40(4) Renaissance Quarterly 661, 669.

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father and daughter, the legal code translates the structure of absolute power into juridical terms, and thus represents a step backward with respect to the more modern form of justice embodied by the Prince. Therefore, Juliet’s struggle against patriarchy takes on titanic dimensions: it highlights the character’s force of mind, but also her impotence, and the uneven relations of power. If the Prince shows ‘mercy’ towards Tybalt’s murderer, Capulet does not display any pity for Juliet, thereby highlighting once again that in the text he represents absolute power. ‘Is there no pity sitting in the clouds’, laments Juliet (3.5.196). But let us see the theme of the marriage pact from a legal point of view, that is, let us consider the contractual nature of the promise of marriage, according to which the contract had force of law. Classical Roman law attributed an almost exclusively social relevance to betrothals, following the principle of the freedom of marriage. In fact, still today, the free consent to marriage is an essential requirement for its validity. In the first century AD, to declare that one no longer wished to marry was sufficient to break the marriage pact. It was only from the fourth century AD onwards that the ‘sponsales’ began to acquire the contractual status that will characterise them for the following centuries, right up until the modern codifications. In fact, at that time, in order to confer a stronger value to the Christian engagement, the Imperial constitutions began to acknowledge several rights in those who were betrothed, also as far as their reciprocal rights were concerned. The unilateral dissolution of the promise of marriage was punished with monetary sanctions, unless dissolution was for reason defined as acceptable by the authorities. In this environment, restitution of gifts assumed a special value. In the later legislation of the Empire, the Christian engagement came to be identified more and more with the arrale one (from arra, the Greek word for ‘deposit’), an oriental tradition according to which the promise of marriage should go along with the giving of gifts on the part of the future husband (the gift was a kind of warranty for the maintenance of the pact). The tendency to equate the sponsalia to the marriage, both in terms of consensus and of the subsequent status, increased. Even the love pact between Romeo and Juliet is defined as a ‘contract’: ‘Although I joy in thee, / I have no joy of this contract tonight.’ (2.1.116) The party at the Capulets’ house certainly assumes the status of marriage negotiation, tantamount to a promise from Capulet that he will grant his daughter’s hand under an exchange based on dowry and gifts. Thus, Juliet’s refusal to marry Paris risks her exclusion from the right to succession and hereditary goods. The sponsalia were included in the dispute about the relation between consummation of the marriage and consent to it. In fact, canonists were debating whether the marriage as a contract could be concluded solo consensu or required the concrete element of the sexual union. This is the distinction between sponsalia de praesenti and sponsalia de futuro. The main characteristic which distinguished the two kinds of sponsalia was the unitas carnis. If, on the one hand, it was argued that consensus facit nuptias, on the other hand, there was also a will

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to distinguish the cases in which the marriage was real from those in which it had only been planned for the future, that is, a will to distinguish between actual marriage and promise of marriage.13 For centuries, the tradition of canonical right, and particularly the influence of Protestantism, has considered engagement as the most important aspect of marriage, degrading the latter to a mere completion of the former. Hence, the fiancé is for Shakespeare a ‘husband on pre-contract’ (Measure for Measure, 4.2.75),14 to the extent that the sponsalia could be delegated to a third party by power of attorney, as with any other contract.15 Romeo and Juliet highlights the ambiguity of these two kinds of legality within the marriage contract, since Juliet has already been promised to Paris by her father who organises the engagement party. In fact, what initially appears as a carnivalesque ‘feast’ later becomes a ‘solemnity’, a formal marriage proposal. Juliet’s promise to Romeo, and the subsequent consummation, raises the problem of which of the two is the real marriage. From a Christian perspective, the secret marriage is indeed privileged in the text. In fact, the marriage with Paris would cause the risk of bigamy. The dispute concerns the prevalence of the secular marriage over the religious one, or vice versa. Hence, on the one hand, there is the Church, willing to guarantee the free choice of the individual. On the other hand, there is the ambition of the families, who consider the arranged marriage to be an element of political and financial alliance. We are thus facing once again a clash between the private and the public spheres, between a private form of order and a social or public one. In the text, the marriage theme underlines precisely this conflict between two forms of order. The contrast is further emphasised by the fact that, at that time, women actually had the right of veto, which is by the way not respected in this case, given the numerous pressures and blackmailing forms applied to Juliet.16 In fact, the social relevance and the complexity of the marriage derive from its belonging so much to the institutional sphere as to that of uses or social representations. There is a

13 In the twelfth century, Pope Alexander acknowledged the distinction between verba de praesenti and verba de futuro, recognising that the latter could be transformed into a real marriage if they were followed by a sexual union. 14 This reference is to J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007). 15 Giacomo Oberto, La promessa di matrimonio fra passato e presente (Padova, Cedam, 1996) 77. See also M De Giorgio and Ch Klapisch-Zuber, Storia del matrimonio (Bari, Laterza, 1996). 16 See Max Horkheimer, ‘Authoritarianism and the Family Today’ in RN Anshen (ed), The Family: Its Function and Destiny (New York, Harper, 1959) 359 at 360: ‘the birth of modern civilization emancipated the bourgeois family rather than the individual per se and thus carried within itself a profound antagonism from the very beginning. The family remained essentially a feudal institution based on the principle of “blood” … Man, liberated from serfdom in alien households, became the master in his own. Children, however, for whom the world had been a penitentiary throughout the Middle Ages, continued to be slaves well into the nineteenth century. When the separation of state and society, of political and private life, was completed, direct personal dependence survived in the home’.

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shift from the ethical marriage based on canons of seriousness requested by Protestantism17 to the economic/secular marriage. The great pomp of the wedding exalted the symbolic role of the woman: it was her temporary apotheosis and her public triumph, which was then counteracted by future years of obedience and seclusion. (Let us think of The Taming of the Shrew, where one of the strategies for breaking Katharina’s resistance is precisely that of denying her the pomp of the ceremony.)18 The issue of ‘solemnity’ is also emphasised in the text: during the party at the Capulets’, Tybalt realises that a Montague has surreptitiously joined the party. This invasion is perceived by Tybalt as a violation of the solemnity of the celebration: ‘To scorn at our solemnity tonight’. (1.5.63) The sentence is repeated twice, thus underlining the subversion of a sacred and private ritual. It is precisely in this context that another of the many subversions of the text takes place: Tybalt wants to react to the affront, but Capulet, the pater familias, stops him. Between the two, a mental warfare starts that carries with it the germs of sedition. In his impulsiveness, Tybalt does not want to submit himself to the order of the pater familias: ‘I’ll not endure him’. (1.5.76–7) Tybalt does not want to listen to Capulet, who thus must once again impose his will in an absolutistic way: Am I the master here or you? Go to, / You’ll not endure him? God shall mend my soul! / You’ll make a mutiny among my guests.

These words were preceded by milder warnings: Content thee, gentle coz, let him alone, / ‘A bears him like a portly gentleman. (1.5.74–5)

Capulet moves from the name of ‘gentle coz’ to that of ‘goodman boy’, then to ‘cock -a-hoop’, ‘saucy boy’ and ‘princox’. The shift is from gentle pleading to direct insult: ‘Now, by the stock and honour of my kin, / To strike him dead I hold it not a sin’. (1.5.58–9) However, even at this point the adhesion to a principle of authority is not the result of a free choice; there is no implicit acceptance of an ‘imperium’, that is, of an indisputable and recognised authority. The germ of mutiny is present in this scene as well, so that the governor (the pater familias) has to impose his will in an

17 ‘This shift of emphasis towards the nuclear family was given powerful support by Reformation theology and practice. The medieval Catholic ideal of chastity … was replaced by the ideal of the conjugal affection. The married state now became the ethical norm for the virtuous Christian’. Lawrence Stone, The Family, Sex and Marriage in England 1500–1800 (London, Weidenfeld and Nicolson, 1978) 135. 18 In Act 3 scene 2, Petruchio arrives at church without the appropriate clothing and proceeds to deny his wife the wedding breakfast, the first night of marriage and all the rest of the traditional paraphernalia.

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authoritarian way, if he wants to maintain order. An archaic concept of honour counters hierarchy, but finally succumbs to it. This is precisely the kind of absolute authority on whose implementation the Prince hesitates throughout the entire dramatic action. In a commercial era, such as the Renaissance, during which the mercantile class is in the ascendant, wealth is largely constituted by obligations of an economic, social or prestigious kind. Hence, the individual interest, aimed at the attainment of some promised advantages, has to be protected. The social interest in the stability of pacts becomes of primary importance. In Romeo and Juliet, there is also another contraposition: that between a private pact (based on a Roman kind of civil law, which recognises full juridical results to the agreements made in order to produce an obligation, and which will later become the Anglo-Saxon common law) and the pact endorsed by the religious authority (sacramentum). It is a contraposition between juridical norms and canonical code. Hence, Juliet is bound by both pacts to different contracts, both of which are legally valid. The epochal passage, made evident by the forms of justice administration, is also revealed in the text by the coexistence between a ‘promise by parole’ (entirely dependent on the will of the contractor, since the law had erased the private exercise of one’s rights) and a ‘promise by deed’ (based on a contract and on a religious ceremony). Juliet is gripped in the vice of fidelity to two forms of contract, torn between an agreement stricto iure and one based on bona fide (which is the one to which she is forced by her father): Because canon law declared marriage a sacrament dependent only upon the consent of the man and woman to be wed, secret marriages—marriages without the presence of parents or other witnesses and even without priests—were legal.19

However, it must be acknowledged that English courts of law, while recognising the validity of clandestine marriages, also punished such unions. In seventeenth-century Anglo-American contract law, among the promises that were considered binding according to the common law, we can mention ‘a formal acknowledgement by bond under seal, often conditioned upon performance of a promise for which it was a security’, and ‘a simple promise upon consideration, that is, in exchange for an act or for another promise’.20 In the first case, we are immediately brought to think about Shylock’s contract in The Merchant of Venice, while the second case can be applied to Romeo and Juliet, to the twofold promise of marriage. These theories based on the contract were followed by seventeenth-century lawyer Hugo Grotius’s theory of moral force, based on the ethical meaning of the

19

Diefendorf, n 12 above, at 661–81. Roscoe Pound, An Introduction to the Philosophy of Law (New Haven, Yale University Press, 1959 [1954]) 145. 20

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promise. Hence, the validity of marriage came to be based on the contractors’ free will, an element which was definitely not present in the pact between Juliet and Paris. Once again, the text incorporates two completely different approaches: the father’s absolute authority, and the daughter’s free will. According to the medieval canons, the latter was an element of sedition, but in the modern authorities it is an inalienable right.21 The law, however, is constituted by a constant dialectic between contrasting situations, which mirror the relation between spirit and nature. According to Roscoe Pound, law must be stable but cannot stand still. As far as the legal reality is concerned, there is a need to piece together and to overcome the antinomy between the stability of law, seen as society’s rational, firm and fixed order, and its dynamism, mirroring the incessant transformations of needs, of collective and individual interests, of moral requirements and political problems.22 The law, while fulfilling the social need for stability, must also come to terms with the constantly changing requirements of society. Such elements are perfectly noticeable in Romeo and Juliet. If, on the one hand, the medieval concept of private revenge is still present, on the other hand, its results and historical tranformations are questioned. This questioning reveals a conception of law as opus operans rather than opus operatum. The criteria of marriage pacts are placed in the context of an incessant historical development. They are presented as a process in fieri, as a transformation which is still taking place and which reflects an epochal evolution. Within the text, the two fundamental elements of separation and subversion (the subjects against their Prince, the daughter against her father) are echoed by a growing proliferation of interior signs of mutiny: see, for example, the word play between the terms ‘word’ and ‘name’ at the start of Act 2. ‘O Romeo, Romeo! Wherefore art thou Romeo? / Deny thy father and refuse thy name’. Romeo must ‘kill’ his old identity and ‘give birth’ to another one in this new communion. Hence, he must separate himself from himself by refusing his own name. Here, the concept of name seems to mirror the logos of the Bible: giving a name, or re-giving a name, means re-creating, shaping anew. After all, notes Juliet, it is only the name which is her enemy, not the essence of the individual. ‘‘Tis but thy name that is my enemy’ / . . . ‘What’s in a name?’. The name is merely the external cover of the object, which would still be the same 21 ‘[S]erious challenges were already developing to the traditional authority of husbands in the patriarchal family. Moreover, the … demand for the separation of religion from state control accelerated the process by which the divine sanctions for the social hierarchy were undermined. Once they were gone, the way was open, first for a contract theory of the state, and then, by logical analogy, for a contract theory of the family’: Stone, n. 17 above, at 340. According to Stone, the most important transformation of the family structure was the gradual freedom from paternal authority, which was made possible by the growing power of the central government. As the state and tribunals granted ever-increasing protection to wives and children, a relationship of subordination towards the husband and the father became increasingly unnecessary. 22 See Widar Cesarini Sforza, ‘Introduzione’ in Roscoe Pound, Introduzione alla filosofia del diritto (Firenze, Sansoni, 1963) xvii.

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under a different name (‘Thou art thyself ’). This is the arbitrariness of the sign with respect to the signified: Romeo and Juliet are enemies only by convention. Below this verbal duel, we can perceive a sliding of the two levels of the signifier and the signified, an impulse to go beyond the system of social conventions which have crystallised the situations in a certain way. The two beloved do not accept familial codifications: ‘Doff thy name’, because ‘thy name . . . is no part of thee’. The name is a mere convention, and the characters want to set their own reality against the one accepted by their families. The term ‘word’ is set against the term ‘name’. ‘Word’ is semantically more significant, it is related to the ritual, to the pact sanctioned by the promise. The word creates, and it signals a split between name and name which is more internalised even than the split between name and society. This dichotomy undermines the very essence of ‘word’. ‘I take thee at thy word’. If the name can be easily changed, the word cannot. ‘If that thy bent of love be honourable, / Thy purpose of marriage, send me word tomorrow, / By one that I procure to come to thee, / Where and what time thou wilt perform that rite’. (2.2.144–8) While the name can be destabilised, torn and subverted, the word is connected to sacredness, rituality and logos. It is a synonym for honour, for contract, for legal pact, which used to be based upon the given word and confirmed by a handshake. The name can be doffed, but the word is honourable, and will become a rite. ‘Name’ is subversive, while ‘word’ establishes a new canon. In this semantic context, we can also add that ‘word’ is related to the secret marriage, to the code and to the contract, while ‘name’ implies a freely chosen marriage, creating a new reality of emotions and free will. If the name can be changed, then the very reality of the marriage for interest or political alliance is changed, and the marriage becomes a profoundly affective, consensual and reciprocal reality. The pathos of feelings is presented as a disruptive element: think, for example, of how Romeo subverts day and night, blinded by his passion for Rosaline: Away from light steals home my heavy son, / And private in his chamber pens himself, / Shuts up his windows, locks fair daylight out, / And makes himself an artificial night. (1.1.136–40)

The shapes of objects are destabilised under the urgency of love: O heavy lightness, serious vanity, / Misshapen chaos of well-seeming forms. (1.1.178–9)

The whole universe seems out of joint: such is the transgressive power of love (‘Why, such is love’s transgression’). The cyclic sequence of day and night, of mind and body, is subverted by the pathos of love (the heart is prey to a ‘treacherous revolt’), which acts in the text as a framework of mutiny, intertwined with the other elements of subversion. The double nature of order and chaos, of obedience and sedition, is revealed as intrinsic to the very order of things, so that the flower itself is both healing and

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poisonous: ‘Within the infant rind of this weak flower / Poison hath residence, and medicine power’ (2.3.25–6). The Friar, in fact, describes the flower, bearer of the sleep of death, as apparently innocuous but inherently poisonous. Hence, there is a split within the senses themselves: taste and smell: For this, being smelt, with that part cheers each part; / Being tasted, stays all senses with the heart. / Two such opposed kings encamp them still / In man as well as herbs / Grace and rude will. (2.3.27–30)

The principle of mutiny has been more and more internalised, to the extent that it now undermines the very roots of human harmony. The individual is deprived of a univocal name (the split between word and name), as if split from sense to sense, in a condemnation of the uncritical obedience to the laws of nature. The right blend for living in society consists in balancing obedience and freedom. Freedom is the space left free from social bounds, and through the constant variation of the cultural order of society the line between the two shifts quickly. The imminent violation of the social code is indicated in the text by various images of rupture. These include the nephew who wants to impose his own conception of order at the party, the split between the human senses, the ‘distemperature’ that the Friar immediately detects in Romeo, who has not followed the rules of nature (he has not slept): Thou art uproused with some distemperature, / Or if not so, then here I hit it right, / Our Romeo hath not been in bed tonight. (3.2.40–3)

However, such social subversion may pave the way to a new harmony, a new pax: ‘I have been feasting with mine enemy’. (2.2.49) In this constant discomposure of the concept of law we risk losing its semantic connotation. Even Peter, the servant, who acts in the text as ‘comic relief ’, states: I warrant you I dare draw as soon as another man, if I see occasion in a good quarrel, and the law on my side. (2.4.153)

Here, he produces once again a ‘mise en abîme’ of the concept of law, because he employs an oxymoron. He claims he can transgress the law (by duelling) as long as this does not imply going against the law. The law becomes an exercise of weapons, a trivial and desecrating game, testifying to a carnivalesque dissolution of the concept of order and private revenge. The same kind of ambiguity underlies the scene where Lady Capulet addresses the Prince, asking for justice for Tybalt’s death: ‘I beg for justice, which thou, Prince, must give’. (3.1.179) However, shortly afterwards she promises Juliet a private revenge: ‘We will have vengeance for it, fear thou not: / . . .I’ll send to one in Mantua’ (3.5.87), highlighting the uncertainty that characterises the concept of law in the whole play. In fact, the administration of justice is often placed in the

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hands of a single group (an inheritance from medieval times), as we can see from Mercutio’s attitude, who curses the two families as he dies, because Romeo does not immediately revenge his death. On other occasions the administration of justice is urged by the governor, as in the case of the Prince’s requests to satisfy the victims. Finally, the administration of justice is sometimes seen in a theological sense as a longing for a golden age of universal harmony, where every dispute was conciliated in a superior brotherhood (Romeo who says he has been feasting with his enemy), universal harmony which is broken by a sin of disobedience (maybe a repetition of Edenic fall) and of mutiny. However, the very essence of the body politic has been damaged (the concept of the King’s two bodies, according to which the King has a spiritual body, the ‘body politic’, which is superior to the law, because it is a divine incarnation, and a physical body, the ‘body natural’, which is subject to the law). The Prince complains that the murders damage him, because they deprive him of his subjects, seen as the branches of a tree, whose trunk is constituted by the governor. In the breaches opened by these elements of sedition in the fabric of law, in the uncertainties about the administration of the law itself, is now situated the strong will of the governor: I shall be deaf to pleading and excuses . . . attend our will. (3.1.190–5)

In fact, the Prince is trying to mediate between a strong authoritarian form of government (the threats to the families in order to make them stop the feud) and the exercise of mercy (of which the commutation of Romeo’s death penalty into exile is an example), that is, a democratic form in which the will of the citizens is respected. The Prince’s exhortations are aimed at inviting his subjects to a responsible sort of obedience. His conception of the law and of government is thus an attempt to harmonise a coercive power with a computation of the resistances that set one interest against another, applying a real engineering in order to make the social engine work at its best. The concrete application of a norm always implies, to some extent, a ‘balancing of interests’: this was particularly true in the pre-modern era (including the English Renaissance), when the concept of the ‘state of right’ (a typical construction of the philosophy of law of Enlightenment and post- Enlightenment) had not yet been developed. Hence, it is clear how such a problem emerges with particular strength in an age of transition (the Shakespearean era is, in fact, an age of transition from the Middle Ages to the modern age). In such periods of transition, characterised by turbulent social and cultural transformations, the pure and simple application of norms is particularly problematic, especially if the norms have not been spontaneously acknowledged by the social body. In fact, in Romeo and Juliet, there are two different forms of adherence and obedience that create a juridical hiatus, because the authority does not have enough political power to impose the respect of the legal code that the authority itself has promulgated.

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It may happen that the law is no longer understood by the citizens, whose way of thinking has changed, or, vice versa, that the law, which is elaborated on a theoretical level, is too progressive for the subjects, who are still linked to ideas and values censured by the political class, but strongly rooted in the social body (think, for example, of the blood feud). From this point of view, continuous and incessant transformations of the social body make our age significantly analogous to the Renaissance. In both societies, loss of authentic ubi consistam forces an uneasy coexistence between norms. In our society it is the awkward coexistence of conservative adherence to a legal corpus of nineteenth-century origin and a normative ‘forward shift’ driven by public opinion but not universally (or normally) accepted by the polis. By acknowledging his failure, the Prince explicitly recognises that he has not been able to exercise his authority coherently, either in its coercive version (because he did not carry out the punishments in a rigid and inflexible way), or in his quest for consensus (because he is carried away by the events). The course of historical development has led, in fact, to a stigmatisation of blood revenge and to necessary restraint on personal freedom in favour of a centralised conception of justice.

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IV

Justice and the Royal Prerogative

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9 ‘The King is a Thing’: the King’s Prerogative and the Treasure of the Realm in Plowden’s Report of the Case of Mines and Shakespeare’s Hamlet CAROLYN SALE

INCE THE LATE eighteenth century, it has been regularly noted by scholars of Shakespeare and lawyers interested in Shakespeare’s use of law that the grave-digging Clown of Hamlet alludes to the judicial arguments in Hales v Petit (1562), a property suit involving a suicide, in his lines about water coming to a man and drowning him.1 Mid-twentieth century scholars also noted Hamlet’s allusion to the late sixteenth century’s most famous murder trial, Saunders’ Case (1575).2 Much of the debate around these allusions has centred on the question of whether we are to believe that Shakespeare, like a character in an early unattributed play of the 1590s, had ‘plodded in Plowden’ (and possibly spent some or all of his ‘lost years’ as a lawyer’s ‘clerk’) or whether the cases were sufficiently famous that Shakespeare could have known of them through street talk.3 My intention is not to answer the question of how the legal matter enters the play, but rather to show that Hamlet’s engagement with cases reported by Edmund Plowden in his seminal legal text The Commentaries (1571) is both more subtle and more thoroughgoing than attention to the allusions to Hales v Petit and Saunders’ Case alone may suggest. The play is infused with legal matter reported by Plowden, and in particular with the 1 See E Malone, The Plays and Poems of William Shakespeare in Ten Volumes (London, 1790), vol IX, 385. 2 See Times Literary Supplement, 30 June 1950, 412. 3 See P Corbin and D Sedge (eds), Thomas of Woodstock or Richard the Second, Part One (Manchester, Manchester University Press, 2002) 5.6.24–36.

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constellation of concerns that arise in a late 1560s case, the Queen v Northumberland. Plowden’s report crystallises these concerns into an important discursive artefact with which the play appears to engage as it takes up the task that its councillor figure shirks as one that would ‘waste night, day, and time’, that of ‘expostulat[ing] / What majesty should be’.4 Queen v Northumberland is about proprietary claims, in the sovereign’s name, in dirt (that substance with which Hamlet is obsessed), and the spectre that haunts this play is, at least in part, a legal spectre. Rehearsing the issues of a case that is the same age as its avenger at the time of the play’s composition in 1598/1599, the play remembers the past, as its Ghost adjures its avenger to do, in order to arm its constituency for future legal and political events. (The Ghost may be, Horatio notes, a harbinger of his ‘country’s fate / Which happily foreknowing may avoid’. (1.1.32–3)) By reconstituting the ways in which Shakespeare’s players, the ‘abstract and brief chronicles of the time’ (2.2.462–3), turned the act of legal remembering to which Plowden’s Commentaries is essential into theatrical action, we may make the play matter anew to the urgent political questions of our own historical moment: what is the relationship of the sovereign (no matter what form in which s/he may come) to the people s/he governs? And what is the relationship of both to the natural resources of the earth?

‘TO HER OWN PROPER USE’ The Queen v Northumberland or the Case of Mines was a suit brought in the Queen’s name by the Attorney General Gilbert Gerard against Thomas Percy, the seventh Earl of Northumberland, for ‘hinder[ing] and disturb[ing]’ the ‘searching and digging’ for ore in ‘certain waste or mountainous Lands called Newlands in the County of Cumberland’, which the Earl claimed as property gifted to him by letters patent from Philip and Mary in 1557.5 Despite the claims made in the Queen’s name that the exercise of the prerogative with the seizure of 600,000 tons of copper ore from the Earl of Northumberland’s freehold property was ancient and incontestable, the action represented a radical augmentation of the royal prerogative that infringed upon the subject’s ‘liberties’ under common law. According to Thomas Fanshaw, the Earl’s attorney, the Queen could not, ‘by reason of her Prerogative royal’, seize the copper at Newlands ‘to her own proper Use’, because the Treatise of the King’s Prerogative, a compilation of statutes pertaining to the royal prerogative freshly available in print in 1567, did not permit her to dig in ‘the Freehold and Inheritance of another’.6 The controversy 4 W Shakespeare, Hamlet (London, Arden, 2006) 2.2.86–9. All further references to Hamlet will be cited in the text. 5 E Plowden, The Commentaries or Reports of Edmund Plowden (London, 1761) 310. 6 Ibid 315.

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surrounding the case was intensified by the fact that the ore was actually being seized by the German mining firm of Haug, Langnauer & Company to which Elizabeth had granted a monopoly on copper mining in England by letters patent in 1564. Under that agreement, made to Daniel Hochstetter and Thomas Thurland, Elizabeth reserved to herself all of the gold, silver and quicksilver to be found by the German operators, along with one-twentieth of the copper for the first five years of the grant, and one-fifteenth of it for all years thereafter.7 All the rest of the profits were to go to Haug, Langnauer & Company and their English partners in a consortium incorporated, after the judgment in the case, as the Company of Mine Royals. It is not hard to see why the creation of the monopoly and the seizure of the ore at Newlands created great public agitation in the North: the perception was that the natural resources of Englishmen were being seized from them, in the Queen’s name, by Germans.8 The public agitation was more than warranted. Correspondence surviving in the State Papers shows the Queen’s agents at Newlands not only urging her to seize to herself prerogative rights being exercised by ‘Princes’ on the continent, but also demanding that she bring the matter to trial on behalf of the ‘strangers’ working the mines so that they might exploit the natural resources of England and be ‘defended’, as they did so, ‘agaynst all [English] men’.9 The ‘lordes of the soiles wyll cryee fye of the game’, Thomas Thurland wrote, but Elizabeth need only claim that copper contained minerals to which she could more easily assert a prerogative right, ‘for there is a pryncyple and maxime in myneralls there is no Copper but yt holds gold or sylvr or else boothe’.10 At stake in the case was the inheritance of Magna Carta. Queen’s Counsel cited chapter 21 of the Great Charter (‘Neither we, nor our Bailiffs, nor others shall take any Man’s Wood for our Castles, or other our Necessaries to be done, but by the License of him whose the Wood is’) not to extend the Charter’s protection of timber to the protection of all natural resources in or on the freehold property of a subject, but rather to contend that the king might exercise any prerogative right not explicitly ‘restrained’ in the Charter’s various clauses. Contending that ‘the Law is not known but by Usage, and it is Usage which proves what the Law is’ (a circular statement if ever there were one), Queen’s Counsel aimed to make the case turn on a handful of fourteenth- and fifteenth-century charters dredged up from the Exchequer vaults. These charters, which dated from 1319 to 1485, showed the king receiving anywhere from one-sixteenth to one-fifth of the ore in select mines from the persons that the charters licensed to search and dig for gold and silver, and they constituted, for Queen’s Counsel, ‘Proof ’ and ‘Testimony’ that

7

SP 12/36/34, 169r–172r. See EH Ash, ‘Queen v. Northumberland and the Control of Technical Expertise’ (2001) 39 History of Science 215. 9 SP 12/42/61, 146r and SP 12/42/33, 84r. 10 SP 12/42/33, 84r. 8

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‘the King’s Prerogative may touch the Freehold of another’.11 Queen’s Counsel put a great deal of pressure on two charters of Richard II, as the earliest of only three charters that made any mention whatsoever of copper. The challenge for the Earl’s counsel, blindsided by their legal opponents’ use of Magna Carta, was twofold: they had to dispute the characterisation of the charters as well as the nature of the king’s ‘Interest’ in the metals. For the Earl, Serjeant Robert Bell claimed that the charters were proof not of law, but rather of its evasion: they were evidence of compacts between the kings and ‘those who sued to the Kings . . . with an Intent to gain’. The kings claimed their ‘Toll-dish’ of ore, moreover, ‘not in Respect of any Interest which the King had in the Thing itself ’, but to offset ‘the Charge of the Officers, as Comptrollers, Triers, and such like, constituted by him for Direction of the Stanners and the Labourers’. The king took a share, in short, not because the mines were ‘his own’, as Queen’s Counsel contended, but in order to pay others for their labour.12 The legal documents that mattered, according to Bell, were the letters patent issued by Philip and Mary to the Earl of Northumberland and authorised by the ‘Great Seal of England’, that ‘Testimony of Truth . . . whose Credit cannot be impugned’.13 Philip and Mary had granted the land to the Earl knowing that it contained minerals of various kinds, and their specification of this admitted of no exception. To confute this claim, Queen’s Counsel had to breach the most fundamental principle of legal interpretation, regularly reiterated in Plowden’s Commentaries, that the ‘Effect of all Words’ must be determined according to their ‘reasonable Sense and Construction’.14 Describing the crucial words of the letters patent, which granted to the Earl ‘omnes et singulas mineras’ in the lands at Newlands, as ‘Words of Surplusage’,15 Queen’s Counsel in effect asserted that the Great Seal had been used to authorise legal language of no legal significance. Unable, however, to offer any decisive precedent of an English sovereign exercising a prerogative right in copper, Queen’s Counsel had to make the case turn (as Thurland had predicted) on claims about copper’s make-up. They thus argued that the Queen had a right to copper because ‘the Gold or Silver and the Copper are together and indivisible in the Soil, and are so incorporated that they are as one entire Thing’.16 As the ‘Possessor of the valuable Thing’, the gold or the silver, the Queen ‘shall be also the Possessor of the base Thing’, the copper.17 This distinction between the ‘valuable’ and the ‘base’ was the by-product of the foundational claim that the king, as the ‘most excellent Person’ in the realm, is the rightful owner of all of the realm’s most excellent things.18 This contention

11 12 13 14 15 16 17 18

Plowden, n 5 above, at 322. Ibid 329–30. Ibid 330. Ibid 329. Ibid 335. Ibid 323. Ibid 325. Ibid 315.

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derived, presumably, from 17 Ed 2 c 1, which asserts that the king is ‘the most excellentest & worthiest parte or member of the common body of the wealth’.19 The statute offers its rationale for this excellence: the king is the most excellent person because he is the ‘preseruer, nourisher and defender of all the people . . . And by his great trauailes studie and labours they enioy not onlye their lifes landes and goodes, but all that euer they haue besides in rest peace and quietness’.20 Such rationale was present in Queen’s Counsel’s arguments, but it was proffered in highly reductive (and fear-mongering) terms; the copper was the king’s because God had supplied it to him as ‘natural Provision of Treasure for the Defence of the Realm’ without which would ensue ‘the Ruin of the Realm, and the Confusion of the People’.21 The king’s ‘excellence’ authorised not only the seizure to the king of all of the excellent things of both the sea and the earth, but also a system of valuation, presided over by the common law, that valued people in relation to things: ‘the Common Law . . . appropriates every Thing to the Persons whom it best suits, as common and trivial Things to the common People, Things of more Worth to Persons in a higher and superior Class, and Things most excellent to those Persons who excel all other’.22 This contention, aired by Serjeant Onslow, not only stratified England’s population into classes, it made the common law, alarmingly, into an expropriating entity that adjudicated human worth. The immediate ramifications in terms of the legal argument were clear: as long as the mines in Newlands had any gold or silver in them, the common law gave them to its most excellent person, the king. Its ramifications for an understanding of the English body politic, and the relation of the king to its ‘members’, were more subtle, and more noxious. The designation of the members of the English body politic as the ‘common’ who might be assigned only the ‘trivial’ had the potential to function as a ‘rank corruption mining all within’ (3.4.146). On behalf of the Earl, Bell turned Queen’s Counsel’s contention, and their illustrative example, to precisely the opposite ends: he agreed that the copper and the gold or silver within it might be understood as ‘one entire Thing’, but contended that, as such, they belonged not to the king, but to the subject in whose land the copper was found. Queen’s Counsel had argued that an heir left as his inheritance a set of charters that had been sealed in a box should claim the box along with the charters as his legacy, for he could not get at the one without possessing (and being legally entitled to break the seal on) the other. By this example, Bell countered, the subject should have any gold or silver that comes with copper in his land where the value of the copper was greater than that of the gold or silver; the copper was the inheritance proper, the gold or silver simply the material in which it was packaged. Bell’s inversion of Queen’s Counsel’s terms

19 20 21 22

W Staunford, Exposicion of the Kinges Prerogatiue (1567) 5r. Plowden, n 5 above, at 315. Ibid. Ibid.

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made the copper in its quantity and mass ‘more worthy’ than the gold or silver.23 Whether this was understood as a reassertion of the worth of the subject and his or her place within the English body politic is unclear, but it was certainly a reassertion of the importance of Magna Carta: unless the ‘base mines’ contained in them ‘a superior Quantity of Gold or Silver’, ‘the Possessors of the Soil’, not the king, ‘were to enjoy . . . and take the Ore in them as Parcel of their Soil and Freehold’.24 In their deliberations, three of the justices (Harper, Southcote and Weston) were willing to concede that the quantity and relative value of the copper mattered, affirming that ‘as well the Gold and Silver as the base Metal entirely belongs of Right to the Subject who is the Proprietor of the Soil, if the Gold or Silver does not exceed the Value of the base Metal’. Nevertheless, the decision of all 12 justices (taken, Plowden notes, when ‘there were none present but themselves and the Counsel who had argued for the Queen’) was to convict the Earl of ‘Contempts and Trespasses’ against the Queen, for not establishing as fact that the copper at Newlands was worth more than the gold or silver.25 As the historian Eric Ash has shown, the court convicted the Earl for not showing what he had no power to show, as all of the men qualified to establish the relative value of the minerals in the mines at Newlands were in the Queen’s employment.26 Plowden’s commentary on the Queen v Northumberland is unusual in more than one regard. It is considerably longer than any other commentary in the first volume of Plowden’s book, which despite its title, the Commentaries, involves mostly the ‘Acts and Sayings’ of others and little by way of amplification or critique.27 It is also unusual in that Plowden takes sides, concurring with Serjeant Bell that the judicial rationale was ‘not reasonable’: if there is no more than a Quilful of Gold or Silver in a great Value of Copper, as Bell said, it is not reasonable that so small a Quantity should be respected, but the Quantity ought to be such as is of some Value in itself over and above the Charges of getting it, and above the base Metal consumed therein. For if the Value is not regarded, but the Gold or Silver, be it ever so little, shall entitle the Crown to the whole Mine, from thence it would follow that the Crown would have all Mines of base Metal in the Realm.28

Plowden’s critique goes to the root of the principles of valuation in the case, which would maintain the king in his ‘excellence’ at great expense: not simply the actual expenses involved in the ‘getting’ of ore at any given mine, but also the intangible expenses witnessed in the case’s arguments, where equitable principles of interpretation were set aside to justify the seizure in the Queen’s name; where

23 24 25 26 27 28

Ibid 328. Ibid 329. Ibid 336. Ash, n 8 above, at 228. Plowden, n 5 above, at vi. Ibid 339.

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the authority of the Great Seal of England was impugned; and where a handful of little charters whose contexts were uncertain were used to undermine one of the more important clauses of the Great Charter of England. The holding was a matter of alarm because it allowed the ‘Quilful’, a small amount of matter associated with the king, to trump the value of a much greater amount of matter associated with subjects, or the ‘royal’ to consume and defeat the ‘base’. Plowden also took issue with the claim on the justices’ part that they retained for subjects exclusive proprietary rights in ‘such Mines of base Metals which are void of Gold or Silver’. This judgment was ‘vain and of no Effect’, Plowden declared, as the justices would know if they had read Georg Agricola’s De Re Metallica, published in 1556, which made public the knowledge about copper that Thurland had communicated privately to the Queen: ‘by the said Author there is no such Mine in this Realm, or elsewhere’. For Plowden, the jurisprudence in the case failed in part because the justices had not referred to ‘Authors’ in other domains, and in this instance to an ‘Author’ of the ‘art’ of minerals, who would have helped them understand the nature of dirt.29 Plowden’s terms are both restrained and provocative. He writes obliquely of the ‘Quilful’, but his critique nevertheless suggests that the judicial holding had forgotten the premise of the English social contract, which is to protect the ‘base’, and to do so in part by not allowing incursions against subjects’ property from a single expropriating figure. His position on the nature of the social contract is captured more explicitly in a letter of 1568, surviving in Lord Burghley’s papers, that documents a meeting that took place at Serjeant’s Inn within two weeks of the judgment. Plowden had almost certainly been invited to give the Company of Mineral and Battery Works a clear sense of the legal opposition it would face if its members attempted to get the Queen to claim, on their behalf, a prerogative right in calamine based on the traces of gold in the stone. His position, as summed up for Lord Burghley by one of the Company members, was adamant: ‘the prince could not take from him any part of his inheritance, known or unknown, nor forbid him the use of it what so ever it was’.30 Plowden’s comments were sufficient to convince the Company of Mineral and Battery Works that it would have to find ‘some intyre Courte or office for Judgement of mynerall And metallyn cawses . . . otherwise then At the Common Lawe’ if it wished to circumvent Plowden and any other common lawyer who upheld his views on the nature of the English social contract.31 The case’s immediate effects were also felt in the north of England, where Northumberland’s sense of the great judicial wrong done him left him first in a ‘wonderfull perplexitie’ in which he debated ‘whether he should flye, or openly rebel’, and then prompted great action: he ‘amasse[d], and dr[e]w together an

29

Ibid. SP 12/46/35, f 75r. 31 Ibid. See also G Parmiter, Edmund Plowden: an Elizabethan Recusant Lawyer ([London] Catholic Record Society, 1987) 98–9. 30

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ignorant multitude’ arguing that they must not let themselves ‘be trampled vnder foot by late start-ups, and their Countrey yielded as a prey to strangers’.32 The subsequent Northern Rising failed, and Northumberland was executed for treason in 1572; but the case’s connections to Catholic dissent in the North (Northumberland drew together those who were, like himself, ‘deeply affected to the Romane Religion’33) may explain in part why Shakespeare’s play, set in Denmark and centring on a character educated at the Protestant stronghold of Wittenberg, should so extensively manifest Catholic ways of thinking.34 The play is haunted by a lost theocracy, and beleaguered conceptions of the body politic, associated with a particular religious dispensation, and perhaps particular rebels. The continuing animus generated by the case is registered in another letter surviving in Burghley’s papers which takes up the question of whether the grant made by Elizabeth to Hochstetter and Thurland in 1564 was lawful. The anonymous writer is not concerned with the seizure of the copper by the Queen, which he does not dispute, but rather with the letters patent to Hochstetter and Thurland, which he denounces as not only ‘against the strength and policy of the Realme’ but also ‘by repugnancy’ ‘void’ at law, for no subject ‘of what estate soever he be should have an inheritance in the treasure of the realm’.35 (The letters patent allowed Hochstetter and Thurland to pass their rights in the copper at Newlands onto ‘their heirs and Assignees for ever’.)36 For the writer of the 1579 letter, the threat to the English social contract came not with the seizure from Northumberland, or any one man’s inheritance, but rather with the seizure from the collective inheritance of English subjects. The anonymous writer of the 1579 letter and Plowden appear to have had completely different conceptions of the case’s threat to the English social contract, and what most pressingly needed to be defended: the individual subject’s property holdings or the collective holdings of the English body politic. But Plowden’s views on the king’s relationship with property as expressed in another of his texts narrows the gap between the two positions. In his 1566 ‘Succession Treatise’, written, he claims, to ‘arm’ his (unknown) reader and himself on the question of the succession issue, Plowden argues that the conjunction of the king’s ‘body politique’ with his natural body so ‘altereth’ the capacities of the latter ‘that he can make no testament’.37 The king may make no will, for he has nothing to will: at the moment of his death, all property held by him as king instantly vests in his successor. The proposition that the king might be able to make a will is therefore absurd: ‘[T]o what end should law give power to them to make testaments that can have no goods to their own uses to bestow?’ Along with

32 33 34 35 36 37

W Camden, Annales (1625) ff 218–19, sig Ff1v –Ff2r. Ibid 218. See S Greenblatt, Hamlet in Purgatory (Princeton, Princeton University Press, 2001). Ibid f 23v. SP 12/36/34, f 171r. Ibid 6v.

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the heads of other kinds of corporations (such as bishops) the king holds property only to ‘the right and the use of the corporation’ of which he is the head. For Mortimer Levine, writing some 50 years ago, the implication that the king holds Crown property ‘in trust for the nation’ was the treatise’s most radical aspect.38 Plowden’s phrasing, which resonates with the terms of the Case of Mines (the ‘Law’ gives the king no power to make a testament ‘sithens he could have nothing to his own use’ (emphasis added))39 points us to the most pressing problem of the Case of Mines, which confuses the matter of for whom the seizure at Newlands was being made. Having seized the copper to ‘her own proper use’ only to give the greater portion of it away to others, Elizabeth can hardly have been perceived as seizing the copper for ‘the right use of the corporation’ of which she was the head, even if her justices claimed that the copper was seized for and by ‘the Crown’. It is little wonder that Elizabeth saw in Shakespeare’s Richard II, a king ultimately deposed for his property grabs, a portrait of herself. With the grant to Hochstetter and Thurland, she may very well have been perceived as outdoing the king whose charters were exhibited on her behalf in the Queen v Northumberland. One can only wonder what she made of Hamlet, a play that stages, with its play-within, the theatre’s power to provoke a response from kings. Like all revenge tragedies worth their salt, Hamlet offers its audiences a general sense of symbolic compensation for judicial wrongs. But Hamlet achieves a particular excellence through its topical concerns, which make the compensation achieved by its Danish prince compensation for failures in English jurisprudence. Dealing with spectres of the English legal and political past that are not limited to the Queen v Northumberland but which are given important and distinct form by it, the play pursues the proper place and function of the king within the ‘perfect corporation’ of the English body politic, and his proper relationship to the property of the Crown.

‘THE KING IS A THING’ The play finds its most explicit verbal engagement with the Case of Mines in the charged material of Act 4 scene 2, which involves a political riddle that has baffled editors of the play from Malone onwards.40 The exchange begins with the demand from those royal agents with German names that Hamlet tell them 38 See The Early Elizabethan Succession Question 1558–1658 (Stanford, Stanford University Press 1966) 111–15, esp 111. 39 BL Ms Hargrave 849, 5r. 40 See CE Moberly (ed), Hamlet, Prince of Denmark (London/Oxford/Cambridge, Rivingtons, 1873) 94; HH Furness (ed), A New Variorum Edition of Shakespeare: Hamlet (Philadelphia/London, JB Lippincott Company, 1918 [1877]) vol I, 316; and J Johnson, ‘The Concept of the “King’s Two Bodies” in Hamlet’ (1967) 18(4) Shakespeare Quarterly 434.

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‘where the body is’ and go with them to the king (4.2.23–4). Hamlet’s initial response compels a divorce between Claudius and that special ‘body’ that attaches to the body natural of the sovereign in sixteenth-century conceptions of the sovereign’s relationship to the body politic: ‘The body is with the King, but the King is not with the body’ (4.2.25–6). Ostensibly a comment about Polonius’s corpse, the remark is a commentary on the special character of the body politic, which cannot die, but can only be demised, that is, transferred to the next body natural that is its tangible locus. The king’s second body, his body politic, is always with the king for the king and the body politic are one and the same; as Plowden writes in the ‘Succession Treatise’, ‘they be incorporate to him and he to them. And they both make a perfect corporation’.41 The play’s king is however ‘not with the body’ for, having made a ‘damned defeat’ ‘[u]pon the property and most dear life’ (2.2.505–6) of the previous king, Claudius has set that other body roaming. Hamlet’s statement simply expresses, then, in concise though riddling form, his perception of the rupture in that corporation that Claudius has created by killing his brother. The natural body of the previous king is dead, but the body politic has not been properly demised. As the play’s avenger, Hamlet needs to do more than clean house (or weed the garden). He needs to take back possession of the body politic, and see it properly housed in him.42 The first half of Hamlet’s statement is, then, in and of itself daring stuff. Within the fiction, it is not simply political diagnosis, it is accusation and threat, charge and judgment; and as political discourse beyond the fiction it is radical, for it imagines a disjunction between the ‘King’ and the ‘body politic’ for which not even heterodox political or legal thinking of the period would allow. The statement is also politically incendiary, for it articulates the logic whereby Hamlet might kill Claudius without being understood to kill the king. It thus simultaneously expresses for an English audience in the late 1590s or early years of the seventeenth century the logic by which the people of a commonweal might take action against a bad king. It is, however, not this remark, but the rest of Hamlet’s utterance at 4.2.26 that resonates most importantly with the Case of Mines. Having declared that ‘the King is not with the body’, Hamlet now proceeds to claim that the ‘King is a thing’. The befuddled straight-man to a political joke that he does not comprehend, and whose punch-line he cannot possibly predict, Guildenstern responds, ‘A thing, my lord?’ (4.2.27). Hamlet’s response—‘Of nothing’ (4.2.28)—invokes and thwarts the system of valuation upon which Queen’s Counsel so heavily relied in the Case of Mines, to initiate a process of recuperating the mass of

41

BL Ms Hargrave 849, 2r. See E Kantorowicz, The King’s Two Bodies: a Study in Medieval Political Theology (Princeton, Princeton University Press, 1957); M Axton, The Queen’s Two Bodies: Drama and the Elizabethan Succession (London, Royal Historical Society, 1977); and L Hutson, ‘Not the King’s Two Bodies: Reading the “Body Politic” in Shakespeare’s Henry IV, Parts 1 and 2’ in L Hutson and V Kahn (eds), Rhetoric and Law in Early Modern Europe (New Haven, Yale University Press, 2001) 166–98. 42

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England’s population from the denigration to which it is submitted in the case in its associations with the ‘trivial’, the ‘common’ and the ‘base’. As the play recovers those ‘unvalued persons’ (1.3.18) with whom its avenger is aligned from their devaluation in the case, Hamlet compels distinctions between sovereigns (a project that he executes most forcefully with Gertrude). In the course of this, he finds another way to reduce the king to a thing in his claim that Claudius is ‘not twentieth part the kith’ (Q2) or the ‘tythe’ (F) of Gertrude’s ‘precedent lord’. (3.4.95–6) This talk, which resonates with talk of the fractions of ore reserved to the king in the various charters exhibited in the Case of Mines, shaves Claudius into parts, dividing him ‘inventorially’ (5.2.99) in ways that subtly reinforce Hamlet’s contention that this king, a king of ‘shreds and patches’ (3.4.99), is not only a thing, but with the Folio’s ‘tythe’, a very fine one.43 The violent ‘presentment’ (3.4.52) to Gertrude furthermore suggests that the play is making its own case for the kind of sovereign required by or for the English body politic (and calling, in her figure, a queen to account). As it recovers sovereignty from the debasement to which Claudius subjects it within the dramatic fiction, and the ‘common’ from the debasement that it suffers in the case, the play offers more than one unusual trope for the body politic. In Rosencrantz’s flattering vision of the king as ‘[t]hat spirit upon whose weal depends and rests / The lives of many’ (3.3.14–15), the sovereign is a ‘massy wheel / Fixed on the summit of the highest mount / To whose huge spokes ten thousand lesser things / Are mortised and adjoined’. (3.3.17–20) This wheel, which may bear a debt to Agricola (see Figure 9.1), lends itself, however, to subversive redeployment. As the Player’s long speech about Pyrrhus’s ‘roused vengeance’ and Fortune’s wheel in Act 2 suggests, those sitting in ‘general synod’ may exercise their collective choice to ‘break all [its] spokes and fellies’ and ‘bowl [its] round nave down the hill of heaven’. (2.2.490–2) The imagined act of violence, which reduces the (k)nave at the centre of the weal to a mere part, is a step towards recuperating the true excellence of sovereignty, which can only be had where the ‘head’ understands and subordinates himself (or herself) to the central paradox of the king’s place within the body politic: the sovereign is excellent only to the extent that s/he embodies the subordination of each individual in the collective to the whole of which s/he is a part. To reconstitute the ‘weal’, the play puts its dead king into the ‘cellarage’ (1.5.151). The names that Hamlet applies to his father while he is in that space are mining terms (although I am not the first to note that): the Ghost is an ‘old mole’, a worker in the earth who impresses Hamlet with his speed (1.5.161). He is also the ‘pioner’ (1.5.162), a term used for labourers generally, but also more specifically for miners and quarriers: those workers in the earth who dug, and

43 As the gloss in the Arden edition notes, the Folio’s ‘tythe’ makes Claudius the ‘twentieth part of a tenth part’ (at 343).

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Figure 9.1 ‘Machinae Superioris Rota’ or one of the many ‘massy wheels’ at the early modern scene of mining. From Liber Sextus of Georg Agricola’s De Re Metallica (1556). Reproduced by permission of the Huntington Library.

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sometimes were the advance guard digging the kind of mine used in sieges.44 While the ‘old mole’ has served as the figure for a later revolution, I am concerned not with how the play may be bringing a later ‘ideological superstructure down to earth’, but rather with how Shakespeare’s use of the space beneath the stage connects the play to its sixteenth-century concerns, and possibly to Shakespeare’s own acts of reading.45 As a voracious reader regularly mining others’ texts for his source material, Shakespeare may have done what Plowden wishes the justices in the Queen v Northumberland had done, cracked open Georg Agricola’s De Re Metallica, which is dominated by woodcuts depicting the scene of labour at which the materials of the earth are gathered, smelted, assayed, forged, weighed and carried away. Some of these illustrations are cutaways that show men working in the earth while others perform their activities on the ground above (see Figure 9.2). Like De Re Metallica, Shakespeare’s ‘presentment’ showcases a factor that goes entirely unaccounted for in the valuations of the case, not only workers who get mentioned occasionally in the charters by the names of ‘John Balancer’ and ‘Walter Goldbeter’, but also those who are referred to simply as the ‘Labourers’ who are paid to do the ‘searching and digging’: those like the ‘goodman delver’ of Act 5 who would never be worth naming in any account held or produced in the court of the king’s Exchequer even though it is their labour that converts dirt into the treasure that secures the realm.46 The play performs an important act of levelling in which the king is not only brought down to earth, but situated beneath it, and associated there with those with whom Hamlet is concerned when he meditates on suicide, those who ‘grunt and sweat’ not only ‘under a weary life’ but under a special kind of burden, that of ‘fardels’ or parcels of dirt (3.1.75–6). From that space and from this figure curiously aligned with the lowliest of the labourers at mines comes the demand for revenge—revenge that will counter not only the ‘forged process’ (1.5.37) of Hamlet’s father’s death, but also the suspicion, voiced by Marcellus in the play’s opening scene, that the dead king must stalk the earth nightly in his armour because he has ‘uphoarded in his life / Extorted treasure in the womb of earth’. (1.1.135–6) The ‘old mole’ rooting around under the stage and compelling his son to ‘blow [things] to their trial’ (5.2.173) drives a revenge plot that turns his son into an under-miner: to save his own life as he pursues Claudius’s, Hamlet will ‘delve one yard below their mines’ to ‘hoist’ Rosencrantz and Guildenstern with their own ‘petard’ (3.4.205–6), that small bomb used to breach fortifications and blow open mines. This incendiary statement features only in the Q2 or ‘maximal’ version of the text, published in 1604, which suggests that Shakespeare’s conception of the play at its fullest is infused not only with thoughts of

44 See P Stallybrass, ‘“Well Grubbed, Old Mole”: Marx, Hamlet and the (Un)fixing of Representation’ (1998) 12(1) Cultural Studies 13. 45 See ibid esp 11, and M Harries, ‘Homo Alludens: Marx’s Eighteenth Brumaire’ (1995) 66 New German Critique 55. 46 Plowden, n 5 above, at 319 and 313, respectively.

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Figure 9.2 Cut-away of miners working in the earth from Georg Agricola’s De Re Metallica (1556). Reproduced by permission of the Huntington Library.

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metals, but also with images from the scene of mining. This imagery extends to Gertrude’s claim that Hamlet’s grief at his inadvertent killing of Polonius is like ‘some ore / Among a mineral of metals base’ that ‘[s]hows itself pure’ (4.1.25–7) in him. Given that his madness aligns him with the English (they are ‘as mad as he’ (5.1.146)), whatever it is that ‘shows itself pure’ in him may also show itself pure in the English audience for whom he struts about the stage, and for whom he is the purgative agent. Even the crime that he must avenge is given mineral expression: the poison that Claudius administers to his brother is a ‘leprous distilment’ that moves ‘swift as quicksilver’ (1.5.64–6) through the body that represents for Hamlet the correct embodiment of the body politic. With all of its talk and imagery of purgation, the play suggests its capacity to take on the ‘sovereign process’ (4.3.61) of an English court that, to allow for a special act of ‘up-hoarding’ of the treasure of the realm, had reproduced and reified the ‘excellence’ of one person at the expense of those designated as the ‘base’. Actively producing figures of subversion in its own domain, the play has a certain fellow come up from the cellarage in Act 5 to turn and shift earth as he disrupts the legal rationale in more than one case reported by Plowden.

THE ‘COMMON CAUSE’ He may not get much digging done between tutoring his mate and bandying words with a prince, but the grave-digging Clown of Act 5 does a great deal of work. He explicitly mocks the argumentation in one case reported by Plowden, Hales v Petit, even as he more subtly engages with the problems raised by the Case of Mines. The critiques connect around the matter of class, for even as he challenges the logic by which unintentional drowning would be deemed suicide, and thus a felony, the problem at the heart of Hales v Petit, the Clown objects to laws that pit ‘great folk’ against ‘even-Christens’. (5.1.27–9) The Clown’s concerns with class extend to his need to claim for himself the status of gentleman despite his lowly labour, and to do it with his tool (‘Come, my spade. There is no ancient gentlemen but gardeners, ditchers and grave-makers’ (5.1.29–30)). The lesson that he doles out to his mate while he works with his spade is not only a lesson about the value of their labour, but also a rehearsal: not only must his mate understand that they build the right kind of house those that will last their tenants until they can be entrusted (under a Christian dispensation) to the care of another, he must learn to defend this labour to others: ‘[w]hen you are asked this question next, say a gravemaker. The houses he makes lasts til doomsday’. (5.1.54–5) When the Clown finds another, more accomplished sparring partner in Hamlet, his focus shifts to concerns more closely related to the Case of Mines. Across a class divide and the yawning pit of Ophelia’s grave, like-minded fellows meet; for while Hamlet may be puzzled by the ‘drossy age’ (5.2.169) and the fact that in its ‘picked’ or refined days ‘the toe of the peasant comes so near the heel of

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the courtier’ (5.1.132–3), his most famous soliloquy suggests that he is as concerned as the Clown with the workings of the law and its effects on ‘even-Christens’. Their exchange centres on the hole in which the Clown digs, and the question of to whom it belongs. It begins with Hamlet’s question, ‘Whose grave’s this, sirrah?’ (5.1.110–11) to which the Clown responds ‘Mine, sir’. (5.1.112) The Clown’s claim prompts a line of questioning that approximates the most important questions of the Queen v Northumberland: on what basis and for whom does the Clown claim to be ‘the Proprietor of the Soil in which the [grave] shall be dug’?47 The claim is absurd, of course, and not only because no one could possibly want to be the proprietor of a grave; it is absurd because it flouts legal rationale. The Clown is claiming as his a thing that belongs to a category of things that no one may own: ‘some [things] are of none nor properly of any mans goods, as churches and sacred things’.48 In this light, the Clown is a parodic figure for a culture that defines its persons in relation to the kind of thing to which they have the power to lay claim, and we might see his claim as proving precisely how ‘absolute’ a ‘knave’ he is (5.1.129); inasmuch as the Clown takes to an extreme the sovereign seizures of the Queen v Northumberland by seizing to his ‘own proper use’ something that can really have proper use only for another, he seems to be a parodic figure for the ‘king’ of the case. But we cannot get away from the fact that the Clown claims the grave as his not on the basis of who he is, but rather on the basis of what he does. As such, the claim challenges the rationale behind the system of valuation upon which Queen’s Counsel depends in the Case of Mines for it takes account of a quantity unconsidered in the case, the labour of the diggers. The Clown at any rate claims the grave not for himself, but for another—‘one that was a woman, sir, but rest her soul she’s dead’. (5.1.127–8) The proprietary claim, then, appears to be of the character that any proprietary claim made by the king ought to be: for inasmuch as he holds any property, the king holds it symbolically, temporarily, for others. Or as Sir Edward Coke will assert, in 1607, in his report on the Case of Saltpetre, the king holds treasure from the earth only as a ‘purveyance’, something that he takes from one subject only to pass it on to others.49 Claiming as his the land in which he digs only to turn it over to Ophelia, the Clown enacts (in an admittedly perverse context) the actions of a sovereign who construes his relationship to the property of the realm as that of trustee, and holds nothing to his own proper use. This ‘ancient gentleman’ at work with his spade does not simply tutor his mate; he shows an English audience in 1599 what it is to be a king. The political ramifications of the theatrical action in Act 5 scene 1 may very well have been magnified by the theatrical practice of doubling if, with the ‘old 47 48 49

Ibid 319. R Doleman, A Conference on the Next Succession to the Crown of Ingland (1595) 22. E Coke, The Twelfth Part of the Reports of Sir Edward Coke, Kt (1658) 13.

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mole’ popping out from beneath the stage to make his proprietary claim to a hole in which he digs, the play’s dead ‘king’ becomes its ‘delver’. Among other things, the doubling of the roles of Ghost and Clown would allow the play to suggest its capacity for surrogacy: that is, its capacity to substitute for a legal spectre a theatrical figure, the Delver-King, through which it exercises its prerogative to assert the right kind of ‘head’ for the body politic. In other words, as the play converts the concerns of a 30-year-old case into theatrical representations, the theatre’s representational practices give it the power to bring about a conjunction of bodies that makes not only the king into the ‘delver’, but also the ‘delver’ into the king, with both roles located, in performance, in a single body (possibly, as tradition will have it, Shakespeare’s). The disjunction between the body politic and the king that Hamlet expresses in his apparent ‘madness’ in Act 3 is thus resolved not through talk, but through the material that is the actor’s stock-intrade, that thing that is his own natural resource and which he may put, as he wills, to his own proper use. The doubling of the roles would have allowed the players to manifest the excellence of the English king not only as a by-product of his inseparability from, and proper valuation of, the ‘base’, but also as a product of his actions: royal, like the excellent king of 17 Ed 2 c 1, because he labours for others, the Delver-King shows an English audience in 1599 not only what it means to be a king, but more precisely what it means to be a king of England. As it deals with the case’s troubling conception of sovereignty, and substitutes for it another, the play pursues the kind of sovereignty promoted by Plowden in his ‘Succession Treatise’. Immediately after he asserts that the king may make no will, Plowden aims to bolster his contention by offering proof that the concept of the king’s two bodies and the relation between them for which he is arguing is ancient. He could, he claims, turn to many ‘philosophers and others [who] have written of common wealths and other laws’, but to ‘avoid tediousness’ will offer ‘only one’; and the writer to whom he turns is neither political philosopher nor legal writer, but rather a poet, ‘for poets’, he writes, are his ‘sporting companions’ when he is ‘disposed to be wanton’.50 Plowden’s ‘wanton’ turn takes him to the tale of Agamemnon’s sacrifice of Iphigenia in Book XII of Ovid’s Metamorphoses. Agonising over whether to kill his own flesh and blood, as the goddess Diana was demanding, in order to ensure Greek success in their wars against the Trojans, Agamemnon is torn between ‘the duty of his body politic, and his affection in his body natural; and which he should prefer’. In the end, with Agamemnon’s decision to kill his daughter, ‘the common cause prevailed before the private’.51 A literary text thus furnishes Plowden with his proof that the king’s private interests, or the interests of his natural body, must be subordinated to the common cause and the public good, and ‘the general utility . . . preferred before any singular commodity’.52 50 51 52

BL Ms Hargrave 849, 6v. Ibid 7r. Ibid 6v. See also Axton, n 42 above, at 26–7.

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Hamlet’s yoking of his own ‘particular’ concerns to a ‘general’ cause is most acutely realised in the fencing match of Act 5, which is a thinly disguised trial by battle in which Hamlet must make the King answer for his crimes even as he answers Laertes for his. The apparently self-interested action of clearing himself of Laertes’s charge by answering him in the trial by battle of the fencing match is action for ‘the general’, for it is only by clearing himself of the taint of murder that Hamlet may claim, taint-free, the Crown of Denmark, which fleetingly passes to him in the moments before his death. But the play suggests that Hamlet embodies the right kind of sovereignty in myriad subtle details, including his desire to be subsumed or buried under ‘millions of acres’ of earth (5.1.270), a desire, which, if fulfilled, would see him buried under a ‘fardel’ greater than any other borne by the labourers with whom he is concerned in his most famous soliloquy, and which, more importantly, distinguishes him from the kind of sovereign glancingly alluded to in the Norman ‘Lamond’ discussed by Claudius and Laertes in Act 4 scene 7. The allusion to the burial practices of the Norman kings, who took with them to the grave the gold that they had acquired in their lifetimes, situates the play’s concerns about sovereign seizures and the law in a larger historical context, for it reaches back beyond the problems of the sixteenth century, whether as epitomised by the Case of Mines or as manifest in the trauma of the property seizures of the English Reformation, to the earlier seizures of a conqueror who not only introduced into the legal language of England the concept of the king’s ‘tresor’, but displaced earlier conceptions of property holding in England as he converted common holdings into the private holdings of the king.53 The avenger who would, as he leaps into Ophelia’s grave in Act 5, clasp to himself not gold, but a girl, is the ore amongst ‘metals base’ that needs to be recovered from the heap of the earth in which he would too willingly immerse himself precisely because he consistently acts not for himself, but for others, whether as his father’s agent or the agent of the ‘general gender’. By these actions he crucially distinguishes himself from the kind of king who would go to his grave with treasure ‘extorted from the womb of earth’ in order to trumpet his excellence to eternity. As Hamlet distinguishes its prince from ‘up-hoarding’ sovereigns, it strengthens his connections with the ‘general gender’ (that constituency which, we are told, loves him) by making his act of writing in the final Act a representative one. Writing as a ‘statist’ to produce the forged warrant for Rosencrantz and Guildenstern’s deaths, Hamlet does himself, he claims, ‘yeoman’s service’. (5.2.36) Yeomen were the commoners whose property holdings were of sufficient size that they might serve on juries and be elected to Parliament, their holding and cultivation of land securing for them the right to participate in the shaping of law and the performance of justice. Hamlet’s symbolic function for English audiences is 53 See De Grazia Hamlet without Hamlet (Cambridge, Cambridge University Press, 2007), at 64 and S Lerer, Inventing English: a Portable History of the Language (New York, Columbia University Press, 2007) 42.

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underscored by his name, which associates him, as Margreta de Grazia has recently noted, with the inhabitants of the tiny, myriad villages of England,54 and more importantly, as a late sixteenth-century English edition of Aristotle’s Politics suggests, with social contracts, which begin when men ‘draw into companies’ in ‘Hamlets’.55 When Hamlet seizes back the authority of his father’s seal, he symbolically seizes back the signatory power of the Great Seal of England, that very power used to threaten the collective inheritance of English subjects in the Case of Mines, and seizes it back for the inhabitants of all of England’s hamlets, to safeguard not only his own life and inheritance, but the ‘Safety of Inheritances’ in England more generally.56 His representative function is underscored in the fleeting moments at the end of the play in which the Crown of Denmark passes to him, and he uses his voice to ratify the power of the collective whose members will (he predicts) exercise their custom-breaking, world-making power (4.5.102–5) to determine by whom they will be ruled: ‘I do prophesy th’ election lights / On Fortinbras: he has my dying voice’. (5.2.339–40) Hamlet is a special quantity, ‘one man’ to be ‘picked out of ten thousand’ (2.2.176), because he supports the ‘quantity of choice’ (3.4.73) and the ‘general gender’s’ powers as the ‘ratifiers and props’ of the social contract (4.5.105). It is in relation to the ‘prophetic’ facet of Hamlet’s character, expressed in various ways throughout the play, that we should understand the play’s function. The play is certainly doing a good deal more than furnishing proof of the continuing currency of the theory of the king’s two bodies. As one kind of ‘pioner’ remembers the legal report of another to lead a labour of moles in theatrical action that challenges the conceptions of sovereignty and the valuations of people and things in a 30-year-old case, the play asserts its own political potential by exercising a double capacity to recall the past and anticipate the future. This is a play that rehearses in order to arm. Like its play-within, which functions not as proof of Claudius’s guilt as much as threat delivered by an on-stage ‘nephew’ for another sitting in the audience, Shakespeare’s play functions as ‘warlike volley’ (5.2.336) on behalf of the constituency with which Hamlet is associated in yet another of the play’s innovative figures for the body politic. In these, Hamlet’s head is made, twice, the site from which an armed cohort springs, ‘Like quills upon the fearful porpentine’ (1.5.20) and ‘like sleeping soldiers in th’ alarm’. (3.4.116) Converting the troubling ‘Quilful’ of the case into the sheaf of ‘quills’ on Hamlet’s head, the play reclaims the ‘one entire Thing’ of the case to forge a new conception of the body politic with a figure that is, like the Ghost, ‘cap-à-pie’ (1.2.200), entirely royal. This Prince may be the ‘head’, but as the figure for the ‘perfect corporation’, he hosts the alarmed hairs/heirs of the English social contract as the Crown. With this figure, the play imagines the collective’s security and wealth as indissolubly linked to the protection of one 54 55 56

De Grazia, n 53 above, at 6. L Leroy, Aristotles Politiques, or Discourses of Government (1598) Biiir. The phrase is from Willion v Berkley, Plowden, n 5 above, at 248.

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man’s inheritance; or, that to protect one man’s inheritance was to protect the inheritance of all. At the Globe, a particular kind of ‘stithy’ (3.2.80), 30-year-old legal materials were thus converted to public use, and it was not only its central character that had the capacity to ‘prov[e] most royal’ (5.2.382): 10 or 12 good men delving invited their audience to believe that there was a little Hamlet in them all, a ‘quilful’ that made them, each and every one, no matter how ‘base’, royal. In the late 1590s, in ‘prophetic’ mode, Hamlet revisits 30-year-old legal matter to ‘put [it] to the push’ (5.1.284), not because there would have been in 1599 much point in ‘catch[ing] the conscience’ (2.2.540) of a Queen who had allowed self-interested parties in the late 1560s to shape a dangerous judicial precedent in regard to the prerogative, but because there may have been something to gain from delivering a proleptic threat to the King-to-be, who had already furnished plenty of evidence by 1599 that he was likely to attempt to increase the reach and exercise of the royal prerogative if he acceded to the English throne. This is a play concerned with protecting the authority of the body politic of England against any man who would seize things, in the king’s name, to himself. It suggests that things will not be easy for any king who uses a 30-year-old case to threaten the ‘Safety of Inheritances’ in England, whether the inheritance is that of any one subject or the more general inheritance of the ‘common body of the wealth’. In the first decade of the seventeenth century, that 30-year-old case was of increasing importance. Plowden’s report gave the case a continuing life that it could not otherwise have had, and certainly could not have had in the same way, for it not only guaranteed a familiarity with the case’s holding, but also allowed for detailed recollection of its various facets and specific arguments by anyone willing to ‘plod’ through its law French. In his report on the Case of Saltpetre, Coke claims that even as they cited the Queen v Northumberland to allow the seizure of saltpetre for the ‘defence of the Realm’, the justices imposed a number of ‘Limitations’ on the king’s right to ensure that he could do nothing that ‘would tend to the disinheritance of the Subject’.57 There was to be no question of the saltpetre being ‘converted to any other use’ than that of gunpowder, and certainly not to any personal use of the King’s.58 Nevertheless, the Queen v Northumberland had created a precedent for the augmentation of the prerogative to which James could and did turn a mere three years later as he attempted to amplify the scope of the prerogative through both the creation of monopolies and the institution of import duties on commodities not previously taxed. In 1610, the Attorney General Henry Hobart was able not only to cite the Case of Mines, but to cite, for James, the flimsiness of the textual basis upon which the Crown had made its case in 1567: ‘for in the case of the Earl of Northumberland, mines, though there could be no precedents found but

57 58

Coke, n 49 above, at 12. Ibid 13.

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between the 7th of Edward 3 and 8 of Edward 4th and from thence an intermission until the Earl his case—yet that hindered not the judgement for the King’.59 Hobart’s ability to turn a lack of evidence for a prerogative right into a licence to claim prerogative power suggests the case’s unpredictable force, and its capacity to continue to feature in a continuing legal contest over the reach of the prerogative to which the definition of the body politic and the king’s place within it were central. But if the Case of Mines had created a precedent, so too had the play, for any lawyer prepared to make a ‘wanton’ turn to the literary in search of conceptions of the body politic that refused seizures of common property by the king for his own proper use. Whatever the precise mechanisms of exchange between the legal and the literary spheres, it is quite clear that a playwright is as capable of as ‘wanton’ a turn as a lawyer is, even though for him the wanton turn would involve not turning to Ovid, but from him, to an extraordinary book that disclosed to a public readership the most important transactions in the king’s central courts for a period of almost a quarter-century. Giving its own form to what Plowden imagines as the ‘perfect corporation’, the play furnishes not only Elizabethan but also future audiences (or readers) with an exemplum for the relation of political leaders to the state, and it does so not by imagining the sacrifice of a woman to the demands of a goddess who accepts donations only of virgin’s blood, but by creating a prince willing, in the end, to put his own natural body in danger for a cause that in no way involved his own proper use of anything. The precise intersections of the legal and the literary that Hamlet exemplifies may not be of interest to many, but they are certainly relevant to all: for, when all, even good men delving in the earth, are the ‘King’, the ‘King’ is indeed the ‘most excellent Person’, and a Person worth all the charges of getting it. This was a Person in whose name the property holdings of English subjects in their own homes could be protected even as the natural resources of the earth could be held by all; a Person, in short, to whose ‘combination and form’ all subjects could ‘set [their] seal’. (3.4.58–9) In a historical moment in which more than one social contract is under threat by sovereign figures making a damned defeat on the property and lives of others in order to seize the treasure of the earth, it is worth responding to this play’s call to be remembered; for as the heirs of a political legacy that Hamlet in its own way helped to create, it is only fitting that we encourage a ‘wanton’ turn to a poet of continuing cultural authority, so that his most famous play may furnish arms for present and future battles over the treasure of the earth, and the questions of how and in whose name they should be owned. The readiness is all.

59 ER Foster, Proceedings in Parliament 1610, vol II, House of Commons (New Haven, Yale University Press, 1966) 200–1.

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10 Inheritance in the Legal and Ideological Debate of Shakespeare’s King Lear GIUSEPPINA RESTIVO

THEATRE, LAW AND HISTORY N HAMLET, comments on the players’ arrival at Elsinore allow Shakespeare to give three subsequent definitions of the theatre, or rather his theatre. The first definition, usually ignored by literary critics, is articulated by a statesman, Polonius, as he introduces the actors to the Prince. Polonius first specifies the actors’ classical background (‘Seneca cannot be too heavy, nor Plautus too light’) but he then states that their proper matter is English law itself: ‘For the law of writ, and the liberty, these are the only men’. (2.2.396–8) In the words of Polonius, the theatre stages first of all English law, the law of writ: the legal system in which a trial at common law was started with a writ acquired in Chancery. Hence, the first acknowledged role of the theatre is not entertainment or aesthetic achievement, but rather participation in a legal and socio-political debate. Is Polonius speaking nonsense, exaggerating, or assessing the true function of theatre from an expert’s point of view? As a trusted statesman, explicitly credited with rendering good service to the Danish Crown, his political opinion cannot be undervalued; although, at a personal level, he fails to understand Hamlet’s mind, a problem which exceeds his competence. Polonius is in a privileged position from which to gain the attention of that section of the audience, which was composed of legally expert theatre-goers, many of whom were members of the Inns of Court.1 Some of these, like Polonius, followed a career in the service of

1 The significance of members of the Inns of Court in the audience for Shakespeare’s plays cannot be overestimated. See Wilfrid R Prest’s data on their growth and incidence in Shakespearean

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the state. The second definition of the theatre is offered by Prince Hamlet himself: he advocates a historical purpose for the players, defining them as ‘the abstract and brief chronicles of the time’, then adding that ‘After your death you were better have a bad epitaph than their ill report while you live’. (2.2.520–2) The third, most famous definition, again in Hamlet’s words, refers to human nature: the ‘purpose of playing … was and is to hold as ’twere, the mirror up to nature; to show virtue her feature, scorn her own image’. This psychoanthropological outlook has often been isolated by critics from the other two aims of Shakespeare’s theatre, as quoted above. This despite the fact that the passage adds that playing renders ‘the very age and body of the time his form and pressure’. (3.2.20–4) To his three definitions of the role of theatre, Shakespeare adds important and perceptive comments on the composition of his audience: ‘this overdone or come tardy off, though it make the unskilful laugh, cannot but make the judicious grieve, the censure of the which one must in your allowance o’erweigh a whole theatre of others’. (3.2.25–8) Distinguishing between ‘the unskilful’ (the many) and ‘the judicious’ (the few), Hamlet/Shakespeare alludes to a learned and alert audience, augmented by members of the Inns of Court, as well as by Cambridge or Oxford undergraduates and fellows, in an age, as Lawrence Stone has noted, of educational revolution and considerable social mobility.2 The definition of the purpose of theatre, offered in Hamlet, applies also to King Lear, (reference here is to the Quarto edition), performed at court, in the presence of James I, on 26 December 1606, during the Christmas revels. Concerning the first definition, pertaining to the law, references to law and justice are found throughout King Lear, which contains the most striking denunciations of corrupted justice to be found in Shakespeare, including such lines as ‘which is the justice, which is the thief?’ (4.6.154–5) and ‘Robes and furred gowns hide all. Plate sins with gold, / And the strong lance of justice hurtless breaks’. (4.6.166–7) No less impressive is the depiction of the ‘great image of Authority: a dog’s obeyed in office’. (4.6.159–60) A second striking reference to justice is Lear’s imaginary trial of Regan and Goneril in the hovel scene, where there is an explicit reference to Equity, as Lear assigns the Chief Justice’s role to Edgar (disguised as ‘poor Tom’) and the Lord Chancellor’s role to the Fool: ‘Thou robèd man of justice take thy place. / And thou, his yokefellow of equity, / Bench by his side’. Lear also invites Kent to take part in the commission: ‘You are o’ the commission; / Sit you too’. (3.6.36–9) The scene, which depicts a king who accuses his two royal successors of mistreating

London, as described in his two volumes: The Inns of Court under Elizabeth I and the Early Stuarts, 1590–1640 (London, Longman, 1972) and The Rise of the Barristers (Oxford, Oxford University Press, 1986). 2 See Lawrence Stone, The Causes of the English Revolution 1529–1642 (London, Routledge and Kegan Paul, 1972) and Lawrence Stone, The Past and the Present (Boston, Routledge and Kegan Paul, 1981).

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their father, implies the setting of a state trial, with the Chief Justice and the Lord Chancellor sitting together, evoking Mary Stuart’s trial (as noted by Sokol and Sokol).3 Present only in the Quarto edition, the scene is absent in the 1623 Folio. The reasons for its suppression cannot reasonably be imputed to any reluctance on Shakespeare’s part to engage with legal issues, as he does this throughout his work and, as has been noted, considers it to be a legitimate purpose of theatre. The original allusion may yet have assumed a different meaning in the changing landscape of Jacobean rule. The enthusiasm which had greeted the succession of James I and the first years of his reign, diminished as power was increasingly concentrated in the personal prerogative of the King. Few (if any) in the audience at the first performance of King Lear would have imagined that just over 40 years later, their king would actually be on trial for his life. The passages quoted so far suggest general protest, or philosophical interrogation, rather than legal expertise. They make no reference to the issue of inheritance, which is central to the main plot and the subplot of the play. These core legal issues trigger the characters’ complex emotional reactions. If the psychological aspects of the play have been amply discussed by critics, it is fair to say that the socio-legal ones have not, especially in relation to the relevance of Equity in the Court of Chancery. Do the problems of inheritance in the play merely serve to enhance characters’ psychological complexity, or do they also contain a coded debate on ‘the law of writ, and the liberty’? The aim of this chapter is to identify in the play a connection with Equity in the Court of Chancery. At the time King Lear was written, the jurisdictions of the Court of Chancery and the courts of common law were rivals. The conflict between them reached its climax in 1616 and they finally merged only with the Judicature Acts of 1873–75. Before attempting an analysis and possible answers to the questions raised, a brief discussion of two critical outlooks on the inheritance problems posed by the play will help establish a frame of reference.

LEAR’S SUCCESSION In his 2001 essay ‘King Lear, the Kentish Forest and the Problem of Thirds’, Terry Reilly discusses the three legal traditions which he sees as present in the play: English common law, civil law and Kentish Gavelkind.4 Shakespeare’s Earl of Kent, though recalling the character of Perillus in a source for Shakespeare’s play, The True Chronicle Historie of King Leir, is an original creation. His name suggests 3 B J Sokol and M Sokol, Shakespeare, Law and Marriage (Cambridge, Cambridge University Press, 2003) 7. 4 Terry Reilly, ‘King Lear: the Kentish Forest and the Problem of Thirds’ (2001) 26(1)Oklahoma City University L Rev 379. Gavelkind was a regional custom found not only in Kent, but in Wales and East Anglia.

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the county of Kent and specifically the particular inheritance custom in force there, based not on feudal primogeniture, but on pre-feudal ‘Gavelkind’, a form of inheritance providing equal parts for all male offspring. In Shakespeare’s time, Reilly points out, the custom was arousing interest, as a post-feudal, incipient bourgeois society sought to bypass traditional feudal tenures and provide inheritances for all eligible offspring. Reilly quotes from various Tudor and Stuart documents, which cited Kentish Gavelkind and were critical of primogeniture and its treatment of younger sons: an issue already addressed by Shakespeare in As You Like It, in relation to the brothers, Orlando and Oliver. The Kentish forest in Reilly’s title is an allusion to the Forest of Arden in As You Like It, while reference to the dichotomy between Nature (or merit) and Fortune, discussed by Rosalind and Celia, suggests a connection between the comedy of As You Like It and the tragedy of King Lear. In Kent’s assumption of the Latin name Caius (the only Roman name in the play), following his banishment, Reilly sees a possible allusion to the Roman jurist known as Gaius, the author of The Institutes, which formed part of the Corpus Juris Civilis of the Emperor Justinian. Against the background of common law primogeniture, conflicting inheritance customs (such as the Kentish Gavelkind and those of civil or Roman law) surface in the play and influence, according to Reilly, Lear’s dealings with his three daughters. From a common law point of view, inheritance exclusively by daughters would be determined by ‘coparcenary’ or equal portions, but where the Crown was concerned, the eldest daughter would inherit the whole as if a male. As king, Lear should leave all to Goneril, the eldest daughter; instead, he applies a system of inheritance by equal shares, similar to Gavelkind. At the same time, as in Roman law, Lear publicly designates his heirs. According to Reilly, he establishes double ownership with his heirs, which in Roman or civil law would transfer responsibility for the estate from the testator to the heirs, for a specific period of time or until death. Yet Lear’s role as co-owner appears far from obvious in the play. He is completely dispossessed of means, maintaining a mere royal title, after he has passed to his heirs ‘the sway, / Revenue, execution of the rest’. (1.1.136–7) Reilly’s discussion suggests the complexity of the issues at stake, following Lear’s decision to divide his kingdom, while contrasting a feudal aristocracy with an incipient bourgeoisie. But Reilly’s argument, though centred on inheritance, isolates Lear’s case from Gloucester’s and remains inconclusive The same inheritance problem, again isolated from Gloucester’s, is considered on exclusively political grounds by Harry Jaffa, who interprets the play with a historian’s sense of power strategy, in his essay ‘The Limits of Politics: King Lear, Act I, Scene 1’.5 For Jaffa, the split between love and politics is the core of the problem, as Cordelia fails to accept her father’s well-devised inheritance project and disrupts

5 H Jaffa, ‘The Limits of Politics: King Lear, Act I, Scene 1’ in A Bloom, Shakespeare’s Politics (New York, Basic, 1964).

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its subtle scheme and substantial advantages. Defined as ‘the greatest of Shakespeare’s kings’, far from being a foolish and failing old man (or belonging to an improbable and inconsistent setting, as he does respectively for Tolstoy and Bradley)6, Lear commits no ‘monarchical folly’ when he divides a united kingdom and anticipates his succession. Neither does he choose to abdicate, but rather to maintain his title as king and simply to part, in his own words, a coronet in three: the coronet being a symbol of ducal authority. He does so to provide a balanced division of the realm, based on a skilful weighting of the ensuing forces for power. Proof of the delicate balance Lear attempts to achieve is his delay in bestowing dowries on his already married daughters, in order to establish all dowries at the same time, when Cordelia marries. Referring to Holinshed’s Chronicles, another source of the story, the part assigned to Cornwall and Regan appears to represent the South, while the land assigned to Albany and Goneril is the North, the middle being allotted to Cordelia. Cordelia’s ‘more opulent’ third of the realm is where Lear himself apparently intends to live with his beloved daughter. Since Cordelia’s husband would be a foreigner (either Burgundy or France: traditional enemies of each other), her dowry would be an important element in the power balance between the two men. Lear has already chosen Burgundy, the lesser power, to whom he offers first choice. Jaffa’s argument is revealing but limited. In his view, when Cordelia upsets her father’s plans, Lear feels betrayed both politically and emotionally, as his monarchical perspective implies that love for him is a proper test of merit in others. Siding with Lear, Jaffa is disturbed by Cordelia’s naive and ethically intransigent reaction to her father’s plan. In his persuasive comments, Jaffa mentions the case of Mary Tudor and what he calls her ‘Burgundian marriage’ to Philip II. After their marriage, he was nominally king of England, but she alone exercised the powers of the sovereign.7 This fact brings to the fore a central problem, which Jaffa avoids. As Cordelia clearly understands, Lear intends a political marriage based on substantial separation from her foreign husband while she reigns as queen, in England, by her father’s side. Lear is trying to ‘appropriate’ his daughter, regarding her as his future widow and denying her the right to have a real husband or form an ‘elective couple’. This is precisely what she reacts to, insisting on her natural right to love her future husband. The revealing linguistic mark of Lear’s intention lies in the exchange of the legal terms ‘dower’ and ‘dowry’, often noticed, but usually considered just a lack of

6 For Tolstoy (in ‘Shakespeare and the Drama’, written in 1903 as an introduction to a pamphlet by Ernest Crosby, Shakespeare and the Working Classes), Lear is an old man in decay, Cordelia a stubborn daughter, the play unbearably nihilistic. For AC Bradley, in his Shakespearian Tragedy (London/Basingstoke, MacMillan, 1904) the improbabilities in King Lear far surpass those of the other great tragedies in number and in grossness, and are particularly noticeable in the secondary plot (at 210). 7 The English Parliament refused to grant Philip the title of King, recognising him only as Prince Consort.

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precision on Shakespeare’s part. Shakespeare, far from being confused in his linguistic or legal choices, is deftly exploiting the ambiguity to expose Lear’s underlying psychological motivation. Referring to Cordelia, Lear uses the word ‘dower’, properly a widow’s inheritance, rather than ‘dowry’, a marriage gift to a daughter. But France makes no mistake in his answer to Lear when he defines Cordelia, from his own point of view, ‘herself a dowry’. (1.1.241) France later repeats Lear’s word, but now he ironically quotes him: ‘Thy dowerless daughter, King, thrown to my chance, / Is Queen of us, of ours, and of our fair France’. (1.1.256–7) Shakespeare’s language, far from being inaccurate, conveys his true intention: Lear is thinking of Cordelia as his future widow, not as a daughter destined to become somebody else’s wife. Shakespeare’s deliberate ambiguity conveys Lear’s unconscious underlying desire, which is stubbornly denounced by Cordelia. Lear’s violent reaction to Cordelia’s denial to compete with her sisters in words of love for him is the reaction of a tyrant. He remains unrepentant, even when asked by Kent to be less severe. Obsessed with his royal identity and his boisterous retinue, Lear also abuses Oswald, debasing him as a ‘slave’ (1.4.51), and is imitated to an exaggerated degree by Kent (2.2), who mirrors Lear’s obsessive sense of his royal status. Regan’s and Goneril’s aggression towards their father is, in a sense, a response to Lear’s ‘pride of heart’ (3.4.53), which is repeated in Edgar’s self-accusations of excessive pride and in the verbal assaults he exchanges with Oswald. Lear’s fixated sense of the master-servant relationship and his insistence on the word ‘slave’ denotes a need for total control and subjugation. The divine right theory of kingship placed the king, as God’s anointed lieutenant, above the law. The constitutional debates concerning the limits, if any, to the lawful power of the king, were central to the reign of James I. Ideologically, Lear’s attitude recalls the problem of pleonexia (greed, covetousness or avarice) in Plato’s Republic and his plan for the ideal city, or Kallipolis. Pleonexia is for Thucydites a ‘necessary nature’ (physis anankaia), urging man to exercise violence to attain power. It represents an innate yearning to prevail and gain victory and glory. In Book II of Plato’s Republic, Glaucon states that everyone by nature yearns to exercise pleonexia, while equality is a constraint willed by the weak to protect themselves. Linked to an aristocratic and military ideology, both in ancient Greece and in Renaissance thought, pleonexia is a fundamental obstacle to liberty in Plato’s ideal state, which Socrates thinks can be overcome only through an appropriate education. The problem of ‘justice and liberty’ thus comes to the foreground, as it does in Shakespeare’s first definition of the purpose of theatre in Hamlet, ‘the law of writ, and the liberty’. In King Lear, Lear must turn from king to man and from pleonexia to love, in order to be reconciled with Cordelia, who inherits Rosalind’s role in As You Like It, re-educating not her future husband but her distracted father, while at the same time advocating the ideology of the elective couple, instead of her father’s proposed dynastic union. It is evident that a line of thought connects King Lear

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with As You Like It, which, in recent essays, I have discussed not as a pastoral play, but a manifesto of what Stone has called the ‘Country Ideology’, attached to part of the rising gentry.8 Referring to the ethical superiority of an ideal country life as opposed to the intrigues of the court, evoking Virgil’s Georgics rather than the Aeneid, this bourgeois ideology extolled learning, acquisitiveness and the idea of the elective couple, while deriding the privilege of aristocratic birth, dynastic marriage and patriarchal dominance. Cordelia’s rebellion against Lear has much in common with Celia’s revolt against her father in As You Like It. Cordelia finally succeeds in re-educating Lear, so that in the prison scene he expresses a wish for life far removed from the court. The ‘Country Ideology’ was shared by the Earl of Essex, who, as Trevor-Roper noted,9 sought alliance with the ascendant gentry against his political rivals, the Cecils. It proved to be a fatal quarrel, culminating in the Essex Rebellion and the execution of the Earl. As for the Earl of Southampton, Shakespeare’s patron, he probably shared Cordelia’s repulsion for the custom of dynastic marriages, as he preferred to pay £5,000 to avoid the marriage proposed on his behalf by his guardian, Lord Burghley.10 Shakespeare’s ‘Country Ideology’ and Lear’s re-education by Cordelia are antithetical to the traditional aristocratic model and to absolute monarchical power, justified as providential, and manifesting itself as the royal prerogative. Lear’s acute sense of his absolute authority and Kent’s corresponding absolute loyalty do not appear as ‘providential’ at all in the play, the dark political outcome of which suggests denial of such a perspective. Correspondingly, as an individual, Lear must turn from hubristic king to man and father, accepting Cordelia’s lesson, and confirming the anti-patriarchal ideology, originally promoted by Celia and Rosalind in As You Like It.

8 Stone, Causes of the English Revolution, n 2 above, ch 3. On Shakespeare and ‘Country Ideology’, see G Restivo, ‘Country Time As She Likes It: the Country Ideology and the New Gentry in Shakespeare’s As You Like It’ in P Kennan and M Tempera (eds), International Shakespeare: the Comedies (Bologna, CLUEB 2004) 41–73; and G Restivo, ‘Shylock and Equity in Shakespeare’s The Merchant of Venice’ in D Carpi (ed), The Concept of Equity: an Interdisciplinary Assessment (Heidelberg, Universitäts Verlag Winter, 2007) 223–49. 9 H Trevor-Roper, ‘The Gentry, 1540–1640’ in The Economic History Review Supplements (London/New York, Cambridge University Press, 1953) 32. 10 See J Hurtsfield, The Queen’s Wards: Wardship and Marriage under Elizabeth I (London, Longmans Green, 1958) 142, as reported in Sokol and Sokol, n 3 above, at 45. Sokol and Sokol explain the legal institution of the ward and the patriarchal and vexatious but lucrative aspects, related to the marriage of wards.

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EDMUND, MONTAIGNE AND THE MISSING TRUSTS Far from introducing too much material to the tragedy, as Bradley lamented, Gloucester’s story integrates Lear’s, giving it clearer orientation and a broader, more explicit ideological basis.11 The Gloucester subplot in King Lear raises further inheritance problems and crucial legal issues. The contraposition of the Earl of Gloucester’s two sons, Edgar and Edmund, introduces the legal problem of the bastard, in relation to the legitimate son and heir; it also raises problems concerning primogeniture. Edmund denounces his legally destitute condition, as both second son and illegitimate offspring: ‘Why brand they us / With “base”? With “baseness”? “bastardy”? “base, base”?’. (1.2.9–10) As a bastard, Edmund is ambivalently treated by his father, who provides for him and his education, likes him as much as his legitimate son and is even, to a certain extent, proud of him. But in social terms, Gloucester is ashamed of him, calling him a whoreson; contemptuously disparaging his mother, alluding to what he calls the fine sport he had in begetting him; and keeping him far away from home as much as possible. As a second-born son, Edmund could not in any case inherit what primogeniture conferred on Edgar alone, while as an illegitimate son he has no social status. The solution Edmund conceives (contriving a letter of revolt against his father, which he falsely attributes to Edgar and shows to Gloucester) provokes his father’s violent reaction, which cuts off Edgar from home, social position and inheritance and offers Edmund the opportunity to take his brother’s place as heir-presumptive. A perfect villain in his fearless and cruel duplicity, Edmund nonetheless produces cogent reasons for his actions. His reasons evoke the arguments which lie at the centre of Montaigne’s essay, De l’affection des pères aux enfants, the influence of which (in Florio’s translation) on King Lear has been noted by several critics,12 but here requires further

11 In Shakespeare Our Contemporary (New York, Norton, 1974), Jan Kott emphasises only the grotesque aspects of human relationship in the play, comparing King Lear with Beckett’s Endgame and Godot, in terms of ‘absurdity’. Harold Bloom, in Shakespeare, the Invention of the Human (London, Fourth Estate, 1998) 476–515, shares both the recurrent idea of a play more apt for reading than staging and the emphasis on the ‘ingratitude theme’. He sees in Lear a man ‘all-feeling’, opposed to Edmund, the coldest character in all Shakespeare, who appropriately never exchanges words with Lear throughout the play. Lear’s paternal love seems to Bloom paramount: his death the death of Authority as the Father/King/God figure, not patriarchal but akin to Solomon. Even Paul Kahn, in Law and Love: the Trials of “King Lear” (New Haven/London, Yale University Press, 2000), who might have been expected to be more legally and politically oriented, stresses the conflict between law and love, corresponding to an opposition between the Judaic and the Christian traditions. In his view, by dividing his kingdom into three parts, but basing this partition on his daughters’ love for him, Lear tries to replace the political unity of the state, represented by his mystical political body, with a unity in love rather than in law. 12 See in particular, L Salingar, ‘King Lear, Montaigne and Harsnett’ in Dramatic Form in Shakespeare and the Jacobeans (Cambridge, Cambridge University Press, 1986) 107–39 and WB Henderson’s articles on Montaigne’s influence on King Lear in Shakespeare Association Bulletin (Oct

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consideration. Montaigne stigmatises the relationships between children and their ageing fathers who, anxious not to lose their patriarchal power, often spoil their sons’ young adulthood and thwart their personality, by imposing constraints, to the point of cruelty and injustice. These arguments are clearly recognisable in Edmund’s forged letter: ‘This policy and reverence of age makes the world bitter to the best of our times, keeps our fortunes from us till our oldness cannot relish them. I begin to find an idle and fond bondage in the oppression of aged tyranny’. (1.2.46–50) Critical of tyrannical fathers, Montaigne defends their children’s rights, advocating the use of parental discretion and the progressive transfer to the children of means and responsibility, according to their actual capacities. Above all, inheritance should not be deferred until the death of the father. At the same time, it is a wise father who avoids irreversible loss of control. In fact Montaigne, while recommending what Lear does (a deliberate transfer of powers), warns against the serious mistake that Lear makes, the total loss of control: As for mee, I deeme it a kind of cruelty and injustice, not to receive them into the share and society of our goods, and to admit them as Partners in the understanding of our domestical affairs (if they be once capable of it) and not to cut off and shut-up our commodities to provide for theirs, since we have engendred them to that purpose … It is not to be said, that they have anything given them by such a way of obligation, which a man may not recall againe: I, that am ready to play such a part, would give over unto them the full possession of my house, and enjoying of my goods; but with such libertie and limited condition, as if they should give me occasion, I might repent myself of my gift, and revoke my deed. I would leave the use and fruition of all unto them, the rather because it were no longer fit for me to weald the same … it must be a great contentment to an aged father, himselfe to direct his children in the government of his houshold affaires, and to be able whilst himselfe liveth, to checke and controule the demeanors.13

Edmund’s denunciation of Edgar evokes Montaigne’s central point, but he unjustly and falsely attributes to Edgar a contemptuous and disparaging attitude towards his father: ‘I have heard him oft maintain it to be fit that, sons at perfect age and fathers declined, the father should be as ward to the son, and the son manage his revenue’. (1.2.72–5) As a ward’s position could apply either to underage orphans or to owners unfit to control their estate, its mention here is obviously intended to hurt Gloucester, yet the transference of management and

1939 and Jan 1940). Salingar sees Montaigne’s extensive influence over King Lear as sustaining marginal ‘theoretical’ commentaries rather than action, promoting memorable passages on general truths, which are ‘like essays in miniature, speculative and sententious’ (at 132). Tetsuo Anzai’s monograph, Shakespeare and Montaigne Reconsidered (Tokyo, Renaissance Institute, Sophia University, 1986), considers Montaigne’s influence on King Lear in terms of general philosophical attitudes (at 31–47). 13 John Florio’s translation of Montaigne, Essays (New York, Dent, Everyman’s Library, 1980) 68–9, 74.

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revenue to the next generation is substantially what Montaigne suggests, and also what Lear contrives, but in disastrous fashion. The above passage lies at the core of the dual plot in the play, as it discloses its central legal subject: transfer of patrimonial responsibilities to the younger generation. At the same time, its allusion to wardship recalls the real and oft-quoted Annesley case,14 so obviously linked with the play as to be listed in its sources, yet usually not associated with Montaigne’s essay. In October 1603, Bryan Annesley, Pensioner of Queen Elizabeth, living in the county of Kent, was senile and unfit to govern himself or his estate. Two of his daughters, Grace Annesley, married to Sir John Wildgoose, and Christianna, married to Lord Sandys, tried to have him certified as insane. His unmarried and youngest daughter, named Cordell, wrote to Robert Cecil (Master of the Wards) to ask that their father be spared the dishonour of being registered as a lunatic, and obtained judgment that he and his estate be put under the care of Sir James Croft. When, in 1604, Annesley died, Grace and Christianna contested the will, which, in spite of the Kentish Gavelkind, left almost the entire estate to Cordell. The will was upheld by the Court of Chancery, Thomas Egerton being the Lord Chancellor. In 1608 Cordell married Sir William Harvey, the stepfather of the Earl of Southampton, Shakespeare’s patron. Points of contact with Shakespeare’s play, such as Cordell’s name, her contraposition to her two sisters, and the father’s insanity (not to be found in other sources) are evident but, while in Annesley’s case wardship during his lifetime was a legitimate solution and later his inheritance was regulated at Chancery, in Gloucester’s as in Lear’s case, no wardship would be considered, neither father being unfit to govern himself or his estate. For both Lear or Gloucester an alternative solution would have been a trust, under which they would have retained some discretionary power, as recommended by Montaigne, passing their children administration and revenues, but not ownership, also maintaining testation rights (see here later Oliver’s case in Shakespeare’s previous play As You Like It: he allows his younger brother Orlando to administer his own estate and enjoy his own revenues, but keeping for himself title and hereditary rights for his own descendants). Law experts in the audience would have reflected on such possible use of trusts, as on the different treatment of illegitimate offspring by the rival jurisdictions of civil law and common law. Put simply, civil law recognised the hereditary rights of illegitimate children, while common law did not. Common law, as Raffield has amply argued, asserted itself as a utopian vision with a social and moral aim, promoting itself as pure natural reason, tested by ancient custom and reflecting God’s will and design. In De Laudibus Legum Angliae, Fortescue insists that by recognising the hereditary rights of illegitimate offspring, civil law encouraged fornication, while English common law cast out sin

14 C.J Sisson, ‘Justice in King Lear’ in F Kermode (ed), Shakespeare: King Lear, Casebook Series (London, Macmillan, 1969) 228, 230.

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to establish virtue,15 confirming moral superiority over the French civil law system .16 As Raffield observes, the English legal community at the Inns of Court presented plays and masques, at the Inns and the royal court, which disseminated the ideology of common law. The earliest full-length Elizabethan tragedy, The Tragedie of Gorboduc (also known as The Tragedie of Ferrex and Porrex), written by two lawyers, Thomas Norton and Thomas Sackville, was performed at the Inner Temple in 1561, in the presence of Elizabeth I. The plot is similar to that of King Lear: a king abdicates and distributes his kingdom, in his own lifetime, equally between his two sons, Ferrex and Porrex. As with Lear, the consequences are disastrous. Evoking both Montaigne and Annesley’s case and indirectly suggesting (at least to ‘the judicious few’) the missing trusts, Edmund appears to play an ambivalent role. On the one hand his first words, in Act I scene 2, are an appeal to Nature, his goddess and law (like Cordelia’s protest against her father in 1.1.91–104, based on her natural bond to him and her natural right to marry). At the same time, notwithstanding his Machiavellian intrigues, which deceive not only his brother and father but also Regan and Goneril, the denunciation by Edmund of his diminished legal status is a rational and convincing argument. Finally, vanquished in combat by his brother, Edmund’s conscience turns to Cordelia, whom he vainly tries to save by rescinding his own order to kill her. This moral ambivalence distinguishes Edmund from other Shakespearean ‘villains’, such as Richard III, Macbeth and Iago, who never regret their misdeeds. In many respects, Edmund corresponds to the son in Montaigne’s essay, who, invited by Montaigne to redeem himself, answers that ‘only by the rigor and covetise of his father he had beene forced and driven to fall into such lewdness and wickednesse.17 Edmund’s ‘natural merit’ argument, evoked earlier, and Montaigne’s ‘thwarting tyranny’ outlook anticipate Daniel Kornstein’s comment in Kill All the Lawyers?: ‘Nurturing his deep hurt, Edmund feels himself entitled to revenge for the wrong committed against him … And yet for all his unpleasant qualities, Edmund, thanks to Shakespeare, makes a poignant lament not unlike Shylock’s “Hath not a Jew eyes?” speech’.18 The “Why bastard?” passage then appears to indicate that Edmund is perhaps, after all, more sinned against than sinning. But there is still more to Edmund’s role in the legal debate on inheritance, implicit in the play, which refers us back to the Chancery, and to the Jacobean Chancellor, Thomas Egerton. Appointed Master of the Rolls (the senior judge in Chancery) in 1594, and Lord Chancellor in 1598, Egerton was a man of merit appreciated by Queen Elizabeth. His career

15 See Paul Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (Cambridge, Cambridge University Press, 2004). 16 John Fortescue, De Laudibus Legum Angliae, 93, quoted in Raffield, n 15 above, at 53. 17 Montaigne, n 13 above, at 69. 18 D Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton, Princeton University Press, 1994) 220–1.

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was surprising, given that he was illegitimate: he was a ‘successful bastard’, whom providence had not disfavoured. In his study on The Elizabethan Court of Chancery, Jones defines Egerton as ‘a legend’19 and ‘a figure of commanding importance’,20 yet describes him as ‘constantly concerned with his self-made status and bastard origins’; distressed, even at the height of his career, by the aspersions of scandal-mongers and disparaging references to his mother, Alice Sparke.21 Egerton was known to have ‘had an affection for the Earl of Essex which remained until the end’, although the Queen thought him to be disinterested in the rivalry between the Cecil and Essex factions. Reappointed as Lord Chancellor by James I in 1603, he later became Lord Ellesmere, and was Edward Coke’s antagonist in the crucial legal reform of 1616. It is notable in the context of this chapter that, while Egerton’s eldest son Thomas died debt-ridden in Ireland, his surviving son John ‘took over the management of his father’s rich estates and private business’: a Montaigne-like solution for the overburdened Lord Chancellor, whom Jones describes as ‘very much a representative of the new propertyconscious morality’.22 Gloucester’s illegitimate son Edmund, protesting that his natural qualities and personal merits are spoiled by his illegitimacy, advocates a similar solution for his father’s estate. Not only might Edmund’s argument have appealed to Montaigne’s readers; it might have had the same effect on those who were sympathetic to Egerton. A noteworthy detail is that Chancellors were usually on familiar terms with the Master of the Court of Wards and Egerton ‘developed a particular regard for Robert Cecil’.23 A further interesting detail quoted by Jones is that Egerton developed a desire to retire to the country and an aversion for London,24 which might imply some sympathy for the ‘Country Ideology’. As for his antagonist, Edward Coke, he did not strive to assert the rights of the elective couple, nor did he comply with the standards of Montaigne’s ideal father. He forced both his second wife’s daughter from a previous marriage and then his own daughter, Frances, to marry suiting his own interests. Frances in particular, was married to Sir John Villiers, the weak-minded brother of King James’s favourite, the Duke of Buckingham, in order to regain royal favour, after his dismissal in 1616 as Chief Justice of the King’s Bench.25 One more observation might be made regarding Egerton’s phantasmal presence in King Lear. Kornstein has noted the coincidence of Edmund’s name with that of Edmund Lambert, the plaintiff in the protracted litigation which involved Shakespeare’s father John, and then William himself, and finally deprived William 19 20 21 22 23 24 25

WJ Jones, The Elizabethan Court of Chancery (Oxford, Clarendon Press, 1967) 63. Ibid 79. Ibid 63. Ibid 93, 95, 98. Ibid 385. Ibid 95. See Sokol and Sokol, n 3 above, at 31–2.

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of his inheritance.26 In 1580, John Shakespeare became embroiled in a lawsuit with his brother-in-law, Edmund Lambert, which lasted for 20 years. Its origins lay in the loan of £40 by Lambert to John Shakespeare, who mortgaged 44 acres of land at Wilmcote, brought in dowry by John’s wife. Upon expiry of the mortgage, Edmund refused the £40, demanding that John also paid him his other debts, and claiming default. Litigation was resumed in 1588–90 by John, attempting to win back William’s inheritance. A settlement had been reached, but the case was re-opened in 1599 by William, who sued Edmund’s son in Chancery, in the vain hope of a better result in Equity than at common law. He was denied access to the remedy he had sought in Chancery and finally lost his mother’s land. During this time, Lord Chancellor Egerton started an extensive programme of legal reforms in Chancery and also resisted the appointment to Chancery of corrupt officials. This was reflected in Shakespeare’s attacks in King Lear against judicial corruption, echoing perhaps specific cases, personal experience, or even Egerton’s actions. It is at least conceivable that in Shakespeare’s case the creation of a trust might have saved his inheritance. A biographical root might provide a personal source for the recurring obsession, both with loss of inheritance and trusts in the plays of Shakespeare, especially in The Merchant of Venice, As You Like It and King Lear. In neither The Merchant of Venice nor As You Like It does comedy turn into tragedy, as divisive social problems are solved thanks to the use of trusts, while in King Lear the missing trusts turn the double plot into a double tragedy. In this sense, in the eyes of the ‘judicious few’, the issue of trusts is central to the themes of the three plays, inviting a comparison between the respective remedies applied to inheritance and property problems at common law and equity.27 In The Merchant of Venice the trial scene ends by resorting to forms of trust or ‘use’ that save the lives of both plaintiff and defendant, while at common law both litigants would have perished in two subsequent trials.28 In As You Like It, the same distributive and compensatory logic of equitable trusts appears in the final scene of the Orlando/Oliver dispute, when the two brothers are reconciled. Oliver has twice tried to kill his brother and Orlando has escaped into the forest. Later, a penitent Oliver puts an end to their dispute by applying ‘self-justice’ in the form of a ‘Chancery trust’ in favour of his brother. He renounces his estate and confers on Orlando both the use of the family seat and all the revenue that had been their father’s, but he keeps the title and property of the land for his own descendants (‘all the revenue that was old Sir Rowland’s will I estate upon you’:

26

Kornstein, n 18 above, at 16–17. This does not mean that Shakespeare was kindling conflict between Equity and common law jurisdictions, but that personal experience made him aware of the useful remedies Equity could provide. So far interpretation of Equity in the plays of Shakespeare has often been restrictive, as in BJ Sokol and Mary Sokol, ‘The Merchant of Venice and the Two Texts of King Lear’ (1999) 200 Review of English Studies 417. 28 M Andrews, Law v. Equity (Colorado, University of Colorado Press, 1965). See also, Restivo, ‘Shylock and Equity’, n 8 above. 27

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(5.2.7–8) The penalty Oliver imposes on himself for his attempts on Orlando’s life is the same as that imposed on Shylock for his attempt on Antonio’s life: the use of equitable trusts, covering the would-be killers’ whole estates, conferred in favour of the intended victims, while sparing the offenders’ hereditary lines. Shakespeare’s recurrent equitable ethics in The Merchant of Venice and As You Like It reveal the author’s long-standing interest in equitable solutions, implicitly evoked again in King Lear. Not only Montaigne (who was a lawyer and remained critical of contemporary justice in his country), but also Essex, Southampton, Egerton and Coke probably figured in Shakespeare’s imagination and in the audience’s response to King Lear. The play implies a rich ideological debate, readable under the surface of Leir’s old legend: in Shakespeare’s play the legend has become an ‘abstract and chronicle of the time’, honouring Polonius’s description of the players, ‘for the law of writ and the liberty these are the only men’.

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V

Violence, the State and the Citizen

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11 Punishment Theory in the Renaissance: the Law and the Drama HARRY KEYISHIAN

DDRESSING THE JUSTICES of the Peace whom he was training for office in 1579, William Lambard (antiquarian, Member of Parliament for Lincoln’s Inn, and Justice of the Peace for Kent) set forth the four functions of legal punishment: first, ‘for the amendment of the offender’; second, ‘for example’s sake, that others may thereby be kept from offending’; third, ‘for the maintenance of the authority and credit of the person that is offended’; and fourth, for the purpose of ensuring public safety, ‘that (wicked men being taken away) the good may live in better security’.1 Lambard was expressing his version of what we today call punishment theory, the principles and aims that justify the practice of imposing unpleasant consequences upon those who break laws. His list reflects what are now called ‘utilitarian’ concerns, aiming to influence present and future social behaviour. ‘Amendment’, which Lambard mentions first, conforms to the modern notion of ‘rehabilitation’, which later reformers like Cesare Beccaria and Jeremy Bentham were to champion as the most appropriate, effective and moral function of punishment. The logic of reformation is that only so much pain should be inflicted upon a wrongdoer as is needed to induce a change of heart and behaviour, and no more. Lambard’s concern with ‘Example’ invokes our modern idea of deterrence, both the individual kind, which is aimed at changing the behaviour of actual offenders, and the general kind, aimed at the public at large. Deterrence concerns itself with behaviour, not with penitence or morality. It assumes that those who have been punished for breaking laws, or have seen others punished for doing so, will make the rational calculation that their interests are best served by obeying them. It does not inquire into the state of their souls. 1 William Lambard, Eirenarcha: or Of the Office of the Justices of the Peace (Clark, NJ, The Lawbook Exchange Ltd, 2003 (1581)) 67.

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Lambard’s third justification of punishment, to vindicate the honour of the person offended, sounds a less familiar note with us. It returns us to the very origins of criminal law, that decisive turn in social history when the state establishes itself as the only legitimate source of criminal justice and ends the primitive system of feud and composition. Society promises to avenge those it has been unable to protect, freeing its members from both the privilege and responsibility of avenging injuries they have suffered. The fourth of Lambard’s justifications serves to preserve the peace by containing socially toxic behaviour, since the thief or murderer who is incarcerated cannot afflict the public at large. The concept of using terms of imprisonment in ‘houses of correction’ as a method of punishment was establishing itself in the sixteenth and seventeenth centuries, based in part on this concern. Lambard, an educated jurist with good historical knowledge, means for judges to be pragmatic and result-oriented, to serve the good of the commonwealth, legitimate state power, and affirm the social contract. His theory offers a comfortingly ‘sensible’ view of the ideal relationship between behaviour and consequences. My interest here is both in Renaissance ideas about legal punishment and the ways in which Shakespeare deals with the matter of punishment. I want to show, first, that Shakespeare was familiar with contemporary legal theories of punishment and that he articulated them in his plays. Secondly, I want to explore some of the ways that Shakespeare incorporated principles of punishment into his plays. The first task is easy, especially in such works as The Merchant of Venice and Measure for Measure, which dramatise conflicting ideas about the aims of punishment. The second is more difficult, complicated by the differences between the conventions of law and drama. For while it was the business of Renaissance law to systematise and rationalise ideas about punishment, it was the business of playwrights not only to apply, employ and elaborate on those ideas, but also to unpack, flout and sometimes annul them. As Karen Cunningham points out, prosecutors in early modern trials aimed to establish ‘a definitive point of view’2 to justify fierce and painful sentences. Plays, on the other hand, offer what have been called ‘alternative criteria’ for and ‘an alternative structure of justice’; they can function as ‘counterlaw’.3 They represent ‘an imaginative sphere removed from the literal representation [of law]’ and therefore may ‘address great metaphysical issues’.4 Law attempts to draw the straightest of lines between deeds and consequences; drama relishes the discrepancies between them. Still, I want to argue, we better understand the ways judgements operate in drama if we play them off against the standards and practices of the law. To

2 Karen Cunningham, Imaginary Betrayals (Philadelphia, University of Pennsylvania Press, 2002) 1. 3 Subha Mukerji, ‘Jonson’s The New Inn and a Revisiting of the “Amorous Jurisdiction”’ (2006) 18(2) Law and Literature (Summer). 4 William M Hawley, Shakespearean Tragedy and the Common Law: the Art of Punishment (New York, Peter Lang, 1998) 1.

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demonstrate this, I need to engage a genre distinction—between comedy and tragedy—and a judicial distinction—between the functions and philosophies of common law courts and Equity courts in Shakespeare’s day. I suggest that the utilitarian line of thought outlined by Lambard, above, best suits Shakespearean comedy, while the competing legal theory of retribution (of which more later) informs tragedy. As both comedy and tragedy reveal discrepancies between deserving and punishment, they engage the ongoing Renaissance legal controversy between advocates of positive law—of strict adherence to precedent—and advocates of equity—loosely, of judicial discretion. In general, characters in comedy suffer less than they should, while characters in tragedy suffer more. And yet both sorts of plays provide closure, a feeling of fitness, a sense of satisfaction with the things ‘worked out’. I contend that we will better understand this apparent paradox by setting Shakespearean notions about punishment against the ongoing debate about how the law should operate in determining appropriate sentences.

RENAISSANCE UTILITARIANISM Rehabilitation is on the Duke’s mind in his concern for Claudio’s and Juliet’s spiritual state in Measure for Measure. He tries to purify the mind of the former by reconciling him to his coming execution, while the latter—a model prisoner— actively embraces her punishment, accepting her ‘shame with joy’. (2.3.35–6)5 Of Pompey Bum, on the other hand, the Duke observes that ‘correction and instruction must both work / Ere this rude beast will profit’ (3.2.32–3)—though of course they don’t. The newly crowned Henry V has rehabilitation in mind when he promises Falstaff social advancement ‘As we hear you do reform yourselves’. (5.5.68–70) Rehabilitation seems to have worked in the case of Caliban, who, following Prospero’s punishments, vows to be ‘wise hereafter / And seek for grace’. (The Tempest, 5.1.295–6) The spirit of rehabilitation best suits the mood of romantic comedy and romance. Because, as Northrop Frye writes, ‘The tendency of comedy is to include as many people as possible in its final society’, the theme of conversion is one of its ‘fundamental principle[s]’.6 Falstaff ’s rehabilitation is perhaps achieved in The Merry Wives of Windsor when he surrenders to the judgment of the Pages and Fords. ‘Use me as you will’ (5.5.163–4), he says to the community he has offended. King Leontes, punished by his son’s death for defying Apollo’s judgment, experiences instant rehabilitation: ‘Apollo, pardon / My great profaneness 5 Citations are to GB Evans (ed), The Riverside Shakespeare (2nd edn, Boston, Houghton Mifflin Company, 1997). 6 Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, Princeton University Press, 1957) 165–6.

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‘gainst thine oracle!’. (The Winter’s Tale, 3.2.153–4) Paulina, his main accuser, testifies that Leontes is ‘touch’d / To th’ noble heart’. (3.2.221–2) Though Leontes’s suffering is extended far beyond his rehabilitation, at the play’s end, his welldeserved losses—except of Mamillius—are restored. Several of Shakespeare’s characters have their punishments commuted even without rehabilitation, among them the incorrigible Barnardine (from Measure for Measure) and Antonio and Sebastian from The Tempest. Some characters have rehabilitation thrust upon them: Autolycus, trying hard always to do the wrong thing and anticipating deserved punishment for it, receives instead a flood of good fortune and social respectability. The genre he inhabits rewards him: its overriding value is social integration, not retribution. The judge (or god) fills the gap between deserving and punishment with a becoming magnanimity, mercy being, as Portia says, ‘an attribute to God himself ’. (The Merchant of Venice, 4.1.195) Deterrence, though appearing second in Lambard’s list, was in fact the most often cited justification for legal punishment in Renaissance law. Lambard himself advises that ‘by taking punishment upon such as be here, we shall either withdraw or warn others that be in danger of the same contagion’.7 For Francis Bacon, ‘All Punishment is for Examples sake’8 and penal laws are ‘meant for terror’.9 For Edward Coke, ‘The principal end of punishment is, that others by [the criminal’s] example may fear to offend’. Coke objects to the execution of madmen not only because it makes ‘a miserable spectacle, both against law, and of extreme inhumanity and cruelty’, but also because it ‘can be no example to others’.10 It is the breakdown of deterrence, general and particular, in Vienna that motivates the Duke to turn judicial power over to Angelo. Though the city has ‘strict statutes and most biting laws’ (Measure for Measure, 1.3.19) on its books, they no longer induce ‘terror’ or ‘fear’ because they have not been enforced. Angelo ascribes the prevalence of crime in Vienna to this lapse: ‘Those many had not dar’d to do that evil / If the first that did the edict infringe / Had answered for his deed’. (2.3.134–6) Whereas rehabilitation best suits the spirit of romantic comedy, deterrence seems most natural to satire, which holds up to shame and ridicule those that offend good taste and decorum. Philip Sidney pointed out the salutary effect of stage comedies which, by representing ‘the common errors of our life . . . in the most ridiculous and scornful sort that may be’, make it

7 ‘Charge to the Jury for Rogues’ (1583) in Conyers Read (ed), William Lambarde and Local Government (Ithaca, NY, Cornell University Press, 1962) 174. 8 Francis Bacon, The Use of the Law (London, John Moore, 1630; reprint: New York, De Capo Press, 1969) 4. 9 Francis Bacon, Selected Writings (Hugo C Dick (ed), New York, The Modern Library, 1955) 140. 10 Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning High Treason and Other Pleas of the Crown and Criminal Causes (London, W Clarke and Sons, 1817) 4.

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‘impossible that any beholder can be content to be such a one’.11 Malvolio and Sir Andrew Aguecheek (in Twelfth Night) stand as effective portraits of narcissism and self-deception. Lambard’s third point, that the state has a role in vindicating individuals who have suffered injury, strikes an odd note for us: today people are tried criminally for breaking a law, not for offending an individual. But in an era where dueling among aristocrats was common, it was important for the state to assert its exclusive right and responsibility of maintaining public order and obviating the need for personal revenge. The victim requiring the most spectacular vindication was the monarch who, alone in the state, had the right of vengeance. The person adjudged of committing treason has, as Michel Foucault says, ‘touched the very person of the prince’. Execution for such a capital offence is ‘a ceremonial by which a momentarily injured sovereignty is reconstituted’.12 Henry V characterises the treasonous actions of his intimate, Lord Scroop, ‘another fall of man’. (Henry V, 2.2.142) But a commoner like Isabella, too, can demand to be heard by the Duke and to have the right of ‘justice, justice, justice, justice!’ (Measure for Measure, 5.1.25) In Shakespeare, of course, dramatic conflict mostly derives from the failure of the state to vindicate individuals. In the most extreme cases, as King Claudius points out, ‘Offense’s gilded hand may shove by justice’. (Hamlet, 3.3.58) But kings may also fail to do justice simply by neglect. Bolingbroke complains that the laws of England have not protected the property of his father, which should rightly have descended to him at death. Instead, the king’s favourites, Bushy and Green, ‘have fed upon my signories, / Dispark’d my parks, and fell’d my forest woods’. (Richard II, 3.1.22–4) Unsupported by law, Bolingbroke takes matters into his own hands: ‘Attorneys are denied me, / And therefore personally I lay my claim / To my inheritance’. (2.3.134–6) The failure of the state (in this case, the monarch) to hold up its end of the social contract has dire consequences, as Lambard might have predicted.

SEEKING RETRIBUTION Oddly absent from Lambard’s utilitarian list is any explicit endorsement of retribution. And yet retribution is to be found everywhere in Renaissance culture—in religious thought, in literature, and certainly in the law, embedded in

11 Sir Philip Sidney, An Apology for Poetry: Elizabethan Critical Essays (G Gregory Smith (ed), London, Oxford University Press, 1904) 176–7. 12 Michel Foucault, Discipline and Punish: the Birth of the Prison (Alan Sheridan (trans), New York, Pantheon Books, 1977) 48.

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such forms and ancient habits of mind as the lex talionis.13 The passion for retribution reflects a deep conviction that crimes disturb the moral order, which can only be restored by redressing the balance of justice. Whereas utilitarian ideas of punishment are forward-looking, concerned to uphold the social order, retribution was backward-looking, seeking to uphold the moral order. It was, as William Lamdard put it, ‘consonant with reason’ when retribution followed crime; the practice of punishment was ‘grounded upon the laws of God and nature itself ’ (at 173). Retribution is heard clearest in sentencing statements at treason trials. In announcing the punishments due the Gunpowder Plot conspirators in 1606, Lord Chief Justice John Popham matched punishment to crime with meticulous care. He declared the actions of the plotters to be ‘the greatest treasons that ever were plotted in England’; ones that ‘concern the greatest king that ever was of England’ (at 166). Their offence against lèse majesté is ‘beyond … all examples, whether in fact or in fiction, even of the tragic poets, who did beat their wits to represent the most fearful and horrible murders’ (at 168). They had, therefore, to suffer punishments that suited and expressed their horrendous crimes. Each of the condemned was to be drawn to the place of his execution rather than permitted to walk, as being not worthy any more to tread upon the face of the earth. Each was to be drawn backward, at a horse-tail, for that he hath been retrograde to nature; his head will be ‘declining downward, and lying so near the ground as may be, being thought unfit to take benefit of the common air’; after being strangled, he will be ‘hanged up by the neck between heaven and earth, as deemed unworthy of both, or either’. ‘Then is he to be cut down alive, and to have his privy parts cut off and burnt before his face as being unworthily begotten, and unfit to leave any generation after him. And his head, which had imagined the mischief, was to be cut off ’14 (Cobbett at 184 (emphasis added)). By making each punishment derive from the crime that induced it, Popham is trying to naturalise the relationship between them. Others, like the thirteenth century jurist Henry de Bracton, tried to make a science of sentencing. Combining English common law, Roman law (through Justinian’s The Digest), and the theories of his contemporary Azo of Bologna and his colleagues, Bracton produced a primitive version of our modern ‘sentencing guidelines’, setting forth criteria by which judges might calculate appropriate levels of punishments for particular crimes. Bracton’s writings are relevant because, though composed in the reign of Henry III, they were consulted and cited continuously and, after their publication in 1569, became acknowledged classics of English law. 13 Valuable studies of the practice of retribution in this period include JA Sharpe, Judicial Punishment in England (London, Faber and Faber, 1990); Esther Cohen, The Crossroads of Justice: Law and Culture in Late Medieval France (New York, EJ Brill, 1993); and Mitchell B Merback, The Thief, the Cross and the Wheel: Pain and the Spectacle of Punishment in Medieval and Renaissance Europe (Chicago, University of Chicago Press, 1999). 14 Cobbett’s Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors (London, TC Hansard, 1809) 184.

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Bracton instructs judges to consider each offence from seven different perspectives: motive, person (the relative social rank of criminal and victim), age, place (whether the location of the crime was sacred or secular), time (whether the crime took place by day or night), quality (the severity of an injury), and quantity (the amount stolen). Of these, the most relevant for us is motive, because it defines whether or not an act is a crime. ‘Remove will’, says Bracton, ‘and every act will be indifferent. It is your intent that differentiates your acts, nor is a crime committed unless an intention to injure exists’.15 A whipping administered by a master or parent with intent ‘to correct’ is not punishable, while a whipping committed in anger by a stranger is. Taking a life is not punishable when done by a judge ‘in the administration of justice’, in observation of ‘proper legal procedures’ and out of a ‘love of justice’.16 Nor is it homicide if done in self-defence, since the killing is done ‘without premeditated hatred but with sorrow of heart, in order to save himself and his family’; it follows that a madman ‘cannot be guilty’.17 ‘No man did ever think the hurtful actions of furious men and innocents to be punishable … In this consideration one evil deed is made more pardonable than another’. Three centuries later, Lambard stressed the same point: If a mad man or a natural fool, or a lunatike in the time of his lunacy, or a childe [that] apparently hath no knowledge of good nor evil do kill a man, this is no felony … for they cannot be said to have any understanding of evil. (Eirenarcha, at 218)

Both authors, in measuring culpability and assigning sanctions, are concerned not merely with a mechanical equivalence of harms (and eye for an eye) but with the intent of the perpetrator. Hamlet’s apology to Laertes seems laced with these concerns. It relies first on the excuse of ‘madness’ (5.2.228): If Hamlet from himself be ta’en away, And when he’s not himself does wrong Laertes, Then Hamlet does it not. (5.2.230–32)

But it also goes to the question of intent and, in that connection, invokes Bractonian principles:

15 Henry de Bracton, Bracton on the Laws and Customs of England (Cambridge, MA, Belknap Press of Harvard University Press, 1968) 23. 16 Ibid 340. Bracton holds his fellow jurists to very high standards: the judge who judges ‘perversely and against the laws’ or who takes bribes will ‘bring upon himself sorrow and lamentation everlasting’: ibid 21. 17 Ibid 341, 424.

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Let my disclaiming from a purpos’d evil Free me so far in your most generous thought, That I have shot an arrow o’er the house And hurt my brother. (237–40)

As readers, we know better. We know that the situation is murkier and more ambiguous than Hamlet reports, especially with regard to how lucid Hamlet was when he killed Polonius, but he clearly understands his legal position and how he must cast his defence in this context. Isabella’s defence of Angelo before the Duke plays similarly with the issue of intent: Look, if it please you, on this man condemn’d, As if my brother lived. I partly think A due sincerity govern’d his deeds, Till he did look on me: since it is so, Let him not die. My brother had but justice, In that he did the thing for which he died: For Angelo, His act did not o’ertake his bad intent, And must be buried but as an intent That perish’d by the way: thoughts are no subjects; Intents but merely thoughts. (5.1.441–51)

Her logic here, both legal and moral, is dubious, but that seems to be Shakespeare’s point: that she, despite her great intelligence and the justice of her demand for retribution, is prepared to mount and endorse a shaky case in order to gain mercy for an indubitably guilty person. Isabella is doing what Angelo refused to do: she is taking into account circumstances that mitigate Angelo’s guilt. By taking circumstance into account, she is invoking considerations of equity, echoing the distinction between legal literalism and equity (as a form of mercy) that had been institutionalised in sixteenth-century English courts. Discussing the roles of English courts in his day, Lambard repeats the distinction Aristotle draws in the Nichomachean Ethics between literal justice and ‘equity’: between courts that follow ‘the straight law’—‘written laws’, which are general and ‘grounded upon that which happeneth for the most part’—and Chancery courts in which ‘the rigor of the law [is] amended … by the true consideration of justice and equity’:

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The written law is like to a stiff rule of steel or iron, which will not be applied to the fashion of the stone or timber whereunto it is laid. And equity is like to the leaden rule of the lesbian artificers, which they might at pleasure bend and bow to every stone of whatever fashion.18

In practical terms, this often came down to a dispute between advocates of the common law (like Edward Coke), who would adhere to precedence in allotting punishments, and defenders of judicial discretion and the royal prerogative (like Francis Bacon). King James I counselled his son Henry, regarding his judicial duties, to ‘act as your heart serveth you and according to the circumstances of the time’, to ‘mixe Justice with Mercie, punishing or sparing, as ye shall find the crime to be willfully or rashly committed, and according to the by-past behaviour of the committer’.19 To fill the gap between desert and punishment with equity, which leads to mercy, becomes a king. Portia describes mercy as ‘an attribute to God himself ’; ‘earthly power doth then show likest God’s / When mercy seasons justice’. (The Merchant of Venice, 4.1.195–6) Martha Nussbaum perceives an analogous distinction between the courtroom and the playhouse as places where judgment is rendered. She contrasts judges in criminal trials who are obliged to follow the letter of the law with ‘literary’ judges who ‘come … to have emotions both sympathetic and participatory toward the things that [a wide array of characters] do and suffer’ (at 110). Her ‘literary judge sees defendants as inhabitants of a complex web of circumstances … which often, in their totality, justify mitigation of blame or punishment’ (at 111). On this basis, she characterises tragedy as ‘a school of equity and therefore of mercy’ (at 95). Surely it is true that drama, by providing access to the minds of characters so that we can gauge their level of responsibility and guilt, is all about the discovery of intent. It permits playwrights to give audiences access to as much of a character’s intent as necessary to shape an audience’s response to it. But in the process drama also discloses how fragile and ephemeral intent is. And tragedy goes further; it calls upon its audience to weigh the protagonist’s actions from his or her own perspective. Hamlet, Othello and Lear plead to be understood: the first as the victim of bloody accidents; the second as a deluded rather than an evil-intentioned man; and the third as ‘more sinned against than sinning’. Brutus, Antony and Coriolanus have posthumous claques that coax us into sympathy with them.

18 William Lambard, Archeion, or, A Discourse upon the High Courts of Justice (Charles H McIlwain and Paul L Ward (eds), Cambridge, MA, Harvard University Press, 1957[1635]) 43, 45. 19 Neil Rhodes, Jennifer Richards and John Marshall (eds), King James VI and I: Selected Writings (Burlington VT, Ashgate Publishing Co, 2003) 220–1.

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Even Macbeth, that case study in mens rea, solicits our sympathy as we share with him the powerful pressure of his wife’s pleadings and her adroit manipulation of the warrior code that betrays him to a fallacious definition of manhood. Add to that the play’s evocation of the misery his bad decisions have led him to, his pre-sentencing suffering, and the fact that he reinforces the very values he has violated by witnessing so strongly against himself. I quote a paragraph in which Nussbaum discusses Dickens’s charismatic villain Steerforth (from David Copperfield), but I substitute Shakespeare’s character: We are led to see [Macbeth’s] crimes as deliberate in the immediate sense required by strict legal and even moral judgment, but we also know that behind these crimes is a tangled history that might have been otherwise, a history that was not fully chosen by [Macbeth] himself … We are led to see character itself as something formed in society and in the family, something for which strict morality rightly holds individuals responsible, but something over which, in the end, individuals do not have full control. (at 107)

Drama steps beyond the law by taking up instances in which consequences are often unjust—which is the very definition of tragedy. As Aristotle teaches, there is nothing tragic about a bad person’s downfall, and nothing just about the downfall of a good person: what defines the tragic experience is for one to be neither all good nor all bad, but still to suffer, and to suffer more than one deserves. And yet for tragedy to work, the protagonist’s death must somehow seem fair, just and equitable. It offers a form of consolation. Nussbaum’s literary judge, discerning the inadequacy of general laws when applied to specific situations, witnesses the workings of the ‘straight’ law, univocal and unalterable, but does so through the eyes of equity. We witness the workings of the ‘straight’ law that cannot be defied or altered, which decrees death for the protagonist, but we do so through the eyes of the judge of equity who discerns the inadequacy of that law, but, in the end, must acquiesce to its peculiar validity. We cannot change the outcome, but we can fill the gap between deed and desert with our own mercy and grace. This is a paradox, but it is one that the application of law to literary studies helps resolve.

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12 Terrorists and Equivocators IAN WARD*

N THE FEAST of the Invention, 3 May 1606, Father Henry Garnet was strapped to a hurdle and dragged to his place of execution. According to Protestant accounts he looked guilty and terrified. According to Catholic accounts, he looked innocent and serene. Rather irritatingly, at least for the assembled dignitaries, he refused to confess his treason, and further denied that he was merely equivocating. Then, rejoicing in the fact that he had ‘found my cross’ he embraced the opportunity to die a martyr’s death. It was all rather unsatisfactory, and the fact that a group of suspected Catholic sympathisers ran up and pulled on his legs to make sure that he died whilst being hanged, and so did not suffer the peculiar agonies of being drawn, really quite ruined the day. By the time his heart was being torn out, and his body quartered, the crowds were drifting home, and those left were reported to have been murmuring rather ominously.1 Traitors, particularly Jesuit ones, were supposed to suffer rather more, their spectacular demise a matter of altogether greater celebration. And Garnet was no ordinary Jesuit. He was the Superior of the Order of Jesuits in England. God’s ‘chosen people’, of whom Garnet was most definitely not one, imagined themselves living in an ‘age of terror’; terrorised, primarily by men like Garnet, the imagined puppet-master of a vast, if shadowy network, of Jesuit insurgents dedicated to destroying Albion and all its hard-earned freedoms.2 Garnet was, in simple terms, the Osama bin Laden of early seventeenth century England; more guilty as Sir Edward Coke affirmed at his trial, as ‘author’ of the infamous Plot than ‘all the actors’.3 Garnet had been found hiding, not in a cave in the Hindu *

An earlier version of this chapter appeared at (2007) 1(1) Law and Humanities 111. For an account of Garnet’s execution, see A Fraser, The Gunpowder Plot (Phoenix, 2002) 319–23. 2 For the assertion that contemporaries regarded themselves as living in an ‘age of terror’, see R Wilson, Secret Shakespeare: Studies in Theatre, Religion and Resistance (Manchester, Manchester University Press, 2004) 2. 3 Ibid 196. 1

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Kush, but in a closet in Hindlip House near Worcester. But the parallel is again immediate. Terrorists skulk, and Garnet had spent his life skulking. Skulking was reason enough for his vilification, his office as Superior reason more. But Garnet’s guilt was greater still, for he was implicated, however remotely, in one of the most spectacular, if ultimately abortive, terrorist acts in British history: the Gunpowder Plot of November 1605. Whilst Garnet was not directly embroiled in the Plot, he was widely held responsible for failing to caution young Catholics against such plotting. He was, as the popular rhyme suggested, ‘accessory to this damned intent’.4 The Powder Plot, as it was known by contemporaries, was intended to blow up Parliament and with it the new King James I and his family. It was, very definitely, a terrorist plot; a spectacular act of extreme political violence intended to disrupt the English state and terrify its people.5 Although it failed, so spectacular was the intent, and the possible consequence, that it has retained a unique place in the English political consciousness.6 Generations of children have learned the iconic rhyme: ‘Remember, Remember, the Fifth of November’. In time, the celebration of apocalypse narrowly averted has given way to the fun of Bonfire Night, to the munching of sausage rolls, firework displays and the ritual burning of effigies of Guy Fawkes. But the political and theological charge still lurks beneath, not least in the habit, which continues to this day in certain English towns, of providing the ‘Guy’ with companions; amongst which, in recent years, and with an appropriateness that is as acute as it is quixotic, can be included incinerated images of Osama bin Laden, Tony Blair and George Bush.7 The experience of terror, and the ritual, bridges the centuries. As James Sharpe has recently argued, currently assailed by all the fantastic rhetoric of our present ‘war on terror’, the need for context, of the kind that history, and literature, can provide, is pressing. Collective ‘cultural memories’ of events such as ‘the Fifth’ can help us to ‘understand our current predicaments’ that little bit better.8 Or at least they should. Whether or not they do is a different matter. The terrorised tend to be susceptible to the suggestion that the particular terror they perceive is so much more terrifying than any previous terror. And it is, of course, the purpose of any counter-terrorist strategy to make sure that this is the governing perception. Aside from providing a broader historical context, memories of ‘the Fifth’ also serve to underline one marked characteristic of an overriding majority of terrorist events and experiences; and this is the particular and pervasive relation of terrorism and religion. The ‘connection between terror and injustice in divine

4 The extent of Garnet’s involvement in the Plot remains uncertain. He is thought to have known about the existence of such a plot, at least in vague outline, by July 1605. 5 See J Sharpe, Remember, Remember the Fifth of November: Guy Fawkes and the Gunpowder Plot (London, Profile, 2005) 3 and 67, describing it as a ‘failed act of terrorism’, and also Fraser, above n 1, at xv–vi and 359. 6 See Fraser, n 1 above, at 339. 7 See Sharpe, n 5 above, at 174–5, 177. 8 Ibid 8 and also 195–7.

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matters’, as Terry Eagleton has recently affirmed, is present in ‘every age’.9 The victims of terrorism, all too often, are chosen because they are thought to believe in the wrong God or gods or in no gods at all. Father Garnet believed in the right God, but not in the right way. Those who died in the Twin Towers on 9/11 were similarly indicted, at least by their assailants. And so it might be surmised are those who continue to die in Afghanistan and Iraq, and in so many other corners of the globe. Twenty-one centuries ago, so the New Testament tries to persuade us, the son of God was sent to save humanity. Sometimes it is hard to believe that it really wants to be saved at all.

THE SWORD ERECT Early modern England was saturated by theology. The English were, of course, a ‘chosen people’, blessed as Bishop Aylmer famously confirmed because God Himself ‘is English’.10 But they were also a tortured and terrified people; terrified, above all, by the fear that God would forsake them if they fell back into the temptations of Popery, their terrors graphically confirmed by all the tortures depicted in Foxe’s Book of Martyrs and similar canons of militant Protestantism.11 The great statutes of the Reformation, the Acts of Supremacy and Uniformity, existed as much to confirm the expulsion of Popery as it did the establishment of an Anglican Church, whilst collateral edicts, such as the 1569 Homily Against Disobedience and Willfull Rebellion provided a legislative complement to the horrors depicted in Foxe’s Book. Either the ‘chosen people’ obeyed the edicts of their anointed monarch, or they lived in a state of ‘Babilonical confusion’, with the concomitant certainty of their ‘utter destruction, bothe of soules, bodies, goodes and common wealthes’.12 The militant strain was endemic. In his final play, Henry VIII, Shakespeare has his Archbishop predict that the future Elizabeth will rule by a mixture of ‘Peace, plenty, love’ and a just measure of ‘terror’. (5.4.47) Terror, particularly Popish terror, must be met by terror. It was only to be expected. A generation later, England would, as Sir Thomas Digby rued in 1642, ‘fly into the wilderness for religion’.13 Marvell’s Oliver Cromwell carried the ‘sword erect’, a true crusader of

9

T Eagleton, Holy Terror (Oxford, Oxford University Press, 2005) 2, 27–41. See P Collinson, The Birthpangs of Protestant England: Religious and Cultural Change in the Sixteenth and Seventeenth Century (Basingstoke, Macmillan, 1988) 7. 11 Foxe’s Book was, according to Collinson, a ‘monumental influence’ on the collective mind of the ‘chosen people’; see his Birthpangs, n 10 above, at 12. 12 See I Ward, A State of Mind? The English Constitution and the Popular Imagination (Stroud, Sutton, 2000) 38; and Sharpe, n 5 above, at 3–6. 13 Clarendon, Selections from Clarendon (Oxford, Oxford University Press, 1978) 249. 10

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the English reformation, ‘God’s Englishman’ indeed.14 The English civil wars were, in every sense ‘wars of religion’, and they were also very definitely wars ‘on terror’.15 Marvell also presented Cromwell as the ‘force of Heaven’s angry flame’.16 Milton depicted an ‘angry Jove’ raging at an awed people.17 John Bunyan readily admitted to be ‘tossed’ into a state of near-perpetual ‘despair’ by his fear of God.18 They were, like St Augustine, forever filled ‘with terror’.19 Perceptions of Jove’s anger, and its focus, were various. It encompassed, certainly, the avowed Papist, and most especially that ‘generation of vipers’, as Lord Burghley termed them: the Jesuits.20 His ‘chosen people’ had taken the trouble to enact plenty of legislation to flush out the Popish sympathiser; enforcing attendance at Anglican churches on pain of fine or even confiscation of property, banning Catholic rituals and restricting the movement of suspected recusants. Jove’s anger was also directed towards the over-zealous counterterrorist, such as the Earl of Essex, who, in the wake of his failed coup in 1601, claimed that he had only sought to deliver his Queen and ‘all Christendom from the fearful usurpation’ of Rome.21 As successive Homilies had confirmed, if there was a problem, in Albion, or with its anointed sovereign, God would sort it out. Similarly, nothing would make Jove angrier, as George Herbert implied, than the ‘chosen people’ allowing themselves, and their reformation, to be devoured by the ‘worm’ of ‘schism’.22 Richard Hooker’s Laws of Ecclesiastical Polity was fervent in its defence of the ‘golden mediocrity’ in church governance.23 The ever-anxious, ever-terrified, John Donne likewise urged a balance, of ‘reason’ in the ‘soul’s left hand’ and ‘faith’ in ‘her right’.24 Equally, however, many feared that Jove was angry with His people for their complacency. The fifth book of Edmund Spenser’s Faerie Queene closes with the ‘blatant Beast’ of ‘ugly Barbarisme’ and ‘brutish Ignorance’ ravaging the ‘new Hierusalem that God has built’.25 The Beast is nurtured by indifference; by a misplaced tolerance; by a willingness to countenance ‘church papists’, closet

14 A Marvell, ‘An Horatian Ode upon Cromwell’s Return from Ireland’, line 116, in The Poems and Letters of Andrew Marvell (Oxford University Press, 1970). 15 See J Morrill, The Nature of the English Revolution (Harlow, Longman, 1993) 38–9 and 45–68. 16 Marvell, n 14 above, line 26. 17 See T Paulin, Crusoe’s Secret: the Aesthetics of Dissent (London, Faber and Faber, 2005) 22–3, 31–2, 41. 18 J Bunyan, Grace Abounding to the Chief of Sinners (London, Penguin, 1987) 48. 19 See Eagleton, n 9 above, at 40–1, suggesting that such a theology makes its God a ‘terrorist’. 20 In Fraser, n 1 above, at 46. 21 See W MacCaffrey, Elizabeth I (London, Edward Arnold, 1993) 277 and C Hibbert, The Virgin Queen: a Personal History of Elizabeth I (Penguin, 1992) 231. 22 G Herbert ‘A Priest to the Temple’, lines 9–11, 19, 50–1, 95, 101–2, 131–2, 179–86 in The Complete English Poems (Penguin, 1991), and also D Levarg, ‘George Herbert’s “The Church Militant” and the Chances of History’ (1957) 36 Philological Quarterly 265. 23 R Hooker, Of the Laws of Ecclesiastical Polity (Cambridge University Press, 1989) 79–80, 145–51. 24 J Donne, ‘To the Countess of Bedford’, line 1 in The Complete English Poems (Penguin, 1996). 25 E Spenser, ‘The Faerie Queene’ in Complete Poetical Works (Oxford University Press, 1980) 1.10.57 and 5.12.41–3.

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Papists trundling to church every Sunday, closing their ears to the godly Word and then scurrying back to their various homesteads and taking mass.26 The rise of Arminianism, an ‘old condemned heresy raised up from hell of late by some Jesuits’, as William Prynne termed it, only seemed to confirm everyone’s worst fears.27 There was always something, or so it seemed to men like Prynne, half-hearted about the Elizabethan Reformation; which is why there needed to be another one. Whilst Sir John Harrington famously compared life in Elizabethan England to a ‘kind of Romanze’, he also, later, compared Gloriana to an indolent scullery-maid who brushed the dirt under the kitchen mat.28 For the Elizabethan, of course, the ‘Romanze’ was everything. ‘We princes’, as Elizabeth had famously admitted, ‘are set on stages in the sight and view of all the world duly observed’.29 Moreover, Gloriana and her Church were inseparable in the political imagination. ‘I have no dealing with the Queen’, the MP Thomas Norton advised his son, ‘but as with the image of God’.30 The Protestant poetic, found in texts such as Puttenham’s The Arte of English Poesie and Sidney’s Defense of Poesy, was composed to confirm precisely this.31 The papal anti-Christ would be repelled, not just by the ‘sword erect’, but by lyric and verse. As Sidney admitted in his Defense, the poet ‘doth not only show the way, but giveth so sweet a prospect into the way, as will entice any man to enter it’.32 The idea that the rhetoric of terror and terrorism must be met by a counterrhetoric of counter-terrorism is not new. In the Protestant poetic it found expression in Spenser’s invocation of ‘savage justice’ against the Papists of Ireland, or anywhere else; in Sidney’s similar urgings against the ‘sorceries’ of Rome wherever they may be found; and, in equally brutal form, in Milton’s Eikonoclastes, which defended the execution of Charles I, not just as cruel necessity, but as a duty demanded by the ‘special mark’ of God’s ‘favour’.33 And the same anti-Catholic tone can be readily found in the final book of Thomas Hobbes’s Leviathan; against its ‘Confederacy’ of priestly ‘Deceivers’, its ‘Ghostly incantations’, its myriad sacramental ‘Illusions’, and its ‘vaine and impious Conjurations’.34 But Hobbes was not part of the Protestant poetic. Indeed, he was enormously suspicious of any poetic; a suspicion which, as would 26 ‘Church’ or appellant Catholics formally defined themselves by a willingness to ‘appeal’ their political loyalty to Elizabeth I. See Fraser, n 1 above, 26–7, 31, 46–52, and Sharpe, n 5 above, at 21–4. 27 In K Sharpe, The Personal Rule of Charles 1 (Yale University Press, 1992) 295. 28 S Greenblatt, Renaissance Self-Fashioning (Chicago University Press, 1980) 168–9. 29 Ibid 167. 30 Ibid 168 and P Collinson, ‘The Monarchical Republic of Queen Elizabeth I’ (1987) 69 Bulletin of the John Rylands Library 409. 31 B Worden , The Sound of Virtue: Phillip Sidney, Arcadia and Elizabethan Politics (New Haven, Yale University Press, 1996) 254, and R White, Natural Law in English Renaissance Literature (Cambridge University Press, 1996) 73–86. 32 In P Sidney, A Critical Edition of the Major Works (Oxford University Press, 1989) 220–3, 226–31, and also Worden, n 31 above, at 227–39. 33 Sidney, n 32 above, at 42, 101, 110–11, 132, and J Milton, Complete Prose Works (Yale University Press, 1953–62) 3.342–3, 348. 34 T Hobbes, Leviathan (Penguin, 1985) 627–9, 633–6.

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be the case with Burke and his Reflections, inheres its own particular ironies. Any theology, Hobbes implies, seeks to govern imaginations by nurturing ‘Phantasms of the braine’, by projecting a ‘kingdome of darknesse’ and terror into which perceived heretics must fall. Popery is merely the most distasteful of such theologies. His later history of the English civil wars, Behemoth, depicts a people that did indeed fly into a war against terror precisely because they were terrified by the incantations of rival clerics. Terror and religion, Hobbes well knew, are the cosiest of bedfellows.35

GUNPOWDER, TREASON AND PLOT The arrival of James I from Scotland had been met with much enthusiasm by Catholics. Henry Garnet anticipated a ‘golden time’ with ‘great hope’ of ‘toleration’.36 For much of the previous decades Jesuit tracts had circulated, pleading the cause of alternative successors, such as the Spanish Infanta. But James was the realistic expectation, and his rule in Scotland, quite apart from the notoriety of his mother as a Catholic martyr, gave Garnet every reason to hope. Sadly, as tended to become characteristic of the new King, in time he began to disappoint. The future, it became apparent, was going to be like the past; with pale-faced priests emerging in the quieter hours from cramped little closets, giving hasty masses, and then retreating back into the shadows. Whilst the likes of Garnet were more inclined to sigh a little deeper and reconcile themselves to their disappointment, a younger generation proved to be rather less amenable, and chose, instead, the path of active resistance. The Powder Plot, the origins of which could be traced to Spring 1604, was a young man’s plot, an expression of visceral and of discontented youth. Their leader was the charismatic Robert Catesby. Guy Fawkes was the hired hand. In time, they would secure Garnet’s tacit assent. But their role bears a far more ready resemblance to that of an autonomous terrorist cell existing only very loosely within a wider diaspora of disaffected Catholics. Having blown up King and Parliament, the aim of the plotters was to install a Protectorate under the prominent Catholic Earl of Northumberland, with the young Princess Elizabeth as queen.37 Famously, they failed. Albion was saved once more. As the King advised his Parliament, they had been delivered from a ‘roaring, nay a thundering sin of fire and brimstone’.38 The formal institutions of law swung quickly into action. So did the propaganda. Although James cautioned against assuming ‘that all professing the Romish religion were guilty of the same’, 35 36 37 38

T Hobbes, Behemoth (Chicago, Chicago University Press, 1990) 2–3, 15–16. In Fraser, n 1 above, at xxxvii. Sharpe, n 5 above, at 54. In Fraser, n 1 above, at 231.

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his counsellors thought different. Legislation designed to counter the pressing ‘Danger of Papistical Practicies’, was rushed through Parliament. A judicial inquiry, established by Lord Salisbury with the specific remit to contemplate the necessity of a rather wider war designed to ‘exterminate’ the Jesuit terror, was in place within days.39 A show-trial of captured plotters opened to audiences in January 1606. The chief protagonist, in both the inquiry and the subsequent trials, was Sir Edward Coke, the Attorney General. Coke had the necessary experience, as well as the new King’s favour; famously prosecuting the trials of the Earl of Essex in 1601, and more importantly, at least for James, Sir Walter Raleigh in 1603. Coke could be relied upon to make sure that the show-trial was suitably dramatic. It was the performance that interested James, not the issue of guilt or otherwise. Not that there really was an otherwise. Three centuries later, Macaulay would dismiss such jurisprudential theatrics as nothing more than judicial ‘murder preceded by the uttering of certain gibberish and the performance of certain mummeries’.40 James, intriguingly, attended the trials avidly, though doing so in secret, seated behind a screen; an act of curious, and typical, dissimulation, and not a little irony. Coke did not disappoint. His address, he apologised in advance, would be ‘copious’, for the treason was indeed unparalleled, the extent of its evil intent, and its failure, ‘divinely illuminated’ by God.41 And the ‘principle offenders’ in the ‘Powder Plot’, he was happy to confirm, were indeed ‘the seducing Jesuits; men that used the reverence of religion, yea, even the most sacred and blessed name of Jesus, as a mantle to cover their impiety, blasphemy, treason and rebellion, all manner of wickedness’.42 Extracted confessions read out in court were obliging, confirming the thrilling picture of a vast Jesuit plot to destroy the ‘chosen people’.43 Whilst the intended destruction of Parliament and its members was startling enough, it was the anticipated murder of the King which was so shocking. Regicide was widely regarded, not just as a crime against nature, and God, but also against the commonwealth itself. It was an act of self-immolation. Later, Milton would argue that kings who prove to be ‘suttle’ dissimulators deserved to be decapitated.44 But in early 1606, and with little fear of contradiction, Coke could proclaim that the regicide countenanced by the Powder plotters was amongst the ‘the greatest treasons that ever were plotted in England, and concern the greatest King that ever was of England’. Good counter-terrorist rhetoric is

39

Ibid 305. Ibid 263. 41 G Wills, Witches and Jesuits (Oxford, Oxford University Press, 1995), 14–16, 20–3, and Fraser, n 1 above, at 266–7. 42 For a commentary on Coke’s strategy and rhetoric, see Sharpe, n 5 above, at 70–2, and also Fraser, n 1 above, at 262–6. 43 Ibid 268–70. 44 Milton, n 33 above, at 3.350–62. 40

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rarely undersold. The plot, Coke confirmed, intended a crime ‘sine exemplo, beyond all examples, whether in fact or fiction, even of the tragick poets, who did beat their wits to represent the most fearful and horrible murders’.45 In the murky jurisprudence of terror, the relation of fact and fiction is never cleanly distinguished. In short order, Parliament passed an Act for a ‘Public Thanksgiving to Almighty God every Year on the Fifth Day of November’. The day, it was to later prove, was peculiarly blessed. Eighty-three years later, on the fifth of November 1688, Prince William of Orange landed at Torbay, at the behest of the English Parliament, in order to sweep away the resurrected spectre of a Popish king.46 Over a century later, Samuel Baker, preaching at York in 1745, and in anticipation of a Stuart incursion into northern England, invoked memories of ‘the Fifth’. It was, he declaimed, an act of ‘gloomy bigotry’ and ‘relentless popery’, and presented to his audience a virtual history of the catastrophe, of the ‘severed heads, mangled limbs, the torn bodies tossed and scattered in the air’, of the ‘distressed mother, the tender wife, pale and trembling, seeking for the sad remains of son and husband’.47 Back in the Winter of 1605, unsurprisingly, the popular mood was peculiarly susceptible to any amount of rhetorical fantasy. A poem of the time, ‘The Devil of the Vault’, widely circulated, expressed the pervasive sense of apocalyptic terror which the authorities were so keen to nurture: So, dreadful, foul, chimera-like My subject must appear: The Heaven amaz’d and hell disturbed The earth shall quake with fear.48

There was certainly much quaking, and much disturbance of heaven and hell, in perhaps the most famous literary commentary on the Gunpowder Plot, William Shakespeare’s Macbeth.49 Over the following centuries, performances of Macbeth on ‘the Fifth’ provided a theatrical complement to the more formal thanksgiving prescribed by Parliamentary statute. Pepys recorded attending one such performance in 1664.50 Macbeth was the first play Shakespeare completed in the months following the abortive Plot.51 The relation between the two is well-established in Shakespearean

45

In Sharpe, n 5 above, at 72. Ibid 102. 47 Ibid 6–7. 48 In Fraser, n 1 above, at 254. 49 For this opinion, see Alan Sinfield, ‘Macbeth: History, Ideology and Intellectuals’ (1986) 28 Critical Quarterly 66. 50 It was, he noted, a ‘pretty good play’. See Sharpe, n 5 above, at 94. 51 The composition was clearly, to quote Antonia Fraser, ‘darkened by the shadow’ of the Plot. See her Plot, n 1 above, at xiii. 46

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studies; as is the dominant theme of religiosity.52 The subject of Shakespeare’s own religious affinities remains a matter of controversy. On a personal level, he was certainly brought up in a town renowned for the virulence of its religious dissension.53 Classical Shakespearean scholars have tended to present ‘the Bard’ as an avowed champion of the English Protestant poetic. Henry V is a paean to a ‘chosen people’ on crusade, a people whose very existence is defined by its preparedness to cross the Channel and slaughter lots of Catholics. Richard III famously closes with an appeal to a distinctively Anglican God, one that will ‘Smile’ again upon ‘God’s fair ordinance’. (5.5.29–34) So does the play that is more commonly cited as Shakespeare’s last, Henry VIII. (5.4.17–20, 45–6). The ‘radical Christian’ Shakespeare, increasingly concerned with the doctrine of suffering, is a variant on the classical crusading Shakespeare.54 A second, rather different Shakespeare, is the recusant Shakespeare; the Shakespeare who, using a popular anti-recusant metaphor, was famously dismissed by Henry Chettle in 1592, as an ‘upstart crow’.55 This is the Shakespeare described by Ted Hughes as the ‘shaman’ of ‘old Catholicism’, whose recusant father is known to have received a copy of Cardinal Borromeo’s notorious Spiritual Testament from Edmund Campion at the Catesby family’s Lapworth House, and whose mother hailed from the equally recusant Arden family.56 It is the Shakespeare who is rumoured to have spent some of his youth with the recusant Hoghton family in Lancashire, and then, on moving to London, is known to have oscillated towards the Mermaid Tavern, an established haven for recusants with artistic pretensions; the Shakespeare whose first patron, Lord Southampton, was himself an acknowledged recusant.57 The evidence is, however, strikingly circumstantial, and it is reasonable to suppose that if Shakespeare did retain Papist sympathies they were of the conformable kind.58 And then there are the post-modern Shakespeares, those that insinuate a fatal ambiguity that cuts across the entire corpus. This is the Shakespeare who fully appreciated, even embraced, the innate capacity of language to nurture dissimulation, who recognised that any textual politics is a necessarily ironic politics.59 It

52 Some critics argue that the Scottish setting was also intended to awaken memories of the earlier Gowrie Plot in 1600. See A Clark, Murder Under Trust: the Topical Macbeth (Edinburgh, Scottish Academic Press, 1981) 12 and 109–12, and also Wills, n 41 above, particularly at 27–9. 53 See Collinson, in 10 above, at 55. 54 See T McAlindon, ‘What is a Shakespearean Tragedy?’ in C McEachern (ed), Cambridge Companion to Shakespeare (Cambridge University Press, 2002) 16–20. 55 The metaphorical affinity between Jesuits and ‘massing crows’ was well understood by contemporaries. The case for a recusant Shakespeare has been most recently argued by Richard Wilson, in his Secret Shakespeare, n 2 above, at 11–13 and also 295–6. 56 T Hughes, Shakespeare and the Goddess of Complete Being (Faber and Faber, 1992) 86, 90. See also Wilson, n 2 above, at 15–16, 34, and also 112, suggesting that attesting to Boromeo’s Testament was the ‘equivalent of joining the Taliban’. 57 See Wilson, n 2 above, at 21–2, 44–8, 56, and also 117, referring in this context to Shakespeare’s ‘Catholic terrorist affiliations’. 58 See ibid ix, 4 and also 297. 59 J Bate, The Genius of Shakespeare (London, Picador, 1997) 7–8.

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is this Shakespeare who has his Archbishop in Henry V appraise the young king precisely because he can ‘steal his sweet and honey’d sentences; / So that the art and practic part of life / Must be the mistress to this rhetoric’. (1.1.50–2) All Shakespeare’s princes, particularly the successful ones, are first and foremost consummate actors.60 The dissimulating Shakespeare might be readily aligned with the recusant Shakespeare; as the embittered puritan John Speed insinuated as early as 1611, in his passing dismissal of Shakespeare, ‘This papist and this poet, of like conscience for lies, the one ever feigning and the other ever falsifying the truth’.61 There again, any dramatist dissimulates to some degree. Shakespeare is famously evasive, and so are his plays. In one sense, the terror in Macbeth is overt, and so is the terrorist. Macbeth is Shakespeare’s Catesby.62 Macduff ’s distress at his discovery of the body of the murdered King would certainly have resonated: O horror! horror! horror! Tongue nor heart cannot conceive, nor name thee! (2.3.62–3)

Regicide, a breach of ‘absolute trust’, a most ‘sacrilegious Murther’ (1.4.13–14, 2.3.66), is a crime that almost defies description.63 But nothing in the rhyme and rhetoric of terror and counter-terror is ever truly beyond description. In Macbeth regicide leads, inexorably, to the immediate dissolution of the body politic, as well as the mental disintegration, and finally physical destruction, of the guilty. As Macbeth attests, the ‘infliction of these terrible dreams, / That shake us nightly’ are as one with the greater ‘frame of things disjoint’. (3.2.16, 18–19) Shakespeare’s audience would have expected no less.64 In another sense, however, the terror is indeed evasive; an expression, as Russ McDonald has suggested, of a compelling, if ‘fatal’, textual ‘ambiguity’.65 Here, the Porter’s speech just prior to the discovery of Duncan’s body, is justly renowned. Taking exception at such an urgent ‘knocking’ on his door, the Porter exclaims:

60 See I Ward, ‘A Kingdom for a Stage, Princes to Act: Shakespeare and the Art of Government’ (1997) 8 Law and Critique 141. 61 Speed’s insinuation should be placed within the context of the broader puritan antipathy towards the theatre. See Wilson, n 2 above, at 5, and also 148–9; also J Knapp, Shakespeare’s Tribe: Church, Nation, and Theater in Renaissance England (Chicago, Chicago University Press, 2002) 53, 169. 62 For an original suggestion of this affinity, see L Hotson, William Shakespeare (Jonathan Cape, 1937) vol I, 197–8. 63 Macbeth acknowledges precisely this. The King is sleeping under his roof ‘in double trust’, Macbeth being his ‘kinsman and his subject’, and ‘his host’ (1.7.12–14). For a discussion of ‘trust’ in the play, see A Hadfield, Shakespeare and Renaissance Politics (London, Routledge, 2004) 78. 64 It is quite likely that amongst the audience for the first performance would have been King James himself. See A Kernan, Shakespeare, the King’s Playwright: Theater in the Stuart Court 1603–1613 (New Haven, Yale Uuniversity Press, 1995) 71–2. 65 R McDonald, ‘The Language of Tragedy’ in McEachern, n 54 above, at 46–7.

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Here’s a farmer, that hang’d himself on th’ expectation of plenty: come in, time-pleaser; have napkins enow about you; here you’ll sweat for it. Knock, knock. Who’s there, i’ th’ other devil’s name—Faith, here’s an equivocator, that could swear in both the scales against either scale; who committed treason enough for God’s sake, yet could not equivocate to heaven: O! come in equivocator. (2.3.4–13)

The speech is notoriously opaque. But allusions to Henry Garnet are unmistakable. The Jesuit Superior, who used the alias Farmer, is welcomed fresh from the scaffold, carrying his ‘napkins’; items that he will certainly need as he sweats in hell, but which carried a very different consonance in Catholic martyrology, so often the bloodied relics of butchered priests.66 The subject of equivocation was equally, and indelibly, associated with Garnet. The allusion to the Farmer who ‘could not equivocate to heaven’, carried a particular, and grim, resonance; at least Garnet, it was joked at the time, would be ‘hanged without equivocation’.67 In his report on the ‘Powder Plot’, Coke spoke of the ‘perfidious and perjurious equivocating’ of the conspirators; a practice encouraged in ‘certain heretical, treasonable and damnable books’, including Garnet’s own treatise On Equivocation. For priests like Garnet, equivocation was justified by the unbreakable sanctity of the confessional.68 As far as Coke was concerned, however, when it came to dealing with Papists, a failure to tell the whole truth was tantamount to ‘open and broad lying and forswearing’, and should be treated as such. A priest who knew, but declined to confess his knowledge, like Garnet, was just as guilty as those who were found lurking in the cellars of Westminster. Coke spent much time at Garnet’s trial painting a lurid picture of equivocating priests. Equivocation and dissimulation, he suggested, were the ‘bastard children’ of Popery.69 Equivocation has seduced Macbeth: first, in the person of his wife who propels her husband to commit the most heinous of acts, and to do so by adopting strategies of dissimulation: Your face, my Thane, is as a book, where men May read strange matters. To beguile the time, Look like the time; bear welcome in your eye, Your hand, your tongue: look like th’ innocent flower, But be the serpent under ’t. (1.5.62–6)70

And secondly, in the form of the witches. The temptation to identify the ‘juggling fiends’ (5.10.19), which Macbeth encounters upon the heath, with contemporary

66

See Wills, n 41 above, at 96–101, and Wilson, n 2 above, at 171, 172–4. Comment attributed originally to Dudley Carleton, and cited in Fraser, n 1 above, at 315. 68 See P Zagorin, Ways of Lying: Dissimulation, Persecution and Conformity in Early Modern Europe (Cambridge, MA, Harvard University Press, 1990) 14, and also Wilson, n 2 above, at 54–5 and Wills, n 41 above, at 93–6. 69 Fraser, n 1 above, at 311–13. 70 For the assertion that Lady Macbeth is depicted as a fourth witch, see Wills, n 41 above, at 80. 67

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Jesuit caricatures is itself seductive.71 The witches ‘fight against the / Churches’, they treasure icons, such as the ‘pilot’s thumb’ (4.1.52–3), a clear allusion to the notorious thumb of the martyred Campion, and indulge in satanic rituals, of the kind which, in the febrile imagination of the time, were barely distinguished from the shadowy masses conducted by closeted priests in country houses up and down the country.72 And they play with language. Their sorcery is written in riddles. It is, as Hecate affirms in her ‘angerly’ confrontation with the three witches in Act 3 scene 5, her ‘art’: How did you dare To trade and traffic with Macbeth, In riddles, and affairs of death; And I, the mistress of your charms, The close contriver of all harms, Was never call’d to bear my part, Or show the glory of our art? (3.4.3–9)

It is her ‘magic sleights’ which, ‘Shall raise such artificial sprites, / As, by the strength of the illusion’ (3.4.26–8) shall draw Macbeth to his ultimate demise. As Macbeth begins to sense his own fate, he appreciates the irony of his seduction; his own dissimulation founded on the impenetrable riddles of the witches. ‘I pull in resolution’, he reflects, as Birnam wood does indeed appear to ‘come to Dunsinane’, and ‘begin / To doubt th’ equivocation of the fiend / That lies like truth’. (5.5.42–4) But it is too late to eschew dissimulation; at least it is for Macbeth. But not for Scotland, or by implication for Albion. The ‘special providence’ which pervades Hamlet’s Denmark is visited upon Scotland in the closing scenes.73 Macduff recognises the ‘holy’ relation of the English Crown and ‘Him above’ when he flees across the border (3.6.30, 32). Malcolm too puts his faith in the ‘Angels’, leaving to God the question of a proper succession, and trusting in the ‘Powers above’ to wreak a biblical vengeance upon the ‘Devilish Macbeth’ (4.3.22, 117, 120-–1, 238–9). Scotland will be saved ‘by the Grace of God’, and by England (5.9.29–30, 38). And it is in ‘the great hand of God’ that Banquo places himself (2.3.128). Of course, Banquo’s faith proves to be a little misplaced, at least in the short run; an intimation of the chaos that might befall a people that God forsakes. But in the end, it is God who saves Scotland, and Shakespeare would have his audience surmise, Albion too. It is from Banquo’s line that King James was said to trace his succession; a fantasy that James was, by all accounts, more than happy to sustain. 71

See also Wilson, n 2 above, at 193–9, and Wills, n 41 above, at 35–7, 43–8. For an account of the grisly history of Campion’s thumb, see Wilson, n 2 above, at 188–93. 73 For a discussion of this providence, arguing its Calvinist credentials, particularly in Hamlet, see A Sinfield, ‘Hamlet’s Special Providence’ (1980) 33 Shakespeare Survey 89. 72

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ON CRUSADE The impact of ‘the Fifth’ upon the political imagination of early Jacobean England was just as great as the impact of 9/11 has been on the political imagination of early twenty-first century America. The similarities between the anti-Jesuit hysteria of early seventeenth century England and our present responses to the perceived threats of militant Islam are acute.74 Terror and faith go hand in hand. One side in the present ‘war on terror’ certainly seems to think so. According to bin Laden’s deputy, Ayman al-Zawahiri, the ‘love of death’ which drives the Islamic ‘warrior’ is a ‘testament’ to the ‘fury for God’ which defines jihad.75 In the words of one of the fathers of jihad, Abdullah Azzam, militant Islam is ‘solely dependent on the ink of its scholars and the blood of its martyrs’, such that ‘the map of Islamic history becomes coloured with two lines: one of them black, with the ink of scholar’s pen; the other one red with the martyr’s blood’.76 The other side, it might be hoped, would be rather more circumspect. Not so. The immediate response to 9/11, particularly amongst members of the Bush administration, was to confirm their engagement in a latter-day ‘war of religion’; just as bin Laden and al-Zawahiri had hoped. The President’s rhetoric was visceral. The ‘war on terror’, he announced in an early unguarded moment, would be a ‘crusade’. Speech after speech closed with an injunction for prayer. A culture of ‘suffering’ was invested, a rhetoric of ‘apocalyptic fundamentalism’ invoked.77 The spirit of Herman Melville walked again in the American consciousness. ‘We Americans’, Melville had held a century before, ‘are the chosen people—the Israel of our time; we bear the ark of the liberties of the world’.78 America went to ‘war on terror’ emboldened by the iconography of militant Christianity.79 Much was made of a people being crucified, ‘suffering’ at the

74

See Wilson, n 2 above, at 7. The literature on the place of a ‘cult of death’ within strains of Islamic political theology is considerable. See P Rees, Dining with Terrorists (Basingstoke, Macmillan, 2005) 247–8; J Burke, Al-Qaeda: the True Story of Radical Islam (Harmondsworth, Penguin, 2004) 32–5, and also M Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh, Edinburgh University Press, 2005) 150; S Zizek, Welcome to the Desert of the Real (London, Verso, 2002) 141–2; W Lacqueur, No End to War: Terrorism in the Twenty-First Century (New York, Continuum, 2004) 71–3, 85–7; and W Sofsky, Violence: Terrorism, Genocide, War, (London, Granta, 2003) 95. 76 Quoted in M Ruthven, A Fury for God: The Islamist Attack on America (Harmonsworth, Penguin, 2002) 203–4, who also confirms, at 208–9, the extent to which bin Laden sees himself as a protégé of Azzam. 77 See R Jackson, Writing the War on Terrorism (Manchester, Manchester University Press, 2005) 33–5, 103, 142–3, and Ruthven, n 76 above, at 32–3. 78 In Ruthven, n 76 above, at 33. See also B Barber, Fear’s Empire: War, Terrorism and Democracy (New York, Norton, 2004) 67–70. 79 See G Achcar, The Clash of Barbarisms: the Making of the New World Disorder (London, Saqi. 2006) 28–9. 75

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hands of evil. The Blatant Beast was abroad again. False prophets were everywhere. There were lots in Afghanistan, and it transpired, rather conveniently, in Iraq too. Needless to say, there were ‘at home’ too, as Attorney General Ashcroft repeatedly advised, swarming across God’s own country and insinuating themselves in the homesteads of middle America.80 Secretary of State Powell noted that, unlike the ‘chosen people’, these prophets, and their followers, had no real ‘faith’, and neither, by implication, did their followers. He, however, believed in the right God, and so, he presumed, did his compatriots, or at least most of them.81 General William Boykin, the man tasked to capture bin Laden, was just as sure, reassuring his fellow supplicants at his Oregon church that theirs is a ‘real God’, and a ‘bigger’ one too.82 The insinuation (and depictions of Islam have always, as Edward Said confirms, been matters of ‘insinuation’) was clear.83 Where God-fearing Christians went to church, the false prophets of militant Islam were depicted scurrying about from cave to cave indulging in all kinds of cultish rituals; just, indeed, as Garnet’s Jesuits were portrayed as flitting from priest-hole to priest-hole, only occasionally venturing into the light to administer all the horrors of the Popish mass. God, as President Bush reassured his people, is not ‘neutral’.84 It was his ‘strong belief ’ that the cause for which America fought, the cause of freedom, was the ‘Almighty’s gift’.85 The messianic rhetoric reached something of an apogee in the President’s address at the National Cathedral in Washington, five days after 9/11. ‘God’s signs’, he declared, ‘are not always the ones we look for’. But 9/11 was such a ‘sign’, a confirmation that America had a ‘responsibility to history’ to ‘answer these attacks and rid the world of evil’. It was a divine ‘calling’.86 The messianic tone is given centre-stage in David Hare’s Stuff Happens; a play which, its author claims, is akin to a ‘Shakespearean tragedy’ precisely because it is about the ultimately fatal consequences of profound political dishonesty.87 Hare’s Bush sees himself as God’s messenger, a latter-day crusader, or at least one inclined to wave enthusiastically as he sends others on his behalf.88 The central character in Stuff Happens never speaks; except, it appears, to George Bush. God, Bush claims, ‘wants me to do it’. God, he repeats, as the play closes, ‘told me to strike Al Qaeda’.89 Bush’s contempt for the law is rooted in a defining belief; that,

80

Jackson, n 77 above, at 112–13. Ibid 68. 82 In D Rose, Guantanamo: America’s War on Human Rights (London, Faber and Faber, 2004) 138–9. 83 E Said, Orientalism (Harmondsworth, Penguin, 2003) 320. 84 Jackson, n 77 above, at 144, and also 146. 85 In Rees, n 75 above, at 368–9. 86 Jackson, n 77 above, at 143 and 145. 87 See Hare’s comments in the Guardian, 30 May 2006, 10, that the mark of political tragedy lies in the ‘conflict between the politicians’ true intentions and their purported intentions’. Shakespeare, he concludes, ‘tells us in plays like Macbeth that this scenario can never improve’. 88 D Hare, Stuff Happens (London, Faber and Faber, 2004) 17, 19. 89 Ibid 9–10, 15, 119. 81

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as a latter-day prophet, he has the authority of a greater testament. The messianic tone provides simplicity; the simplest expression of the pervasive delusion, the simplest, and most troubling, justification for the abrogation of legal principle. Hare closes his play with an Iraqi voice contemplating the ‘uncounted’ dead, and lamenting a country that has been ‘crucified’.90 The irony is immediate. It finds an apparently unwitting, but no less tragic, echo in Ashcroft’s declaration, again in the months immediately following 9/11, that ‘Islam is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you’.91 The true depth of the irony can perhaps only be appreciated by the parents of those thousands who have since died in pursuit of the ‘war on terror’ in Afghanistan and Iraq. This rhetoric, of testament and crusade, is as reckless as it is ignorant and perverse. Slavoj Zizek warns against ‘our warriors on terror’ seemingly ‘ready to wreck their own democratic world’ out of a visceral ‘hatred for the Muslim other’.92 He is right. There is little to be gained by situating Islam as an enemy, just as there is little to be gained by constructing fantastical bogey-men.93 But we continue to do so all the same. Islamophobia has become a hallmark of modern Western popular culture, the image of the devious, rapacious, endemically violent Islamic terrorist a staple of our cinematic and literary diet. Where the ‘chosen people’ were once terrified by the dreaded Papist, they are now terrified by the dreaded Islamic. It is a fear, as Edward Said suggests, that has, over the centuries, become ‘woven into the fabric’ of Western cultural ‘life’.94 Here again, our craving for terror, and to be terrified, seems to be unquenchable. We live, as Benjamin Barber has rightly suggested, in an ‘empire of fear’, possessed of a terror that we have essentially ‘conjured’ for ourselves.95 The mythology of al-Qaeda, and all its constituent mythologies, of suicidebombers and insurgents, fundamentalists and jihadists, is all-consuming. Set within the broader heritage of orientalist fetish and prejudice, it raises ghostly networks of highly trained Islamic terrorists, roaming, as President Bush was so keen to advise us, the streets of London and New York.96 The reality, of course, is rather different. On closer inspection, it is apparent that there are myriad essentially autonomous Islamic terrorist groups, each grounded in particular geopolitical contexts, each pursuing often radically different theological agendas. What passes for ‘al-Qaeda’ is merely one loosely defined variant of political Islamism, its projected leader, Osama bin Laden, one former mujahideen warlord who, partly through his own strategic acumen, and partly through the naivety of

90 91 92 93

Ibid. 120. In T Seto, ‘The Morality of Terrorism’ (200) 35 Loyola of Los Angeles L Rev 1261. Zizek, n 75 above, at 84. See Ahdaf Soueif, Mezzaterra: Fragments from the Common Ground (New York, Anchor, 2004)

19. 94 95 96

See Said, n 83 above, at 48–9, 59, 60–3, 94–5, 232–3. See Barber, n 78 above, at 18, 33. See Burke, n 75 above, at xxv.

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his pursuers, has acquired for himself an iconic status. Ultimately, the al-Qaeda so cherished by our political leaders, and so much of our media, is essentially a fantasy, a ‘mode of thinking’, a ‘discourse’; one that is sufficiently vague and ‘messy’ that it can be readily used and misused to suit.97 Of course, the iconic, fantastical image matters, hugely. In the manner of a self-fulfilling prophesy, it lends a coherence to Islamist terrorism which would not otherwise be readily discernible, whilst also nurturing the discourse of fear so vital to the myriad wars which are currently engaged against terrorism, against Taliban ‘mullahs’, Chechen ‘rebels’, Iraqi ‘insurgents’, and so on. It is a fundamental, if historically familiar, deceit. And it should trouble us. First, because the raising of spectres does indeed fulfil prophesies. With each passing ‘war’, the Islamic world becomes ever more radicalised, its youth ever more intent upon embracing the ‘fury for God’.98 And secondly, because the constant weaving of counter-terrorist mythology actually serves to detract from the need to address the real threat that exists. If we pretend that there is an identifiable enemy, one that might be defeated in a ‘war on terror’, our strategies to counter the terrorism which we actually experience, at the hands of various disenchanted and largely dislocated individuals and groups, will remain ineffective.99 The rhetoric of crusade has been more recently overlaid by a more prosaic rhetoric of pre-emptive self-defence and weapons of mass destruction. But its presence cannot be entirely despatched. It is raised, for instance, whenever politicians start ruminating about the need to protect ‘our values’. Prime Minister Blair seems to ruminate much upon this subject, as David Hare notes. His Blair, in Stuff Happens, constantly strives to locate a moral justification for war, but remains wary that a more blatant invocation of divine injunction, of the kind declaimed by his American counterpart, is likely to be received with derision by his own compatriots. Instead, he prefers to recast the ‘war against terror’ as a war in defence of the ‘free and democratic world’ and, as such, a ‘moral duty’.100 The problem with invoking such a morality is obvious. It can very easily transmute into talk about cultures and civilisations, and their presumed merits and demerits, and their supposed clashes. Makua Matua argues that the ‘war on terrorism’ is a thin mask for a war on ‘Islamic traditions and political projects’, the realisation of the ‘them-and-us dialectic’ which underpins the project of modernity.101 Tariq Ali likewise identifies the war as a simple expression of neo-liberal ‘imperialism’.102 The argument, which finds an original expression in the writing

97

Ibid 1–2, 10–14, 24. Ibid 274–6, 284. 99 Ibid 15–16, 291. 100 Hare, n 88 above, at 18. 101 M Mutua, ‘Terrorism and Human Rights: Power, Culture and Subordination’ (2002) 8 Buffalo Human Rights L Rev 2. 102 Tariq Ali, Babylon, at 3, 143, 155. 98

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of Edward Said, is only too familiar.103 It finds contemporary sustenance in Samuel Huntington’s notorious ‘clash of civilizations’ thesis.104 Gilbert Achcar’s derivative ‘clash of barbarisms’ thesis is rooted in the same intellectual subsoil.105 Whilst there is indeed a danger that such prophecies will become self-fulfilling, it must also be admitted that there does indeed seem to be something of a cultural ‘fault-line’ between the ‘West’ and Islam; one which, of course, a ‘war on terror’ will do little to stabilise.106 Ultimately, the presumed, or contested, acuity of the ‘clash’ of civilisations thesis is less important than the insinuation. There may be no necessary association between militant jihad and the philosophy or jurisprudence of Islam.107 It may well be the mutant figment of an orientalist, even racist, political and cultural imagination. But it does not need to be accurate or apposite. What matters, sadly, is that so many are deluded by the supposition. Again, the prophecy fulfils itself. On the one hand, there are plenty of disenchanted and dispossessed young Muslims who are all too easily persuaded into thinking that theology justifies terror. To them, bin-Laden’s rhetoric ‘makes sense’, in the same way as Borromeo’s Testament impelled young Catholics such as Robert and Thomas Catesby to risk their lives 400 years ago.108 On the other hand, there is a ‘Western’ populace that appears to be all too ready to embrace the rhetoric of the apocalypse, to suppose that the ‘blatant Beast’ is abroad once more, to believe that America and its allies have a moral duty, a divine calling even, one which justifies the presence of their crusaders across vast tracts of the middle East, from Qom to Kabul. The alternative fantasies, as is so often the case, are mutually sustaining. They nurture the terror, and the tragedy. On 5 November 1753, another Garnett, no relation of the unfortunate Henry, John Garnett, Bishop of Ferns and Leiglin, preached a sermon at Christ Church, Dublin. It was, of course, in commemoration of the peculiarly wedded ‘anniversary of the Gunpowder Plot and of the happy arrival of King William III’. Anticipating the emergence of a nascent Enlightenment, and embracing ‘the cultivation of the liberal arts and sciences’, he concluded with the impassioned hope that ‘the Christian world at length will be right rid of crusades and pilgrimages, those quixoticisms in religious chivalry’, and, with them, the ‘pious solecism in holy-church politiks’ which, for so long, had nurtured the associated

103 See Said, n 83 above, particularly at xiii, 1–3, 12, 43, 52, 201–4, 319–20, and also Power, Politics and Culture (Bloomsbury, 2005) 242–3 and 388–92. 104 See S Huntingdon, The Clash of Civilizations and the Remaking of World Order (Simon and Schuster, 1997) 129–21, 28, 248–52. 105 Achcar, n 79 above, at 84. 106 Ruthven, n 76 above, at 240–3, and Huntingdon, n 104 above, at 252–4, 281–91. 107 N Feldman, After Jihad: America and the Struggle for Islamic Democracy (Farrar, Straus and Giroux, 2003) 6–7, 20–1, 62–3, 75–6, 232–4. See also Ruthven, n 76 above, at 48, and Barber, n 78 above, at 202–3. 108 See Rees, n 75 above, at 338–43 and 370–1, and also Barber, n 78 above, at 24, and Wilson, n 2 above, at 136.

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mythologies of holy war. Such infantile rhetoric, and infantile theology, must, he predicted, ‘be now no more’.109 Sadly, it seems, not quite yet.

109

In Sharpe, n 5 above, at 112.

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13 ‘Terras Astraea reliquit’: Titus Andronicus and the Loss of Justice PAUL RAFFIELD

LAW, JUSTICE AND THE EXERCISE OF EXECUTIVE POWER T IS AN irony that would not have been lost on Shakespeare that the theatre at which his tragedy, Titus Andronicus, was originally staged should have been the subject of juridical proceedings between law-maker and citizen, nearly 400 years after the play’s first performance there in 1594.1 Subsequent to the discovery in 1989 of the remains of the Elizabethan Rose Theatre, a trust was formed whose purpose was to save the site of the theatre from development as an office block.2 The Rose Theatre Trust applied to the Secretary of State for the Environment to have the property listed under the Ancient Monuments and Archaeological Areas Act 1979, section1. Following the refusal of the Secretary of State to list the site, the Trust was granted leave to apply for judicial review of the decision. The application for review was turned down on the grounds of insufficient standing: the party seeking judicial review of an administrative decision did not have sufficient interest in the subject matter for which review was being sought.3 The case raised an important constitutional issue, concerning the right of aggrieved citizens to obtain a hearing in the courts. The decision appeared at least to raise doubts

1 A convincing argument for this date is provided by Jonathan Bate in the Arden edition of the play: Titus Andronicus (Jonathan Bate (ed), London, Arden, 1995) Introduction, 69–79. All references to the play are from this edition. 2 There is a useful history of the Rose Theatre, and the legal struggle to preserve its remains, in Christine Eccles, The Rose Theatre (London, Nick Hern, 1990). 3 R v Secretary of State for the Environment, ex parte Rose Theatre Trust Ltd [1990] 1 QB 504.

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about the applicability of Dicey’s dictum that the rule of law requires that disputes over the legality of government acts should be decided by the courts, acting independently of the executive.4 In the torrent of blood that engulfs the action of Titus Andronicus, it is often forgotten (by audiences and critics alike)5 that the play is concerned to a great extent with the dire effects on the citizenry of absolute governance by an autocratic law-maker. The bloody plot is initiated by the infelicitous choice of ruler, to succeed the recently deceased emperor. Titus is the popular candidate but he implores the Roman citizens to defer to the ancient principle of primogeniture and accept Saturninus as their legitimate ruler (1.1.227–33). A period of unjust imperial rule is subsequently enacted, in which every arbitrary whim of the Emperor is accorded paramount legal status. The equitable principles of common law, encapsulated by the medieval jurist Henry de Bracton in the phrase, lex facit regem (‘law makes the king’),6 are rejected in favour of the civilian maxim, quod principi placuit vigorem legis habet (‘that which pleases the prince has the force of law’). The reign of Saturninus reflects the central tenet of Tudor imperial monarchy (following the Acts of Supremacy of 1534 and 1559) that the king is under God but not law, because the king makes the law. The inherent injustice of the civilian code is perhaps best exemplified in the play by the execution of the Clown, at the instruction of the Emperor, Saturninus. His only offence had been to deliver a letter from Titus to the Emperor (4.4.39–48). Critics have expressed their dissatisfaction at the summary manner in which the Clown is dispatched to the gallows. RA Foakes interprets the execution of the Clown as an example of the author’s desire to shock: a representation of gratuitous violence, which Foakes believes to be a characteristic fault of the play.7 Francis Barker makes the important observation that before meeting Titus and receiving his petition for justice, which he agrees to deliver to the Emperor, the Clown was already on his way to the tribuni plebis, in their judicial capacity as magistrates, to adjudicate over a legal dispute, ‘betwixt my uncle and one of the emperial’s men’. (4.3.91–3)8 As so often in the play, law and legal procedure are placed in the narrative foreground of a particular scene.9 Having identified the theme of reasonable access to justice, Barker subsequently

4

AV Dicey, Introduction to the Study of the Law of the Constitution (London, Macmillan, 1959)

193. 5 Possibly the first recorded criticism of the play is included in a letter home, written in 1596 by a French tutor in the household of Sir John Harington: ‘le monstre a plus valu que le sujet’, quoted in RA Foakes, Shakespeare and Violence (Cambridge, Cambridge University Press, 2003) 56. 6 Henry de Bracton, De Legibus et consuetudinibus Angliae (SE Thorne (trans), 4 vols, Cambridge, MA, Harvard University Press, 1968−77). 7 Foakes, n 5 above, at 56, 57. 8 Francis Barker, The Culture of Violence: Essays on Tragedy and History (Manchester, Manchester University Press, 1993) 145. 9 See eg, Act 3 scene 1, in which the judges process past Titus, ignoring his pleas to ‘reverse the doom of death’ on Quintus and Martius (3.1.24).

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finds the decision to hang the Clown ‘inexplicable’, ‘arbitrary’ and ‘strange’.10 By providing no reason for the Emperor’s decision,11 Shakespeare demonstrates the inherent injustice of imperial rule. It is the very arbitrariness of the action that Shakespeare emphasises, in allowing Saturninus not a moment’s reflection before condemning the Clown to death. The scene is inexplicable and strange only if it is forgotten that in the 1590s, the equitable principles of common law ideology were often blatantly ignored by the prerogative courts, notably by the Court of High Commission. It would be far-fetched in the extreme to compare the decision taken by the Secretary of State for the Environment, concerning the remains of the Rose Theatre, with the tyrannical rule of a fictional Roman emperor. The most that might be argued by way of analogy is that in both instances, one of the principles of natural justice was eschewed, as the law did not allow its subjects recourse to independent arbitration by an impartial tribunal. The legitimacy of the unrestricted actions of an omnipotent executive is a theme that weaves its labyrinthine path through the numerous, graphic murders and mutilations of Titus Andronicus. From a constitutional perspective, the absence of any institutional structure, with which to restrain the conduct of Saturninus, poses the obvious questions: first, does the person of the emperor embody the law, and if so, are there any lawful limits to his power? Secondly, if he is not the embodiment of law, but rather a symbol of unity and nationhood (in the words of Sir Edward Coke, ‘a hieroglyphic of the laws’)12 where does the law exist that can restrain his unlawful acts? Comparisons between the imperious conduct of Saturninus and the Imperium of the post-Henrician Tudor monarchs were inevitably to be drawn by contemporaries of Shakespeare. As Thomas Heywood observed, ‘If wee present a forreigne History, the subject is so intended, that in the lives of Romans, Grecians, or others, either the vertues of our Country-men are extolled, or their vices reproved’.13 It is the purpose of this chapter to consider the constitutional significance of Titus Andronicus, in the historical context of the last decade of Elizabethan rule. There are three broad themes that I consider. The first is the reaction of those writers of the early modern period who, faithful to the equitable principles of the common law and the ancient constitution, opposed the increasing autocracy of

10

Barker, n 8 above, at 168. Richard Wilson argues that the scene was possibly based on a petition for freedom of religion, drafted by the Catholic Viscount Montague in 1585, and ‘thrust into the Queen’s hand’ as she walked in Greenwich Park. The petitioner was subsequently imprisoned by Walsingham, and died a prisoner: Richard Wilson, Secret Shakespeare: Studies in Theatre, Religion and Resistance (Manchester University Press, 2004) 30. 12 Edward Coke, ‘Postnati. Calvin’s Case’ in Part 7 (1608) of The Reports of Sir Edward Coke, Knt in English (George Wilson (ed), London, Rivington, 1777) vol IV, 11b. 13 Thomas Heywood, An Apology for Actors (London, N Okes, 1612) sig F3. 11

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government during the 1590s, expressing a preference instead for limited monarchy.14 Act 1 of Titus Andronicus is largely concerned with the succession to the imperial throne, and would undoubtedly have had contemporary resonances in Elizabethan England, as the heirless Queen approached the end of her life. Jonathan Bate describes Titus Andronicus as a ‘descent into imperial tyranny’,15 reflecting speculation about an uncertain future once Elizabeth had died. It might be added that the descent into tyranny had begun during the last decade of Elizabethan imperial rule, as the jurisdiction of the prerogative courts threatened to supersede that of the courts of common law. The existence of an unwritten law, superior in authority to imperial edict, is a theme that not only resonates throughout the play; but also underscores The Reports of Sir Edward Coke, which he was compiling during the 1590s. Coke equated the supreme judicial authority of common law with the divine provenance of natural law; of which common law was the rational, earthly manifestation. The failure of natural law to redress the shortcomings of imperial law is a significant theme of Titus Andronicus, and one that I consider here in the context of Coke’s belief that law is unerring reason, adhering to a divine purpose.16 I analyse next the motifs of musical harmony and discord, which provide important aural images throughout the play. I relate these metaphors to the Platonic notion of order (kosmos) as a symbol of perfection (areté); the achievement of which, in the state or in the individual, depends upon the correct ordering of parts and the performance by each part of its allotted function.17 The correlation between order, justice and harmony is emphasised and the distinction drawn between unjust imperial edict (lex) on the one hand, and equitable, unwritten lex terrae (ius) on the other. Finally, I consider the symbolic importance of ancient Rome to the development in England of a body of literature that might loosely be termed republican in nature. Livy’s Roman History and Plutarch’s Lives were synthesised by Shakespeare in order to depict an archetypal state that was recognisably Roman in its political structure, but not of a specific period in ancient Roman history. The story of the destruction of Troy, its resurrection in Rome (for which Virgil’s Aeneid provided most of the source material), and its re-emergence in London as

14 The first extensive treatise on the benefits to English subjects of limited monarchy was Sir John Fortescue, Difference between an Absolute and Limited Monarchy (c 1471), published asThe Governance of England (C Plummer (ed), Oxford, Clarendon, 1885). 15 Titus Andronicus, n 1 above, Introduction, at 21. 16 Lex est certa ratio e mente divina manans: title page to Part 1 (1600) of Coke, The Reports, n 12 above. On Coke, natural law and the influence of classical jurisprudence over the substantive development of English common law in the early seventeenth century, see Paul Raffield, ‘Contract, Classicism, and the Common-Weal: Coke’s Reports and the Foundations of the Modern English Constitution’ (2005) 17 Law and Literature 69. 17 Plato, The Republic, Book 4, 427D–434C, 441C–445B.

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Troynovant is a literary device that was employed by Elizabethan poets, dramatists and common lawyers, as a means of establishing the ancient credentials of the English state and English common law.

FIN DE SIÈCLE IMPERIAL GOVERNMENT AND THE COMMON LAW In a scene of almost unbearable pathos, before his petitions for justice are shot into the heavens, Titus informs his brother Marcus that Astraea (the goddess of justice) has left the earth: Terras Astraea reliquit: be you remembered, Marcus, She’s gone, she’s fled. Sirs, take you to your tools. You, cousins, shall go sound the ocean And cast your nets: Happily you may catch her in the sea; Yet there’s as little justice as at land. (4.3.4–9)18

The image of the virgin goddess of justice, fleeing the wickedness of mankind to attain iconic status in the heavens as the constellation, Virgo (drawn from Book I of Ovid’s Metamorphoses), was one of the most daring contemporary allusions that Shakespeare incorporated into any of his plays. As Bate has noted, ‘Queen Elizabeth was mythologised as the returned Astraea of Virgil’s fourth eclogue’.19 Astraea was so thoroughly associated in the Elizabethan mind with the person of the Queen that any suggestion that the goddess of justice had abandoned the world was potentially disquieting.20 Titus Andronicus was by no means the first dramatic work to represent public concerns about the successor to Elizabeth I. As early in her reign as January 1561, the Inner Temple had presented, in the presence of the Queen, The Tragedy of Ferrex and Porrex (also known as The Tragedy of Gorboduc), by Thomas Norton and Thomas Sackville. The play is of great literary interest, as it was the first full-length dramatic work to be written in blank verse. Dramatists were awakening to the suggestive power of the poetic form and its capacity to transmit political metaphors to a receptive audience. In The Defence of Poetry, Sir Philip Sidney refers to the ‘wholesome Iambic, who rubs the galled mind, in making shame the trumpet of villainy, with bold and 18 The pathos is heightened by the tragic-comic spectacle of the one-handed Titus distributing arrows to his family members and instructing them to ‘loose when I bid’ (4.3.59). Barker refers accurately to ‘nervous and uncomfortable laughter’, which the play ‘has both engendered and received’, n 8 above, at 167. 19 Titus Andronicus, n 1 above, Introduction, 28. 20 See especially, Frances A Yates, Astraea: the Imperial Theme in the Sixteenth Century (London, Routledge and Kegan Paul, 1975) 75–80.

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open crying out against naughtiness’.21 Sidney is especially astute in his assessment of tragic drama and its unique capacity to embody jurisprudential and political ideals such as justice, equity and liberty; and their antitheses: tyranny, inequality and oppression. Sidney himself employs two popular poetic images, the anatomical and the architectural (both of which were used extensively by Shakespeare, in Titus Andronicus), to argue that ‘Tragedy, that openeth the greatest wounds, and showeth forth the ulcers that are covered with tissue; that maketh kings fear to be tyrants, and tyrants manifest their tyrannical humours; that, with stirring the affects of admiration and commiseration, teacheth the uncertainty of this world, and upon how weak foundations gilden roofs are builded’.22 Ferrex and Porrex depicts the terrible consequences of a misguided succession, which left ‘the land for a long time almost desolate and miserably wasted’.23 More than 30 years after the Inner Temple’s performance of Ferrex and Porrex, at the first performance of Titus Andronicus, a debate over the correct form that the succession should take provides much of the dialogue in the opening scene, when Saturninus and Bassianus lay claim to the imperial throne. But more closely linked to the themes of the play, and to the polity of Elizabethan and postElizabethan England, is the issue of the form that governance would take, once the issue of the succession had been decided. Indissolubly associated with the particular form of governance are the effects on the constitutional structure of the state and the lives of individual citizens. The 1534 Act of Supremacy (26 Hen 8, c 1) had the immediate effect of severing English jurisdiction from that of Rome, thereby arrogating to the Crown unrestricted imperial power. Henry VIII annexed all the necessary jurisdictions with which to fulfil his imperial claims. The idea that the monarch was under God but not law was axiomatic of Henrician rule. It ran counter to Fortescue’s theory of mixed monarchy, which was predicated upon the existence of dominium politicum et regale.24 As John Guy has noted, the success of Henrician government ensured the enhancement of regale at the expense of politicum.25 The

21 Sir Philip Sidney, ‘The Defence of Poetry’ in Sir Philip Sidney: the Major Works (Katherine Duncan-Jones, Oxford University Press, 2002) 212–50 at 229. It is noteworthy in the political context of Gorboduc that Thomas Norton became a notorious persecutor and state-torturer of Catholics, and was known as ‘Rackmaster’ Norton. See Michael AR Graves, Thomas Norton: the Parliament Man (Oxford, Blackwell, 1994). For the argument that Gorboduc ‘was probably a source for Titus Andronicus’, see Dympna Callaghan and Chris R Kyle, ‘The Wilde Side of Justice in Early Modern England and Titus Andronicus’ in Constance Jordan and Karen Cunningham (eds), The Law in Shakespeare (Basingstoke, Palgrave Macmillan, 2007) 38–57, at 41. 22 Sidney, Major Works, n 21 above, at 230. 23 Thomas Norton and Thomas Sackville, The Tragedie of Ferrex and Porrex shewed on stage before the Queenes Maiestie…the xviii day of Ianuarie 1561, by the gentlemen of the Inner Temple (London, J Daye, 1570) ‘The argument of the Tragedie’, f A1. The political symbolism of Ferrex and Porrex is discussed in Paul Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (Cambridge, Cambridge University Press, 2004) 127–31. 24 Fortescue, n 14 above, at 109. 25 John Guy, Tudor England (Oxford, Oxford University Press, 1990) 13.

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imperial theory of kingship was compatible neither with the equitable principles of justice that were espoused by Christopher St German in Doctor and Student,26 nor indeed with the works of humanist writers, such as Thomas Elyot, whose political theories were heavily influenced by Aristotelian ideals of civic republicanism. The absolute Imperium of the monarch was implicitly criticised in Elyot’s description of the perfect commonwealth, which he characterised as ‘disposed by the order of equity and governed by the rule and moderation of reason’.27 The 1559 Act of Supremacy (1 Eliz, c 1) affirmed the divine provenance of Elizabethan supremacy, in relation to which Parliament was to play the subsidiary role of a legislative instrument: the institutional manifestation of the royal prerogative.28 Conscious of the potentially unrestricted political power with which the theory of divine right endowed the monarch, the Elizabethan cleric (and Master of the Temple), Richard Hooker, reiterated Bracton’s dictum that ‘The axioms of our regal government are these: “Lex facit regem”’.29 Elizabeth had from the start of her reign laid particular emphasis on the extensive powers of the royal prerogative. Fear of invasion from abroad and rebellion from within led, in the last decade of Elizabethan rule, to its more expansive employment. The constitutional implications of fin de siècle imperial rule became most apparent as the Court of High Commission, under the leadership of Bishop Aylmer, supplanted the jurisdiction of the courts of common law in ecclesiastical causes. Notoriously, the ex officio mero prosecutions of High Commission had an historical basis in Roman canon law, the jurisdiction of which had been severely limited by the Act of Supremacy of 1534. In procedural terms, the Courts of High Commission were inquisitory, compelling defendants (on oath) to answer questions that were put to them by ecclesiastical adjudicators. The fundamental question, concerning the limits (if any) to the imperial power of the Queen, was raised in Cawdrey’s Case in 1591, as recorded by Coke in Part 5 of The Reports. The case concerned the deprivation of a minister’s benefice by the Court of High Commission. The exercise of the royal prerogative, which authorised the arbitrary powers of High Commission and its civilian officials, was justified on the grounds that ‘by the ancient laws of this realm, this kingdom of England is an absolute empire and monarchy’.30 The 1559 Act of Supremacy conferred upon the Queen, the ‘power to assign commissioners to exercise and

26 On St German and the constitutional sovereignty of the common law, see John Guy, ‘The Battle of the Books’ in Reassessing the Henrician Age: Humanism, Politics and Reform, 1500–1550 (Oxford, Blackwell, 1986) 100–19; see also John Guy, Christopher St German on Chancery and Statute (London, Selden Society, 1985). 27 Thomas Elyot, The Book Named the Governor (London, Dent, 1962) 1. 28 On Elizabethan Parliaments and the royal prerogative, see John Guy, ‘The Elizabethan Establishment and the Ecclesiastical Polity’ in The Reign of Elizabeth I: Court and Culture in the Last Decade (John Guy (ed), Cambridge, Cambridge University Press, 1995) 126–49, at 133–6. 29 Richard Hooker, Of the Laws of Ecclesiastical Polity (AS McGrade (ed), Cambridge, Cambridge University Press, 1989) 147. 30 Coke, ‘Caudrey’s Case. Of the King’s Ecclesiastical Law’ in Part 5 of The Reports, n 12 above, vol III, viiib. The constitutional implications of the case are discussed in Guy, n 28 above, at 131–2.

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execute all manner of jurisdiction spiritual, to visit, reform, &c. all schism and heresy, &c. and enormities’.31 Coke argued, contrary to the notion of unlimited imperial power, that ‘the construction of ’ the above statute ‘belongs to temporal Judges’.32 Coke’s intransigent stance on this issue was a principled response to the constitutional implications of the power vested in High Commission. The civilians sought for themselves the exclusive right to decide what constituted an ecclesiastical cause in any particular case. Also, they exercised the power of imprisonment over a range of offences that were of only peripheral ecclesiastical interest, for example, for non-payment of tithes or, as in Sir Anthony Roper’s Case, ‘for a pension out of a rectory impropriate, of which Sir Anthony was seised in fee’.33 Coke sought to assign to High Commission a limited role of discussion and declaration on metaphysical issues, leaving the courts of common law to resolve matters that were traditionally within their jurisdiction; notably, in the area of disputes concerning property, and temporal constitutional issues such as imprisonment of subjects. Coke was adamant that High Commission had no lawful authority to ‘confound the jurisdiction of the Ordinary’.34 The strong implication of Coke’s interpretation of judicial decisions in these cases is that the power of High Commission was arbitrary and irrational. In relation to these powers, Coke states ‘that it was good for the weal public, that the Judges of the common law should interpret the statutes, and acts of Parliament within this realm’.35 In other words, the common law judiciary was the supreme constitutional arbiter and interpreter of legislative intent. By drawing attention to the good of the ‘common weal’, Coke not only tacitly approves the republican principle, salus populi suprema lex est;36 implicit also in the above comments is Coke’s belief in the constitutional supremacy of common law and the hegemony of common lawyers. The concerns expressed by Coke in relation to the tyrannical implications of imperial rule are echoed by Shakespeare in Titus Andronicus. Both writers employed powerful imagery in order to convey uniquely the nature of governance and its relationship to the lives of citizens within the early modern English state. As Allen D Boyer noted in his study of Coke and the Elizabethan era, ‘What Shakespeare has been to those who write in English, Sir Edward Coke has been to the lawyers of the English-speaking world’.37 Coke was no dramatist, and was less than well-disposed towards the theatre and its practitioners. In a speech, delivered to the grand jury at the assizes in Norwich in 1606, he gave the following

31

Quoted in Coke, ‘Sir Anthony Roper’s Case’ in Part 12 of The Reports, n 12 above, vol VII, 46b. Ibid ‘Nicholas Fuller’s Case’, 42a. 33 Ibid ‘Sir Anthony Roper’s Case’, 46b. 34 Ibid 47a. 35 Ibid 85a–85b. 36 In Part 10 of The Reports, n 12 above, Coke explicitly states that ‘the reason thereof is pro bono publico, for salus populi is suprema lex’, vol V, 139b. 37 Allen D Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, Stanford University Press, 2003) Preface, ix. 32

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helpful advice: ‘The abuse of stage players, wherewith I find the countrey much troubled, may easily be reformed: they having no commission to play in any place without leave: and therefore if by your willingnesse they be not entertained, you may soone be rid of them’.38 His antipathy towards actors did not dissuade Coke from using identical imagery to that employed by Shakespeare in order to represent the equitable social contract that he believed should characterise the constitutional relationship between magistrate and subject of law. Coke’s insistence that ‘As the ligatures or strings do knit together the joints of all the parts of the body, so doth ligeance join together the Sovereign and all his subjects’ bears a striking stylistic resemblance to the anatomical metaphors that are enlisted by Menenius, in order to describe the body-politic to the rebellious citizenry in Coriolanus.39 Bate is alert to the legal and historical context in which Titus Andronicus situates the common law principle of precedent, noting the use by Titus of ‘the language of the law’ in the final scene of the play.40 Through the systematic reporting of the ratio decidendi of contemporary cases (however subjective and opinionated that reporting undoubtedly was), and his emphasis on the antiquity of common law and the legitimacy that its immemorial nature conferred on the decisions of its judges, Coke elevated the binding power of precedent to hitherto unknown levels. Kevin Sharpe makes the important observation that the synthesis between past and present gave to history an exalted status in the governance of early modern English society.41 If, as Bate suggests, Titus is ‘a dramatic antecedent to Sir Edward Coke’,42 his solitary quest for justice and equitable governance marks him out also as the dramatic descendant of the Lancastrian Chief Justice and apologist for the constitutional supremacy of common law, Sir John Fortescue. In The Governance of England, Fortescue asserts that under dominium politicum et regale (which he claims provides the English constitutional model), a ‘kynge may not rule his peple bi other lawes than such as thai assenten unto’.43 As Alan Cromartie has remarked, Fortescue’s office as Chief Justice under Henry VI provided ‘unimpeachable authority … for a range of near-republican opinions’.44 As Cromartie also notes, and of particular relevance to the initiation of the plot

38 Sir Edward Coke, A Charge Delivered to the Grand Jury at the Assizes Holden at Norwich, 4th August, 1606; Containing a Just Delineation of Popery (London, JJ Stockdale, 1813) 53. 39 Coke, ‘Postnati. Calvin’s Case’ in Part 7 of The Reports, n 12 above, vol IV, 4b; Coriolanus, 1.1.94–161. For a detailed analysis of Coke’s use of anatomical imagery in Calvin’s Case, see Raffield, ‘Contract, Classicism and the Common-Weal’, n 16 above, at 79–82. 40 Titus Andronicus, n 1 above, Introduction, at 28. 41 Kevin Sharpe, Politics and Ideas in Early Stuart England (London, Pinter Publishing, 1989) 174–81. 42 Titus Andronicus, n 1 above, Introduction, at 28. 43 Fortescue, n 14 above, at 109. 44 Alan Cromartie, The Constitutionalist Revolution: an Essay on the History of England, 1450–1642 (Cambridge, Cambridge University Press, 2006) 21.

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in Titus Andronicus, Fortescue served the House of Lancaster, the lives of whose members depended upon the successful claim of King Henry VI to the lawful succession.45

ORDER, HARMONY AND MUSICALITY Titus claims that justice, in the form of the goddess Astraea, has fled the earth. The Andronici fire their shafts into the heavens; attached to each arrow an injunction to the gods from Titus, enjoining them ‘To send down Justice’. (4.3.52) It is instructive briefly to consider the philosophical and juristic distinction between justice and law, as this distinction characterises the political polarity that engenders the personal animosity between Saturninus and Titus. Saturninus, the imperial law-maker, is uncomprehending when he reads the contents of Titus’s divine injunctions. It appears that he is devoid of any ironic intent, when he remarks of Titus’s arrows that: ‘A goodly humour, is it not, my lords? / As who would say, in Rome no justice were’. (4.4.19–20) The representation of justice can be traced to pre-Roman and, indeed, to pre-Hellenic antiquity. Common to all these depictions of the goddess of justice is her femininity. For the ancient Egyptians, she was known as Ma’at, and was usually portrayed holding a sword and wearing an ostrich feather in her hair. The Roman goddess, Justitia, is probably the most familiar representation: usually portrayed as holding balanced scales in one hand, a sword in the other, and wearing a blindfold. The Digest of Justinian confirms the feminine association, stating that law is the queen of all things divine and human (Lex est omnium divinarum humanarumque rerum regina, The Digest, 1.3.2).46 But it is the Greek goddess of justice, Themis, who represents most clearly the ideals of equity, community and consent, to which the juristic principles of Fortescue, St German and Coke are traceable.47 Of great significance to the semiotics of legal iconography, unlike Justitia (her Roman counterpart), Themis was never depicted holding a sword: consent rather than coercion was her preferred form of governance.48 For Plato, justice was only one of the four cardinal virtues which the ideal state, described by him in The Republic, must possess (the others being wisdom, courage and discipline).49 Plato’s concept of dikaiosunê (justice) was not legalistic; as Alasdair Macintyre has argued, dikaiosunê was concerned with ‘allocating 45

Ibid. On the historical importance of the effigy or statue in legal iconology, see Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Los Angeles, University of California Press, 1985) 108–15. 47 John Selden, the early modern jurist and legal antiquarian, refers to ‘the Lady Common Law’ in Titles of Honour (London, W Stansby, 1614) f a3b. 48 On the mythological background of Themis, and her distinction from Dike (princess of justice), see Cathleen Burnett, ‘Justice, Myth and Symbol’ (1987) 11 Legal Studies Forum 79. 49 Plato, The Republic (Desmond Lee (trans), London, Penguin, 1987) 137, Book 4, 427d–434d. 46

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each part of the soul its particular function: sometimes translated as “justice”’.50 Plato’s idea of justice is inextricably linked to the notion of harmonious relations between the state and the individual, and between fellow citizens of the state. Roman justitia was concerned with formal, legal relations; whereas Greek dikaiosunê implied the ideal good of society, across a wide range of collective existence, not merely in terms of laws and their application. The theme of harmonious relations between governor and governed is central to Plato’s depiction of the state. He insists that justice should establish in the minds of all citizens, a ‘natural relation of control and subordination’,51 and that dikaiosunê regulates the functions of the other three virtues, ‘keeping all three in tune, like the notes of a scale’.52 The Greek nomos means both ‘tune’ and ‘law’, and as Trevor J Saunders notes, Plato employed the pun on nomos throughout The Laws, for example, in his assertion that ‘After the prelude [the preliminary analysis of the state] should come the “tune”, or more accurately a sketch of a legal and political framework’.53 The relationship between musical harmony and the making of good laws is a recurring theme throughout The Laws. Writing about the legal regulation of music in the Athenian democracy, Plato describes a ‘kind of song too, which they thought of as a separate class, and the name they gave it was this very word that is so often on our lips: “nomes” (“for the lyre”, as they always added)’.54 The association of the lyre with the harmonious governance of society was first recorded in the myth of Orpheus, and remained a central image in the iconography of common law during the early modern period. The musical metaphor of the stringed instrument was employed by the Elizabethan divine, Richard Hooker, with reference to the nature of kingship. In Of the Laws of Ecclesiastical Polity, Hooker aligns Christian theology with an Aristotelian model of community.55 The co-existence of church and state is a central tenet of Hooker’s communitarian ethos. In the ideal commonwealth that Hooker describes, the monarch is the unifying figure that links the church in an indivisible bond with the people. Crucially, the subject of power in Hooker’s commonwealth is not the monarch in person, but the ‘body of the commonwealth’.56 In such a polity, ‘where the King doth guide the state and the law the

50 Alasdair Macintyre, After Virtue: a Study in Moral Theory (London, Duckworth, 1981) 132. The other Platonic virtues are sôphrosunê (‘restraint imposed by reason’); andreia (courage); sophia (wisdom), ibid. 51 Plato, Republic, 161, Book 4, 444d. 52 Ibid, Book 4, 443d. 53 Plato, The Laws (Trevor J Saunders (trans), London, Penguin) 156, Book 5, 735a; see also, ibid, Notes, ch 9, n 1, 513. 54 Ibid, 107–8, Book 3, 700b. 55 On the influence of Aristotle over the political theory of Hooker, see Tod Moore, ‘Recycling Aristotle: the Sovereignty Theory of Richard Hooker’ (1993) 19 History of Political Thought 345. 56 Hooker, n 29 above, at 179.

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King, that commonwealth is like an harp or melodious instrument’.57 Hooker’s allusion to the musical harmony of Orpheus’s lyre demonstrates the potency of classical mythology and the resonance of its images in the minds of early modern writers. As George Hersey has noted, the myth of Orpheus and the lyre ‘records the moment when law was first introduced into the society that invented that myth’;58 the charmed beasts representing the barbarian state of mankind before law was introduced. The playing of music does not figure greatly in Titus Andronicus, but reference to music does. Where music is played, it is confined to flourishes, which usually signal the arrival of important personages in the Roman state, such as the Emperor, senators and tribunes. It is noteworthy that most of the music which Shakespeare specifically mentions is confined to the first scene of the play; this scene contains no fewer than eight stage directions that refer to the use of music. The music of Act 1 scene 1 is of a ceremonial kind, intended to convey the pomp, power and dignity of the Roman state: in the words of Saturninus, ‘Proclaim our honours, lords, with trump and drum’ (1.1.278). The exclusive use of drums and trumpets in the first scene, in the form of brief flourishes of a martial nature, suggests the imposition of imperial order rather than the natural order of the Platonic cosmos or the equitable political order of the Aristotelian city-state. Still less does the Rome of Titus Andronicus resemble the ‘melodious instrument’ of Hooker’s ideal commonwealth. Beyond the first scene of the play, there are only six stage directions that refer to the inclusion of music; three of which are in the final scene and signal the imminent arrival of a new imperial order, under the rule of Titus’s son, Lucius. The only contrast with the ceremonial flourishes of trumpets (accompanied by drums) occurs in the second scene of the play, in which the natural order of the forest is immediately juxtaposed with the artificial order of the Capitol. The scene starts with ‘a noise with hounds and horns’ (2.1.0) as Titus’s hunting party enters, and is soon followed by ‘a cry of hounds, and wind horns in a peal’ (2.1.10), as Saturninus and his party join them in the forest. The natural harmony of the forest, implied by the sounds of the hounds and the horns, is soon to be shattered irrevocably by the murders, mutilations and rape that take place there. In such inharmonious circumstances, the further use of music would be extraneous and inappropriate. Instead, the violated body of Lavinia becomes the mute embodiment of a discordant society, in which the intrinsic reason of natural law has been replaced by the irrationality of tyranny. Referring to the appalling act of mutilation and violation, perpetrated upon Lavinia by her barbaric assailants, Marcus Andronicus draws our attention to a central metaphor of the play: the body as

57 Ibid 146. On Hooker’s subjection of the monarch to the interests of society, see Peter Lake, Anglicans and Puritans? Presbyterianism and English Conformist Thought from Whitgift to Hooker (London, Unwin Hyman, 1988), 109, 201. 58 George Hersey, The Lost Meaning of Classical Architecture (Cambridge, MA, MIT Press, 1988) 5.

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the symbol both of the harmonious commonwealth, of the kind envisaged by Hooker, and of the ordo naturae.59 In contemplation of the terrible and pitiful sight of Lavinia, he laments that: O, had the monster seen those lily hands Tremble like aspen leaves upon a lute And make the silken strings delight to kiss them, He would not then have touched them for his life. Or had he heard the heavenly harmony Which that sweet tongue hath made, He would have dropped his knife and fell asleep, As Cerberus at the Thracian poet’s feet. (2.3.44–51)60

It is especially apt that Shakespeare should refer to Orpheus, the Thracian poet, in the context of the hideous crimes committed against Lavinia. As Marcus tells the audience, she was the personification of natural harmony; but such is the level of barbarity to which the subjects of tyrannical, imperial rule have sunk, that they do not hear the melodious charms of Orpheus’s lyre. Aurality and orality are recurring metaphors in the play:61 Lavinia cannot speak of her violation because her tongue has been cut out;62 unlike Cerberus, in the myth of Orpheus, the bestial Chiron and Demetrius are deaf to the sweet music of the lyre; Quintus and Martius, Titus’s sons, are denied the right to speak in their defence against the wrongful charge of the murder of Bassianus; and Saturninus and the Roman judiciary refuse to entertain Titus’s oral pleading for justice on behalf of his sons. Saturninus prejudges the guilt of Quintus and Martius and denies them even the semblance of a trial: ‘Let them speak not a word: the guilt is plain’. (2.2.301) The uncaring, unhearing judges process past Titus, on their way to the execution of his two sons. ‘Hear me, grave fathers’ (3.1.1), he entreats the patriarchs of the law, prostrating himself as they pass; but they are oblivious to his injunction for mercy. Lucius reinforces the metaphor of aurality by telling his father, ‘The tribunes hear you not’, reminding him four lines later that ‘no tribune hears you speak’. Titus replies that ‘if they did hear, / They would not mark me’ (3.1.28, 32,

59 On the political symbolism of the rape of Lavinia and the subsequent mutilation of her body, see Andrew Hadfield, Shakespeare and Renaissance Politics (London, Arden Shakespeare, 2004) 121. 60 With reference to the myth of Orpheus, Hersey states that Giambattista Vico, in La Scienza nuova seconda (1744), developed tropes of the word corda, meaning variously tendons, sinews, lyre strings and musical chords; all of which implied ‘the union of the cords and powers of the fathers, whence derived public powers’, quoted in Hersey, n 58 above, at 5. 61 On the importance of the aural metaphor in legal discourse, see Bernard J Hibbitts, ‘Making Sense of Metaphors: Visuality, Aurality and the Reconfiguration of American legal Discourse’ (1994) 16 Cardozo L Rev 229. 62 Marcus Andronicus refers to the Ovidian myth of Philomela, from which the story of Lavinia is derived: ‘Fair Philomela, why she but lost her tongue, / And in a tedious sampler sewed her mind’ (2.3.38–9). In Ovid’s story, the compassionate gods turned Philomela into a nightingale and her sister, Procne, into a swallow, Metamorphoses, Book 6, 423–672, although early Greek sources have Procne turned into a nightingale and her tongueless sister, Philomela, into a swallow.

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33–4), correctly observing that ‘tribunes with their tongues doom men to death’. (3.1.47) The absence of an impartial trial before an independent tribunal is a flagrant breach of one of the basic principles of natural justice, audi alteram partem (‘hear the other side’): the right to a fair hearing. In the 1590s, it was the blatant disregard for this right that so exercised Coke, in the cases concerning the deprivation of liberty by the Court of High Commission. It is over the issue of speaking and being heard, and the correlation of these natural human phenomena with justice, that Shakespeare comes closest to approving the oral tradition of common law, in preference to the civilian predilection for textual exposition of law. The former represents a jurisprudence that is spoken by its patriarchs, the judges, having heard the arguments placed before them by the disputants. It is a flexible system that allows the judges to exercise their legal imaginations in the interests of justice; delivering equitable judgments that demonstrate a palpable response to the human complexities of individual cases.63

THE DEPICTION OF TROYNOVANT The idea that constitutional theory could be represented through an order of visible signs was central to the development of a political aesthetic during the sixteenth century. John Guy notes that ‘The most spectacular assets of the monarchy were the person and image of the ruler’;64 but he also observes that the iconography of humanist and classical literature linked the Aristotelian notion of amici principis (‘friends’ or counsellors to the ruler) to the principle of limited monarchy in the best interests of the commonwealth.65 The ideology of the commonwealth is a theme that dominated the writing of humanist authors throughout the Tudor period, from Elyot’s The Book Named the Governor to Hooker’s Of the Laws of Ecclesiastical Polity. Thomas Smith had linked the notion of commonwealth with liberty, community and self-determination, defining it as ‘a society or common doing of a multitude of free men collected together and united by common accord and covenauntes among themselves’.66 The theme of the equitable commonwealth became dominant amongst Neoplatonic humanists partly because of the greater availability of the published works of ‘communitarian’ writers of the classical and medieval periods (notably Plato, Aristotle, Cicero, 63 On the poetic imagination of the ideal judge, see Martha Nussbaum, Poetic Justice: the Literary Imagination and Public Life (Boston, MA, Beacon Press, 1995) 80–2. 64 John Guy, ‘Tudor Monarchy and its Critiques’ in John Guy (ed), The Tudor Monarchy (London, Arnold, 1997) 78–104, at 78. 65 Ibid 81. 66 Sir Thomas Smith, De Republica Anglorum (Mary Dewar (ed), Cambridge, Cambridge University Press, 1982 (1583)) 57.

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St Augustine and St Thomas Aquinas), facilitated by the revolutionary improvements in printing technology.67 The creation by Henry VIII of a sovereign English jurisprudence provided the intellectual impetus for a generation of writers to imagine and describe the utopian state, and the relationship therein between ruler and citizen. Titus Andronicus was the first of Shakespeare’s Roman plays; throughout his writing career, he was to find the political structure and institutions of ancient Rome an illuminating metaphor for the human aspiration to create a utopian state from the ashes of an earlier civilisation. In The Roman History, Livy records the legendary foundation of Rome by Aeneas, after his escape from Troy. As Bate reminds us in his introduction to Titus Andronicus, British writers replicated this myth: accrediting the foundation of Britain to another Trojan fugitive, Brutus.68 Troia Nova, the new Troy, or Troynovant as it was known by Elizabethan writers, represented an aspiration for a nation that had been reborn in 1534 as a sovereign nation-state. As Edmund Spenser wrote in The Faerie Queene: ‘For noble Britons sprong from Troians bold, / And Troynovant was built of old Troyes ashes cold’.69 Elizabeth was depicted not only as Astraea, the goddess of justice, but also as the ‘beauteous Queene of second Troy’.70 The image of a utopian city-state, governed by a benevolent law-maker, found favour with Coke. As he sought to invest the common law with constitutional sovereignty, whose legitimacy was bound up with its antiquity, so the Trojan king, Brutus, became for Coke the prototypical author of the ancient constitution. In The Reports, Coke argues that ‘Brutus the first King of this land, as soon as he settled himself in his kingdom, for the safe and peaceable government of his people, wrote a book in the Greek tongue, calling it the Laws of the Britons, and he collected the same out of the laws of the Trojans’.71 After landing at Totnes, in Devon, Brutus had made his way east and founded a new city, Troynovant, on the banks of the Thames.72 For Fortescue, Coke and other jurists of the early modern period, Brutus was the father of the Britons, the archetype and icon of English nationhood. It was Brutus who, according to Fortescue, had founded the dominium politicum et regale: he was the original personification of constitutional rule. The influence of Brutus, Troy and Republican Rome over Coke’s perception of his role as a lawyer (and later as a judge) cannot be overstated. He repeatedly 67 On the socio-political effects of the innovative printing process, see Elizabeth L Eisenstein, The Printing Press as an Agent of Change (Cambridge, Cambridge University Press, 1979). 68 Titus Andronicus, n 1 above, Introduction, at 17. 69 Edmund Spenser, The Faerie Queene (London, Penguin, 1987) III. IX. 38. 70 In Heather James, Shakespeare’s Troy: Drama, Politics and the Translation of Empire (Cambridge, Cambridge University Press, 1997) 18. See also, David M Bergeron, Elizabethan Civic Pageantry, 1558–1642 (London, Edward Arnold, 1971) 58. 71 Coke, in Part 3 of The Reports, n 12 above, vol IV, Preface, viiia. 72 The tale of Brutus, his exile from Italy, his odyssey and his eventual arrival in England, was recorded by Geoffrey of Monmouth in 1136: Geoffrey of Monmouth, The History of the Kings of Britain (L Thorpe (trans), London, Penguin, 1966).

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invokes the ideal of the ‘Publique Weale’,73 or Res Publica, depicting it as the ultimate purpose of government, law and legislation. On his appointment to the judiciary in 1606, Coke described himself to the grand jury of the assizes in Norwich as an unwilling judge, comparing himself to an unnamed young Roman, who had accepted judicial office, only ‘to give encouragement unto other Romane citizens by their good credit in the government of Romes Publique Weale’, but whose reluctance stemmed from the necessity of presiding in judgment over ‘many friends, kinsfolkes, and allies’.74 As so often in his career, Coke provides the foundations for modern administrative law;75 here he invokes the rule against bias (nemo iudex in causa sua), stating that ‘amongst friends to iudge, is a thing nothing more dangerous’.76 This was of considerable relevance at the assizes in Norwich, as Coke’s family connections with the area would have involved him in legal disputes concerning those who were known to him.77 Again, he compares his position to that of the ‘young Romaine’ who was made a judge by the Senate: the reluctant judge was persuaded to accept the post, ‘in thy love to Rome’s Common-wealth’.78 Coke goes on to describe a peculiarly dramatic scene, in which the young Roman judge hosts a valedictory banquet, prior to his departure from his friends: ‘Thus must I depart from you, and yet continue amongst you, for by the love, power and authoritie of the Senate, I am appointed to be a iudge, and in the seat of justice, I must forget the remembrance of your former friendships … I must with equitie and uprightness, iustly administer iustice unto you all’.79 It has already been noted that Coke was no friend to the acting profession but, as the above extract amply demonstrates, he possessed an innate understanding of the potential for dramatic conflict between the public and private life of the judge. The scene which he describes finds many echoes in Shakespeare: a law-maker who has departed from his subjects but is simultaneously amongst them is redolent of the Duke in Measure for Measure; and the banquet, prior to the dispensation of justice, is suggestive of the ghoulish feast, staged by Titus Andronicus in Act 5 scene 3, in which the unjust rule of Saturninus is punished in spectacular fashion. Also, the decision by the young Roman to depart from his friends before returning to administer justice is remindful of Titus’s son, Lucius, who must leave Rome and forget the remembrance of his former friendships, before returning to restore harmony to a shattered populace: ‘To heal Rome’s harms and wipe away her woe’. (5.3.147)

73

Coke, Assizes Holden at Norwich, 1606, n 38 above, at 5, 6. Ibid 6. 75 On Coke and the evolution of judicial review, see Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford, Clarendon, 1999) 111–17. 76 Coke, Assizes Holden at Norwich, n 38 above, at 7. 77 Coke was born in 1552, in the village of Mileham, approximately 20 miles from Norwich. He was educated at Norwich Free School. 78 Coke, Assizes Holden at Norwich, n 38 above, at 6, 9. 79 Ibid 10. 74

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References to Troy abound in Titus Andronicus. Only a few lines into the play, Titus compares the loss of his sons in battle to that of King Priam of Troy (1.1.82–4). The mythical heroes and heroines of Homer, Ovid and Virgil (Aeneas, Astraea, Dido, Hecuba of Troy, Hector, Philomela) are all mentioned. Contemplating his unimaginable grief at the ravaged body of Lavinia, Titus refers to ‘bright-burning Troy’. (3.1.70) Names of characters are reminiscent of Trojan legend: in Virgil’s Aeneid, Lavinia was given in marriage to Aeneas; in Shakespeare’s play, Titus’s son, Lucius, has obvious associations with Lucius Junius Brutus, who expelled the Tarquins from Rome. Indeed, in the play, Lucius makes the explicit connection between himself and his illustrious counterpart. Before leaving Rome to raise an army of Goths, he makes the following promise to his father: ‘If Lucius live, he will requite your wrongs / And make proud Saturnine and his empress / Beg at the gates like Tarquin and his queen’. (3.1.297–9) Like the mythical founder of Britain, he is a fugitive from his city. Finally, towards the end of the play, Shakespeare subtly links Troy and Rome with Troynovant, or London, giving the following line not to a member of the imperial family, but to a citizen of the state, a Roman Lord: ‘Or who hath brought the fatal engine in / That gives our Troy, our Rome, the civil wound’. (5.3.86) The repeated use of ‘our’ is significant. To the audience at the Rose Theatre in 1594, as much as to Spenser in The Faerie Queene, ‘our Troy, our Rome’ was England. For Coke and many common lawyers, England’s ‘civil wound’ was the threat posed to ancient liberties by excessive use of the royal prerogative; liberties that were guaranteed (as Coke continually reminds his readers) in Magna Carta but which had existed since time immemorial. Unlike the Utopia of Sir Thomas More (literally translated as ‘No Place’) Troynovant was not a fictional realm. It was recognisably London: the heart of Tudor government. And what was ‘the fatal engine’, the Trojan horse, that caused the civil wound to which the Roman Lord refers in the play? It is reasonable to propose that, in a constitutional sense, ‘the fatal engine’ was the introduction of the regal Imperium into the English state. Far from enabling a new Troy to spring from the ashes of the old, it facilitated absolutist rule. By the last decade of the sixteenth century, the ancient liberties which formed the basis of the unwritten, ancient constitution were under threat from a rival jurisdiction; one that sought to supplant the sovereignty of common law and the equitable principles which underlined its practice. Although Troynovant was recognisably London, at a symbolic level it represented the longing for an imaginary realm, located in a fictional past: the unattained and unattainable state of ideal governance, to which all rational citizens aspired but which none would ever experience. Returning to Act 4 scene 3, moments before his arrows are shot into the heavens, Titus vows to his brother Marcus: Yet wrung with wrongs more than our backs can bear. And sith there’s no justice in earth nor hell,

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We will solicit heaven and move the gods To send down Justice for to wreak our wrongs. (4.3.49–52)

It would be more than 50 years after the first performance of Titus Andronicus before justice was finally sent down to ‘wreak’ the wrongs of the royal prerogative, and exact retribution in the form of the execution of a king and the abolition of the monarchy. Would a new Troy or, as Milton described it, ‘another Rome in the west’,80 arise from the ashes of the old regime? That remained to be seen.

80 John Milton, The Readie & Easie Way to Establish a Free Commonwealth (Thomason Tracts, 1659) E.1016 [11], 2.

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14 Titus Andronicus vs Le More Cruel and Les Portugais Infortunés Humiliation, Punishment and Violence in the Shakespearean and French Theatre of the Late Sixteenth and Early Seventeenth Centuries CHRISTIAN BIET

T HAS BEEN common knowledge for quite some time now, that the law is strongly evident in the plays of Shakespeare. Current research on theatre has also established that characters and actors, as well as playwrights themselves, play with law and reality in order to call them into question and destabilise them: literature and theatre use the inconsistencies, or discrepancies, of the law to engender a play on fiction, language and reality. In the specific case of Shakespeare, the author plays on the literality of language through moots or the complexity of specific legal cases not only for the pleasure of the audience, but also to increase the ambiguity of the dramatic discourse. When Aaron tells the title character of Titus Andronicus that the latter will get the heads of his sons back if he (Titus) cuts off his own hand, we hope that the sacrifice of the hand will enable him to save his sons. But we know Aaron from the beginning of the play, and we know that language is full of traps. That is why we feel horror, yet at the same time a perverse pleasure, when Titus obtains, in exchange for his own hand, the severed heads of his two sons. The audience witnesses not merely a bizarre bargain but also a play on the difference between the rhetorical and the literal, between a rhetorical figure (a synecdoche) and a literal statement. Titus understands Aaron’s use of the word ‘head’ as synecdoche (a part for the whole), ie to mean the entire living bodies of his children. However, Aaron, who knows that Titus is interpreting his discourse rhetorically instead of literally, remains on the literal level of discourse. For Aaron the word ‘head’ is not a figure, it is not a synecdoche, rather it signifies a head without any inference that there is a body attached to it. We, the audience, are horrified, yet we

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like puns and enjoy Aaron’s play on words, especially because we see a man, Titus, caught up in his own linguistic habits, speaking metaphorically and incapable of understanding a simple, literal discourse. Even at the cost of being guilty of a perverse pleasure, we enjoy playing with the text delivered by the characters, actors and playwright; we love to toy with the idea that a text can be performed in different ways; we enjoy considering the ways in which ambiguity can inform the narration and interpretation of a case and the ways in which rhetorical figures and words themselves can be deployed in a fictional, judicial and linguistic drama. ‘Let fools do good and fair men call for grace’, says Aaron (3.1.205).1 Let fools believe in rhetorical figures and let fair (?) men ignore the literality of language. That is the best way to punish them. Aaron doesn’t lie, rather he simply speaks literally, whereas Titus believes Aaron but takes the latter’s words as a rhetorical figure. From a single discourse Shakespeare creates two discourses, both of them true despite radical and terrible differences between them. With the same word, Shakespeare creates an opposition (of course, he plays on legal ambiguity to great effect in The Merchant of Venice too). To create opposition from uniform text is the way the law functions, and therein lies dramatists’ fascination with the interpretation of legal discourse. Titus, at this moment of the plot, is blind to the possibility that language can be literal: he gains that insight only through terrible humiliation and suffering. With that insight, he acquires the means to inflict terrible humiliation and suffering by way of revenge. Hence at the end of the play, Titus speaks to his enemies the same way Aaron did and Titus urges them to eat a meal he has cooked which (unknown to them) contains the flesh of Tamora’s two sons. ‘Although the cheer be poor, / ‘Twill fill your stomachs’ (5.3.28–9), he says. The cheer certainly is poor. Titus acts and plays literally, in the fashion of evil men (who are no fools), showing that with the insight of evil men, ‘fools do good and fair men call for grace’. We agree, then, that theatre can take the form of a legal moot performed on stage using literary and verisimilar fictions. In addition, we can now see that theatre is not only a moot about a case of law, but also a moot about discourse, language and the functionality of communication. Shakespeare’s plays, like European plays of this period in general, give the public the opportunity to experience an ambiguous pleasure (horror and the pleasure of horror) and the pleasure of reflecting on moral, political and judicial matters. With this observation in mind, we have to ask why these moots, these ways of playing on the law and specific legal cases, discourse, language and communication, are so prominent in Shakespearean drama. Is it in order to destroy the law and language by moots and fictions? Or to give the audience some means of reflecting upon its own existence in the theatre and in the world outside the walls of the theatre?

1 Textural references are to William Shakespeare, The Lamentable Tragedy of Titus Andronicus in J Bate and E Rasmussen (eds), William Shakespeare: Complete Works (Basingstoke, Macmillan, 2007).

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In this chapter, I will discuss two examples of this ‘Shakespearean’ way to play with the public; a phenomenon which also occurs in French drama, including tragedies, of the very same period. I will do so to show that French authors, albeit probably without any detailed knowledge of Elizabethan plays, are at least aware of them and engage in the same dramatic practice as their English counterparts, since they live in the same European sphere and know that retaliation and revenge are essential elements in the composition of tragedies. In order to show this, I will examine two French plays which employ the central dramatic device of the English and French drama of the period, the device which indeed provides the main dynamic for the tragedies of the time: the process of domination, humiliation and revenge. The first example, La Tragédie Française d’un More Cruel, comes more or less from the same tradition as Titus Andronicus while the second, La Tragédie des Portugais Infortunés, is seemingly further removed from the Elizabethan drama. Both plays, however, provide ways of understanding literature’s and theatre’s capacity to think about the legal and political issues that the law leaves unsolved. Of course, dramatic literature does not operate to resolve these issues, but rather to propose ideas that reality and law could have enacted, had the past been different, or ideas that reality and law might enact in the future, after the play has been seen or read. A continual cycle of humiliation and vengeance—the humiliation of one party and the revenge they take for being humiliated, leading to the humiliation of the other party and their vengeance upon the first party: this is the typical plot of dramas and tragedies in England and France during the end of the sixteenth and the beginning of the seventeenth centuries. This dramatic or ‘dramaturgical’ cycle is a sort of aesthetic law. It is also a juridical and traditional and perhaps even anthropological law. Yet as everyone knows and has experienced, this ancient custom of domination, humiliation and vengeance leads to an unending series of upheavals, crimes, bloodshed and mass murders. For the theatre, the first question is how to represent humiliation, which is at once a type of punishment, judicial retribution and justice. How does one also represent the fact that the first instance of humiliation and revenge leads to a dangerous, never-ending cycle? The second question, then, is how one leaves the cycle of domination and retaliation. It is these questions that tragedy tries to answer through fiction at the end of the sixteenth and the beginning of the seventeenth centuries. What are the principal dynamics of the human and social process of humiliation and revenge? How does tragedy perform this process? An illegitimate humiliation prompts the victim to legitimate vengeance which is generally more violent or cruel than the first act. The original aggressor is turned victim by his victim’s revenge and, being more grossly humiliated than the original victim, becomes more of a victim than the original victim was and thereby derives legitimacy to exact revenge himself. So the vicious cycle never ends. This ‘Talion Law’ is represented in tragedies through the lens of a moral and legal debate. In

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reading Titus Andronicus, we see how humiliation is enacted not only through crime, violence and rape but also through words and discourse. (Modern readers know that literality can be a weapon.)2 When looking at Titus Andronicus, at the courtroom scene in The Merchant of Venice or at the anonymous French work More Cruel (c 1613), we can observe that the authors represent and discuss, using plot events and the text, a legal and theatrical process which leads to disorder and doubt. Sometimes, however, in order to break the cycle of domination, tragedy tries to find a way to escape the terrible and cruel reality of the Talion Law and propose an alternate vision. To avoid the heavy hand of the ancient, ever-present Talion Law, theatre invents or proposes, through fiction, a possible, fragile path which is at once political, moral and philosophical. In order to get a better sense of this, I shall consider finally Nicolas-Chrétien des Croix’s Les Portugais Infortunés (1608).3

LA TRAGÉDIE FRANÇAISE D’UN MORE CRUEL (CIRCA 1613) In one of his novelle (‘short stories’),4 the Italian author Bandello presents his readers with a legal case. The case in question is that of a black slave who enacts a cruel vengeance on his master, who—in perfect conformity with his rights—had severely beaten him. The ‘Moor’ in Bandello’s novelle has committed an offence and the master has to punish him: from the point of view of Bandello and the Italian people of his time, the beating is normal and just retribution. Popular belief at the time holds black people to be full of passion and fury and liable to overestimate their station in life. Yet, the black slave is bent on getting revenge, despite the illegality of such a course. Bandello presents the following dialectic: Major: A slave is not a person and thereby does not enjoy the rights of a person. Thus the master can beat his slave without any consideration of the normal law concerning actual subjects. Minor: Yet the story tells us that a slave can feel like a person even if he is not one and even if such a thing is prohibited by law. Since the black slave considers 2 Shakespeare, who lived during a time in which the literal reading of the Bible by Protestants challenged the Catholic tradition of allegorical, hermeneutic reading, also knew. The idea of showing a Moor playing on literality (like a Protestant) to the disadvantage of a Roman noble who is in charge of interpreting the discourse (like a Catholic) is telling in this context, but that is another subject. 3 Both this play and Le More Cruel can be found in Christian Biet (ed), Théâtre de la cruauté et récits sanglants en France (fin XVIe-début du XVIIe siècle) (Paris, Bouquins, Laffont, 2006). 4 Translated to the French by Belleforest at the end of the sixteenth century and from French to English by Geoffrey Fenton in 1597: Sir Geoffrey Fenton, Certaine Tragicall Discourses written oute of Frenche and Latin etc (London, Thomas Marshe, 1579). This translation of selected tales from Belleforest’s version of Bandello may be found in a quarto edition at the British Library.

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himself a person and considers his beating a humiliation, he avenges himself, even if he does not have the legal right to do so. Conclusion: If a black slave acts in an unfounded manner as a subject and misguidedly conceives himself in legal terms, ie as a person, he can be dangerous, especially because black people are by essence passionate and cruel. In the short story, the slave rapes the master’s wife and kills his children before committing suicide himself. Bandello chooses this example to prove that it is urgent to end black slavery in Italy (as opposed to distant areas such as Latin America or the West Indies). Letting black slaves into Western cities is undesirable, not on humanitarian grounds, but because black people (‘Moors’) do not recognise the laws and customs of white Western society, much less when they have been beaten and are furious as a result, regardless of the fact that there was a clear reason for the beating. His reasoning proceeds to argue that such slaves, swept away by their passions, having an unlawful conception of themselves as persons, react as though they were humans, enacting an illegitimate and scandalous vengeance. When the humiliated individual acts like a person, he constitutes a subject and can thus avail himself of the custom of retaliation that subjects generally follow; black people, however, are not considered persons and thus have no basis for feeling humiliated or avenging themselves. As I stated earlier, Bandello was widely read in Europe. So it is no surprise that an anonymous author from Normandy would adapt this story for the stage in roughly 1610. This author did not read the original text by Bandello, but rather Belleforest’s version. We can also suppose that the author had read Elizabethan tragedy, or at the very least probably had heard of the plots of such plays, including that of Titus Andronicus, where Aaron, a black freed slave, enacts a cruel vengeance on Titus. In Bandello’s short story, as we have seen, the black slave is considered wrong to have acted as a person (since he was not one), wrong to have sought vengeance (since he had committed a fault himself and had only been beaten once as punishment) and wrong to have retaliated against his master. That said, whereas a prose narrative can be written so as to present only one side of an issue, a dramatic plot needs to mobilise contradictions in order to interest the audience. The anonymous French playwright knows that this demand forbids him from constructing a linear plot which simply condemns the slave without any ambiguity, so he adds to the plot of the short story a dramatic conflict between the former slave and the master. Specifically, the author makes the following two significant plot modifications: 1. Before the beginning of the play, the slave has been beaten several times by his master, without any good reason. 2. The master, who feels wrong to have beaten his slave so often, emancipates the latter at the very beginning of the play and thus lets him attain legal personality.

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This double dramaturgical move casts doubt upon the legitimacy of the master and makes any possible retaliation on the part of the slave (or former slave) legitimate. It also makes possible a tragic balance between the two characters: since the Moor is no longer a slave (he was emancipated by his master), he can act as a free legal subject. The question that comes to mind in this context is whether the Talion Law is a tradition or a fundamental law of justice, and if anybody has the right to avenge himself. In La Tragédie Française du More Cruel, then, the Moor has his reasons for seeking revenge, even if the disproportionate extent of his revenge goes far beyond the eye-for-an-eye logic of the ancient Talion Law, the lex talionis. We can see that the vengeance enacted on stage is out of proportion. In the first act, the Moor tells the audience that he has to be avenged for the wounds inflicted to his body and soul. The Moor has been humiliated and can now, according to the retaliatory logic of the Talion Law, humiliate his tormentor, his master Riviery. The slave’s master is a Majorcan nobleman proud of his castle, his wife, his children and his new-found wealth (wealth obtained through Spanish violence to the Amerindian people and theft of their gold; witness the contemporary account of Bartolomé de las Casas). From the point of view of a French author from Normandy, Riviery is emblematic of the Spanish arch-enemy: he is arrogant, deluded enough to think Providence can save anyone, and guilty on numerous counts of slave holding in the metropolitan territory of Spain (slave holding was at that time forbidden in metropolitan France). Even if the master, believing himself to be acting in goodwill and favoured by Providence, thinks he atones for his faults by emancipating his slave, the audience, hearing the Moor’s point of view, hesitates between two legitimate positions and understands the slave’s desire for revenge. The playwright, in order to sharpen the contradictions, shows that the master, proud of having freed his slave, now wishes to reap the benefits of the good deed by asking his former slave (now a servant) to watch over his family while he leaves the castle to go hunting. But the Moor doesn’t want to be a kind of Uncle Tom and doesn’t give up the possibility of revenge. Of course, the audience knows this and is apprehensive about what will follow in the tragedy. Like the audience, Riviery’s wife, the damoiselle, is concerned about the Moor and tries to convince her husband not to leave. But since the newly wealthy Spanish nobleman is excessively proud and completely set in his ways, he still goes hunting; putting the lives of his wife and children in the Moor’s hands. The stage has been set, then, for the ultimate vengeance. First act of vengeance, a double vengeance: the Moor takes possession of the castle, rapes the wife and kills the first-born son. Specifically, the Moor raises the drawbridge and rapes the damoiselle on stage, before the eyes of the audience. He then throws Riviery’s son to his death from the castle wall. The two remaining children cry for help from the castle wall and are heard by two men who summon Riviery to the scene of the crime. The theatrical situation is terrifying: the Moor is at the top of the wall while the master is down below, between the crime scene

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and the audience. Riviery is helpless, impotent. After a moment of rage, the master realises he has no alternative but to attempt to negotiate with the Moor. Second act of vengeance, a double vengeance: the humiliation of the master and the death of the two remaining sons. At this specific moment, the French author uses a plot device from Titus Andronicus. To enact his vengeance, the Moor offers to spare Riviery’s wife and remaining two sons if the master cuts off his own nose (a punishment for slaves who attempt to escape). The Moor swears on Riviery’s Christian God that he will release the family if the latter cuts off his nose, which Riviery does, in front of him and the audience. Then, the Moor proceeds to throw the children off the wall, stating that he is not disloyal or treacherous, since he swore on Riviery’s God and not on his own, Mohammed. Third act of vengeance, a triple vengeance: the murder of Riviery’s wife, the Moor’s suicide, and his triumphal escape from the retaliation of the master. The tragedy ends when the Moor kills the damoiselle, throws her off the wall and then jumps into the sea, saying ‘Farewell to all’. The cycle of revenge has ended and the Moor has escaped punishment by the master and by the law. The former slave has exacted revenge but it is henceforth impossible for the master to retaliate in turn and maintain the cycle of humiliation. In dying, the Moor triumphs. In contrast, the master has lost his pride, his honour (his wife has been raped), his progeny (his sons have been killed), his property (his castle has been taken over by his former slave), his right to gain revenge (the Moor has killed himself) and has little left to do but bury his wife. Case closed. The tragedy and cycle of revenge have both reached their end, but not the audience’s reflections; having been enthralled by the striking effects, the spectators now have to think about the case, debate the moot and make a judgment together. The play provides plentiful reason for exercising one’s judgement, for it transforms a slave into a person, a subject; and it questions whether a person has a legitimate, traditional right to obtain vengeance. The Moor’s revenge is excessive, of course, but that is the nature of vengeance. The slave has his reasons, the master his faults. The earlier humiliation of the slave is balanced by the humiliation of the master. This terrible, contradictory situation ends the tragedy and obliges the audience, which has witnessed the crimes without acting, to think about the judicial process. Having been shaken by the violence of the play, the audience can reflect upon the consequences of vengeance and upon whether retribution is legitimate or illegitimate and unlawful. But there is nothing to replace vengeance, there is no law that can lead to peace. Passion, humiliation and vengeance create a cycle that only crime, violence and death can end. The tragedy informs us that even if Christians believe themselves redeemed by actions they have taken, such as adopting peace as an ideal, or forsaking the use of force (after they have employed those very means), they still have to atone for their faults; and those who suffered at their hands may act legitimately, or overreact. While the conversion to a more peaceful engagement with the world interests the audience, so does the tension between opposing legitimacies and the bloody, theatrical spectacle of the overreaction. Humiliation, reaction, vengeance,

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cycles, theatrical effects, reflections of the proportionality of the riposte to the first aggressive action, the magnification of actions and reactions, and, within this dynamic, the revelation through fictional and theatrical means of a process of contradictions leading to a difficult judgement by the audience—those, in sum, are the dramaturgical ingredients of this theatre. Also, it is by these elements that theatre responds to and irritates the contemporary reality in which it is performed. The play seemingly asks the following questions of the audience: you have seen the facts, the violence and the end of the process, but what did you do in response? What did you do to fight this process of domination, humiliation, violence and retribution that you observed without so much as lifting a finger? And, in the future, when this same cycle is taking place again and affecting you, your neighbours and your city, what will you do? Perhaps nothing, since you are intending to remain bystanders? In this anthropological struggle to determine who will dominate and who will be dominated, humiliation plays a central role. The centrality of humiliation is explained by the fact that domination is more than just pure violence, theft or other crimes. Humiliation does not involve stealing or otherwise taking possession of others’ property in a general sense; rather it entails depriving them of the object, symbol or identity that they consider essential to them. Domination may or may not be a concrete action, yet it is always a symbolic action. In the example of the More Cruel, the Moor is not a thief or other minor criminal. The Moor had been beaten by a master who didn’t know, or didn’t want to know, that his slave considered himself a person instead of a slave. In return, the freed slave who knows how his master thinks, deprives the latter of the possessions that define him: his castle, wife, progeny, future and even his face. The Moor knew what signs he had to destroy in order to succeed, because he knew what Riviery’s identity was. It follows that Riviery, at the end of the tragedy, loses not only his property but his identity as well. In order to humiliate one’s adversary one must know him. One has to know to what he is most attached, and then deprive him of it for the sake of depriving him. Also, humiliation has to take place in public, in front of an audience of witnesses. This combat (which is more than a simple struggle) generally doesn’t have an end; the victim of the first humiliation does not attempt, in avenging himself, to regain the object, symbol or identity that he has lost, but rather to humiliate in turn the person who humiliated him, to spoil that person’s triumph and deprive him of his symbolic identity. If the elimination of one of the two opponents in specific instances sometimes puts an end to the cycle (in the case of Le More Cruel, the triumphal death of the Moor), the process generally continues. If the opponents themselves are dead, then their family or their community inherit the dynamic and carry it on. The process of humiliation, which springs from the dominator/dominated dynamic, leads to a phenomenon which has played a major role in human history. The dynamic expands and performs excess,

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as the opposing sides are obliged to find increasingly disproportionate actions of revenge and deprivation to continue the cycle and destroy the identity of the other.

LA TRAGÉDIE DES PORTUGAIS INFORTUNÉS (1608) Incredibly violent, concrete and symbolic actions can be invented, then, in order to destroy the identity, progeny or community of the other. The humiliation in question takes many forms: rape (one of the ultimate signs of domination, the subjugation of the body of the woman, who ensures the reproduction of the community); amputation (of the hands, nose, ears or male genitals); marks inscribed on bodies or souls; destruction of geographical territory; elimination of progeny; mass murder and genocide. These are the manifestations of this combat which, as I said above, is unending. Theatre deploys its own special fictions to represent the fundamental dynamics of this process to its collective audience. In addition, theatre attempts to understand and present the facts through cases that are able to be judged. In fact, the representation of humiliation is a perfect dramaturgical tool for the theatre, an ideal way of affecting the audience and letting it think about a phenomenon which is at once anthropological, historical and contemporary. In sum, then, the dramaturgical pairing of humiliation and vengeance is an important plot component in the European tragedy of the end of the sixteenth and the beginning of the seventeenth centuries; the tragedy frequently deploys this pair on its public and theatrical stage. The audience, meanwhile, is consigned to being a mute, powerless witness to the dynamic unfolding before it and, with the exception of making disruptive comments, cannot disturb the fictional performance and has to passively accept the performance of the crime. The spectators are eminently aware of their position: they realise that they don’t intervene when the crime occurs on stage and can easily compare the position they take during the performance to the social and political position they have adopted vis-à-vis historical, real crimes. ‘What did you do when you witnessed these crimes in the past? What did your parents do? And what will you do in the future to prevent new humiliations and crimes or to avoid committing them yourself? Will you choose passivity or action?’ These are the questions the tragedy asks of its audience. The position of the spectators described here raises the following literary and historical question: is it possible to break out of the ancient cycle of humiliation, or is it man’s destiny to remain in an unending struggle where revenge never leads to peace but only to continued acts of revenge or death? In other words,

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how can a character or author change this traditional Talion Law, so characteristic of the historical period? By establishing another law to create peace? By finding religious arguments for breaking the cycle? In sum, can another law replace the custom of vengeance? We will attempt to answer these questions by looking at another tragedy, Nicolas Chrétien des Croix’s La Tragédie des Portugais Infortunés. In this play, a way out of the cycle of vengeance presents itself in the aftermath of a struggle between blacks and whites. Inspired by Montaigne’s Essais, this vision of an escape from the dynamic of vengeance can perhaps lead to a relative peace. The tragedy does not herald a new world order, but rather makes a tentative attempt to reduce violent conflict by representing mankind in its verses. In Les Portugais Infortunés (1608), Nicolas Chrétien des Croix takes up the issues of domination and humiliation and looks at them within the context of the clash of civilisations so familiar to the sixteenth century. This tragedy was written in Normandy and is based on an event which took place in 1553 and which the Italian Jesuit, Father Maffei, had written about in 1588 (Historiarum Indicarum, Book XVI). Des Croix, however, transforms the Portuguese prose narrative into a French drama. The narrative tells the story of a group of Portuguese, shipwrecked on the coast of East Africa, who are refused hospitality and food by the black Manican people and then beaten, robbed and driven to utter humiliation and death. The story ends with an image of the Portuguese men, women and children, naked (the Manicans had taken their clothes) and dying. A few survivors eventually wander through the desert, reach Cefala (today’s Maputo) and recount their horrible tale. This type of prose travel narrative is common during the period and describes in a complex manner the rise of European domination of the world and the barriers that non-European peoples set up to resist this subjugation. At the same time, literature is pondering the question of natural rights, reading Las Casas or Montaigne and comparing the behaviour, appearance, mode of living and social and legal systems of non-Europeans with those of Europeans. Discovering the non-European other is not a simple matter and while the experience may be frightening or violent, it can sometimes also be a philosophical revelation and lead to new ways of approaching questions of truth, identity, legitimacy and justice. Having looked at the travel narrative, we can now compare it to des Croix’s tragedy. The subject of the drama is as follows: a group of Portuguese are sailing around the southern point of Africa on their journey home from India. The chief of the expedition, Sose Sepulveda, is accompanied by his wife Leanor, his children and the crew of the ship, which is loaded with goods to be sold in Portugal. But the Spirit of the Cape of Good Hope—the ‘Adamastor’ of Camoëns’ Lusidadas— sends a tempest as punishment for the poor treatment of his people at the hands of Portugal. This concludes the Prologue. After the storm, the Portuguese find themselves shipwrecked, lost and without food on the east coast of Southern Africa. They are forced to wander through desert lands looking for food and help.

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A Manican ‘pontife’ or priest happens upon them: here, then, a black man’s first encounter with white Europeans is staged. Both sides are surprised, the Manican even more so than the Portuguese, but after both sides collect themselves they launch into a discussion on whether the human race was black or white at its origin. Of course, what we are dealing with here is not reality, but rather theatre, and more precisely, a philosophical theatre created to discuss the nature and identity of mankind. We can observe that the play stages both a first encounter between races (especially surprising for the Africans thitherto ignorant of the existence of Europeans), and the first experience of humiliation by one of these races. When the Manican Priest meets the whites, he gazes at them, dips his fingers in water and touches one of the Portuguese men’s cheeks to see if he is wearing make-up on his face. The black Priest cannot anticipate that some men are white by nature. For the audience of the time, this gesture is ironic and theatrical; black characters are usually played on stage by white actors wearing black make-up. Thus, in a gesture at once theatrical and philosophical, the play inquires into the identity of the human species; and, not without significance, it is the black character who initiates the inquiry. Of course, the Portuguese answer is that they are not wearing make-up. A debate then ensues about whether the first humans were black or white and about which race first settled the Earth after its divine creation. A character representing what we might call the religious Portuguese faction argues for the idea that black people derive from Ham’s race and are more or less a secondary (and punished) race. A second character, belonging to what could be termed the reasonable faction, posits a different idea, arguing that blacks were originally white but that through living in Africa their skin was ‘roasted’ by the sun and turned black. Despite these differences, the white Europeans present a unified front in telling the African Priest that his race came after the white one and therefore enjoys inferior rights on the Earth. The Priest, who was hoping for a mutually beneficial interaction, is instead humiliated in his very first contact with the Europeans. He finds that they are arrogant and that the bargain they propose amounts to little more than extortion: their gifts in return for his food and help. Therein lies the primary project of the tragedy: to show how whites misunderstand blacks and try to dominate the latter through their discourse, myths and scientific knowledge. White people are portrayed as using these means to persuade blacks to find food for them. The whites assume that the blacks should procure food for them not only because it is customary to help people lost in the desert but also because blacks are essentially inferior beings. The black Priest understands that a process of domination is under way, even though he benefits from the exchange by receiving gifts from the Portuguese. From this very first scene, the tragedy shows a path that the white people could have taken yet chose not to take: the path of equity, the refusal to dominate and humiliate the non-European other. That, in sum, is the first philosophical and dramatic move made by Nicolas Chrétien des Croix.

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Despite the tragedy of the scene we have just discussed, the Priest goes back to his King in order to fulfil his pledge to help the Portuguese. The King, however, is not disposed to help the Portuguese, as he is aware of their reputation as conquerors and fears them. He also fears that the foreigners will enslave his people as they had other black cities in Africa. To avoid this scenario, the King sends a peace-making expedition, with music and dancing, to meet the Europeans in order to ascertain who they really are. However, when the Africans approach the Portuguese camp, a new misunderstanding is born and fear sets in on both sides yet again: the Portuguese, afraid of the music and dancing of the African group (they interpret the peaceful sounds and the gestures of peace as threats of violence) fire on them. The relations between the two groups deteriorate radically; although no one is wounded, the Manicans retreat in terror. At this point, the spectator is sure that the two sides are on the verge of armed conflict. But it is at this moment that Nicolas Chrétien des Croix chooses to momentarily suspend the action and present a possible solution, an alternative which ultimately fails but which could have been a means to escape the cycle of domination, vengeance, war, crime and punishment. The alternative in question is a conciliatory scene between two women, an episode that is funny and lively yet should also be taken seriously, since it takes up the issue of the equality of humans and the relativity of culture and beliefs and thereby opens up a possible new world based on Montaigne’s philosophy and humanism. The episode commences when the Queen of the Manicans asks her husband’s permission to meet Eleanor, the wife of the Portuguese leader, Sose Sepulveda. The Manican Queen is curious and eager to see a white woman for the first time in her life. Even though her husband considers the Portuguese dangerous and plans to defeat them by hook or by crook, he grants her request. The meeting between the Manican Queen and Eleanor takes place before the eyes of the Manican court. Immediately, the Queen makes an unusual request, which is an allusion to a passage from Montaigne’s Essais.5 She asks Eleanor to expose her breasts so that she, the Queen, can compare them with her own. African women, the Queen says, have long breasts, while white women are supposed to have round ones, something she wants to verify. She is familiar enough with the long breasts appreciated by African men, but she is curious to see the round ‘tits’ (‘mamelles’) that European men find so beautiful. Although the prudish Eleanor refuses to show her breasts in front of the court, she lets the Queen feel them and the two women then discuss the relativity of taste among the different nations of the world. At that point, the European noblewoman gives the Queen a watch and explains how to use it; the Queen doesn’t treat this device as a useful measuring instrument but as a jewel: saying, in effect, ‘who cares about the European notion of time in African countries?’ At any rate, the two women converse and enjoy 5 See Montaigne, Les Essais, III, VI ‘Des Coches’; Les Essais, I, XXX, ‘Des Cannibales’, édition étable par Jean Balsamo, Michel Magnien, Catherine Magnien-Simonin (Paris, Gallimard, Pléiade, 2007).

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friendly relations with each other, thereby finding a hypothetical way to abandon the human history of violence. As stated above, however, this effort comes too late for this tragedy: at this point, the Manicans are poised to punish the Portuguese. While colonial history tells us that it was usually white people who enslaved blacks, in this tragedy it is the Manicans who triumph in the great game of domination and humiliation, albeit only in this particular situation. The Manicans understand Machiavellian theory and put it into practice better than the Europeans, and reveal themselves to be skilled at negotiation and extortion. As the Manicans are in a position of superior strength, they can tell the Portuguese that they will only receive food if they give up all their weapons; the Portuguese have no choice but to accept. Act 4 of the play closes with a final confrontation in which the Manicans triumph over the unarmed Portuguese and strip them of all their possessions, even their clothes. Then the Manicans leave the stage, abandoning the naked and plaintive Portuguese men, women and children. Deprived of all means of survival, most of the Europeans will die in humiliation during a long fifth Act. Just a handful of them will leave the stage at the end of the tragedy and even fewer will reach the city of Cefala. The curtain falls. Although much research has been done on the subject, it is still unknown if this tragedy was ever staged at the beginning of the seventeenth century. It is clear, however, that the play was published to be performed and that actors of the period could wear flesh-coloured body suits (costumes de chair) when playing naked characters. However, even if the drama was never performed, its strength lies in the image, so vivid for the reader, of disarmed, naked, humiliated people, deprived of virtually all their humanity: an image of disaster. But what, then, is the process of humiliation in this tragedy? And how does Nicolas Chrétien des Croix attempt to break it? We can easily see that des Croix uses the process of humiliation to show that the Portuguese, who have humiliated blacks elsewhere in Africa, are now humiliated and punished themselves by their victims. A question that naturally arises here is the relevance of this situation to France, which, like Portugal, harboured colonial ambitions. From the perspective of a French author like des Croix, Portuguese and French modes of colonisation differ. First of all, the two countries were rivals for the possession of Canada and, secondly, Henri IV’s colonisation of Canada was intended to proceed smoothly, without recourse to violence or slavery. Thus, the playwright imagines that the violent process of humiliation and domination demonstrated in his theatrical representation of Africa could have been avoided if the Portuguese had seen the blacks from a different, French, perspective.6

6 See the section ‘Chacun est en pareil de grandeur différente: Les Portugais et les Africains saisis par le spectacle des corps’ in C Biet and S Requemora, ‘L’Afrique à l’envers ou l’endroit des cafres, tragédie et récit de voyage au XVIIe siècle’ in Alia Baccar Bournaz (ed), L’Afrique au XVIIe siècle,

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In summary, then, this tragedy draws, with all the methods and power of the theatre of its time, two main conclusions from the action shown on the dramatic stage. The first is that the domination game has been a powerful force throughout history, that any side can triumph in this game and that such victory is always temporary. The main thing that humans have in common is their savageness and inhumanity. Nicolas Chrétien des Croix shows the process of humiliation for what it is: a tragic and violent means through which humans enact their inhumanity. In addition, he tells the audience that retaliation can continue endlessly if no one stops it. The fate of mankind, consequently, is that it will remain by nature savage and inhuman so long as it takes as its only social rule the natural law of retaliation, the Talion Law. Yet at the same time, human nature can also be positive, since it is also characterised by diversity and curiosity. The second conclusion, then, is that the diversity of human nature and the relativity of human behaviour and beliefs allow us to envision ways of breaking the cycle of natural, savage humiliation and revenge. This tragedy has shown us several suggestions for freeing man from the Talion Law. At different moments of the play, hypothetical or potential means of escaping the inhumanity of man are presented: one moment is when the two women engage in an exchange of ideas, another, at the conclusion, arises out of the very desolation of the white people in the form of hope that some of them will be saved. When Sepulveda’s wife, naked and utterly humiliated, cries over the body of her son and laments the fate of her people and herself, something in this tragedy says that there is a way for different humans and races to be, act and behave; one that is far removed from this terrible story. Perhaps the clearest message is that humiliation, like the process of domination, doesn’t solve anything and has to be abandoned. The main idea, then, could be a renunciation, after the story and the play, of domination and humiliation and an acceptance of man’s differences in the aftermath of the chaos caused by domination. Ultimately, Les Portugais Infortunés suggest a path towards a non-dominant, constructive appropriation of one culture by another7 and intimates that there is hope after the domination process has ended. In sum, Nicolas Chrétien des Croix’s tragedy envisions a different world inspired by Montaigne’s philosophy and thought, and it invites the audience and readers to construct that world. It shows that they must write a new law and perform it in the city, outside of the theatre.

mythes et réalités: actes du VIIe colloque du Centre International de Rencontres sur le XVIIe siècle, Tunis, 14–16 mars 2002, PFSCL, Biblio 17 (Tübingen, Gunther Narr, 2003) 371–402. 7 See Stephen Greenblatt, Marvelous Possessions: The Wonder of the New World (Chicago, University of Chicago Press, 1991); Tvetan Todorov, La Conquête de l’Amérique. La question de l’autre (Paris, Seuil, 1982).

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VI

The Merchant of Venice and the Infinite Meanings of ‘Law’

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15 The Law of Dramatic Properties in The Merchant of Venice GARY WATT

HE MERCHANT OF VENICE is a fairy tale. There is no more reality in Shylock’s bond and the Lord of Belmont’s will than in Jack and the Beanstalk’.1 The opening words of GranvilleBarker’s commentary on The Merchant of Venice serve as a warning to lawyers who might be tempted to mine the play for technical references to law. Yet the play is not mere fairy-tale. There is a tangible reality to the dramatic properties or ‘props’ which appear in the play—including rings, bonds, seals and scales— and these same props were significant in the law of Shakespeare’s England. There may be no more reality in the world of law than in the world of the play, but there is at least a real connection between those worlds. Props make the bridge. This chapter will examine props which have one foot on the shore of the play and one foot on the shore of law. It will be shown that despite the different ways in which they perform, the props are constant to one thing on both shores. This constant, which we might call a law of dramatic properties, is the use of a part to signify the whole: partem pro toto. This ‘law’ of props is, of course, a subset of the rhetorical trope synecdoche, just as synecdoche is a subset of metonymy, and as such it must be significant that synecdoche occupies the very heart, or more properly the very head, of English law. In the law of England there is nothing higher than ‘the Crown’. The Crown is synecdoche for the monarch in Parliament, and the monarch in Parliament is representative of the people. It is hardly surprising, then, that the crown as prop forms a well-trodden bridge between the worlds of stage and law in Shakespeare’s plays.2 In The Merchant of Venice we will discover bridges less travelled. 1

H Granville-Barker, Prefaces to Shakespeare (London, BT Batsford Ltd, 1958) vol I, 335. When the ‘crown’ prop takes centre stage in Shakespeare’s plays and is expressly referred to as being part of the present scene, it is surprising how rarely it symbolises the attainment or 2

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A PLAY FRAMED BY PROPS At the start of Shakespeare’s The Life of King Henry V, the chorus invites the audience to imagine that the small stage and the small band of actors and the small span of the play can convey the full time and space and properties of France: Into a thousand parts divide one man / … Turning th’ accomplishment of many years / into an hourglass. (Prologue 24–31)

Parallel language (right down to the duplication of ‘hourglass’) is employed with parallel purpose at the very beginning of The Merchant of Venice. Salerio, imagining himself in Antonio’s place, muses: I should not see the sandy hour-glass run, / But I should think of shallows and of flats, / And see my wealthy Andrew, docked in sand, / Vailing her high-top lower than her ribs / To kiss her burial; (1.1.26–30)3

Salerio’s musings imply an invitation to the audience to join him in imagining that a great matter, a shipwreck, may be figured in a small thing, here the sand in an hourglass. They also introduce the significant metaphoric and allegorical use of the wrecked ship to indicate Antonio’s wrecked body (the wooden ‘ribs’ of the ship’s hull presage the ribs from which Shylock threatens to take the pound of flesh). As The Merchant of Venice begins with the warning that a small thing can portend the ruin of a man, so the play ends with the same warning. The final lines are Gratiano’s: ‘while I live I’ll fear no other thing / So sore as keeping safe Nerissa’s ring’. (5.1.324) The final word is a prop, and its physicality serves to bring the play full circle. It may be that Gratiano and Bassanio have learned their lesson (we doubt that they have), but clearly Antonio, who claims in the opening lines of the play that he ‘will learn’, has learned nothing. Having put his flesh to hazard at the outset, at the end he hazards his soul: ‘I dare be bound again, / My soul upon the forfeit’. (5.1.265–6) Ring-like, the Belmont circle of friends are bound within the confines of their closed world (from which, crucially, Shylock is

maintenance of royal authority. It does occasionally, of course (Henry VI Part 1, 4.1.1–2; Henry VIII, 4.1.42; Titus Andronicus, 1.1.18), but sometimes with unease (King John, 5.1.3; Richard II, 4.1.176–98), and once jovially (Pericles, 2.3.12: the dominant view is that George Wilkins wrote most of the first two Acts of this play; see FD Hoeniger (ed), The Arden Pericles (London, Methuen, 1963) ln–lvi). When the crown prop is at its most central to the stage action it is usually employed to represent the loss of royal authority (eg Richard III, 5.3.365–6; Henry IV Part 2, 4.2.195–280; Henry VI Part 3, 4.3.50; Hamlet, 3.2.112–11; Antony and Cleopatra, 5.2.316, 358–9) or to mock pretension to royal power (Henry VI Part 3, 1.4.95–6). References throughout this chapter are to J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007), unless otherwise stated. 3 The wealthy Andrew mentioned here is reputed to refer to the Spanish ship the San Andrés, captured during the English expedition to Cadiz in 1596.

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shut out). There are other significant rings in the play, including the ring that Shylock received from his wife Leah which Jessica is alleged to have taken and sold (the text says that Shylock received it when he was ‘a bachelor’ (3.2.80), inviting comparison with the ring that Portia gives to Bassanio). There is also the signet ring which we can assume that Antonio pressed into the blood-red wax of the bond. In such auspicious company, Nerissa’s ring might seem a surprising choice on which to end, but the musings of the common man Gratiano upon the ring of his commonplace wife bring home the message to the common man in the audience, that he should take care of what he values in life and not risk losing it. Read in this way, the final line sounds more like the moral at the end of a fairy-tale than the ‘obscene pun’4 that can be read into it. Yet it is Portia’s ring, the one she gave to Bassanio, that signifies most.

PORTIA’S RING Portia’s ring exemplifies the principle partem pro toto. Bassanio says of the ring, ‘[t]here’s more depends on this than on the value’ (4.1.443),5 and it turns out that a very great deal is conveyed by this one small prop. Portia’s ring is nothing less than the symbolic representation of her whole person and of all of her property too. Portia expresses as much when she declares to Bassanio: ‘This house, these servants and this same myself / Are yours, my lord. I give them with this ring’ (3.2.173–4). As a gesture of largesse the declaration seems plain enough, but ‘there’s more depends on this’. For one thing, Portia is usurping her father’s patrimonial authority over her. The whole point of the casket test was to convey Portia in the form of the portrait prop in the leaden casket, but here Portia purports to convey herself in the form of another prop; and, crucially, Portia’s choice of prop is more figurative and therefore more totemic. The transfer of the portrait obviously symbolises the transfer of the whole, but a portrait is just too obvious. It lacks the figurative dimension that one associates with a genuine instance of synecdoche. A miniature picture of the whole leaves very little to the imagination as compared to an abstract prop that symbolises the whole, so the portrait lacks the dramatic force of partem pro toto. It does not obey the law of dramatic properties, and, compared to the ring, it suffers for it. The conveyance of Portia’s ring is the truly powerful conveyance in terms of its representational power and its place in the plot. Portia complains in her first scene that her will has been ‘curbed by the will 4 Karen Newman, ‘Portia’s Ring: Unruly Women and Structures of Exchange in The Merchant of Venice’ (1987) 38(1) Shakespeare Quarterly 19, 32. It cannot be denied that Gratiano favours a sexually suggestive strand of synecdoche, as when he threatens to “mar the young clerk’s pen” (5.1.249). 5 This line might also be a ‘metatheatrical joke’, given that the ‘gold’ ring prop was probably made of copper or other cheap metal (see C Ronan, ‘Anatomizing Shakespeare’s Jewelry’ (2006) 23(2) Discoveries (online)).

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of [her] dead father’. (1.2.16–17) This subjection to her father’s will provides the dramatic tension for the first part of her story. Later, immediately the casket test is concluded, she takes matters into her own hand by voluntarily conveying herself by the ring. We will see that by the transfer of this prop she pays formal lip-service to the legal world of men while in substance subverting it; and this provides dramatic tension for the second part of her story. The name Portia has a number of candidate etymologies. One derives from the Latin porcus meaning ‘pig’,6 which confirms a stark opposition to the Jew Shylock, whom she brings to ruin. Another alludes to the lex Porcia, a name given to a number of pre-Christian Roman laws which forbade scourging of Roman citizens and placed significant restrictions on the capital punishment of Roman citizens; because the lex Porcia was a law of mercy, it evokes Portia’s rhetoric of mercy and her legalistic intervention to spare the flesh of the citizen Antonio.7 However, the most obvious significations for the name Portia, and the most pertinent for present purposes, are not etymological at all. They are the senses ‘portion’ and ‘porter’ which are evoked by the very sound of her name. These senses are pertinent because Portia is a whole transported as a part or ‘portion’ of the whole. The word-play culminates in the fact that Portia is represented as a ‘portrait’, and there may even be an oblique reference to the financial ‘marriage portion’ that a wife brought to an Elizabethan marriage by way of dowry.8 But Portia is not merely the transported ‘portion’; she is also the ‘porter’ who carries and conveys herself with great purpose through the play. Her name captures her conflicting characteristics of independent self-determination and vulnerable subjection. When, in her opening line, Portia confides in Nerissa that her ‘little body is aweary of this great world’ (1.2.1) she objectifies herself and alienates herself from the body, the small frame, that she carries and is conveyed by others. Crucially, though, she is aware that her weariness is attributable to the fact that she is a portion bound to be conveyed in the merchant world of men. We recall that Antonio, in his opening lines, felt the same weariness, but, unlike Portia, lacked awareness to see its source: ‘In sooth, I know not why I am so sad. / It wearies me, … / And such a want-wit sadness makes of me / That I have much ado to know myself ’. (1.1.1–7) It takes his friends to point out that his weariness (like Portia’s) is caused by the work of great forces upon his small frame. Salerio informs Antonio that his ‘mind is tossing on the ocean’ bound up with his ‘argosies with portly sail’. (1.1.8–9) To which Salanio adds, ‘had I such venture forth, / The better part of my affections would / Be with my hopes abroad’.

6 The name Portia is said to derive from the Roman clan, the Porcii, who were breeders of pigs (Newman, n 4 above, at 23 n17). 7 However, just as the lex Porcia showed no mercy to non-citizens (including, significantly, Jesus of Nazareth), so too the ‘lex Portia’ extended no mercy to the non-citizen Shylock. In this respect the Jew Shylock is more Christ-like than the Christian Antonio. 8 L Engle, ‘“Thrift is Blessing”: Exchange and Explanation in The Merchant of Venice’ (1986) 37(1) Shakespeare Quarterly 20, 33. See also, Germaine Greer, Chapter 4.

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(1.1.15–17) From the perspective of transporting portions and the principle partem pro toto, phrases like ‘portly sail’ and ‘better part’ suggest new significance. But now to the law. Portia’s line, ‘[t]his house, these servants and this same myself / Are yours, my lord. I give them with this ring’ (3.2.173–4) appears in a passage containing the terms ‘in gross’ and ‘converted’, both of which carry technical significance in the law of property,9 so we should not be surprised to find that the line itself contains legal allusion. Indeed, it is from a legal perspective that Portia’s giving of the ring achieves its real power and its supremacy over her father’s capricious casket test. When Shakespeare was writing, the public giving of a ring was a well-known method of transferring title to freehold land. It was a symbolic method, a piece of legal theatre, but its effect was real. It is, of course, physically impossible to transfer legal title to land or even to transport the land itself (even if all the soil were moved, the physical space that is the land would remain), so a ritual was devised (known as ‘livery of seisin’) by which title to land could be transferred by the public, symbolic delivery of a physical part: partem pro toto. Frequently the part was a sod or turf cut from the land with a knife (as one might cut a pound of flesh) or a twig was cut from a tree growing on the land. As William West puts it in Symboleography, published shortly before Shakespeare wrote The Merchant of Venice:10 we may well define Liverie of seisin to be a Ceremonie in our law, used in the conveying of lands or tenements … The usuall maner of deliverie of seisin of houses, lands, tenements is, that the feoffor and feoffee if they be present … do come to the house or place whereof seisin is to be delivered: And there in the presence of Sundry good witnesses openly reade, or cause to be read, the deed of feoffement, and letter of Atturney thereof, or to declare the verie effect thereof before them in English: Which being so done, the feoffor or his Atturney must take a clot of earth, or a bough, or a twig of a tree thereupon growing, or the ring or hasp of the doore of the house, and deliver the same with the said deed unto the feoffee or his Atturney, saying: I deliver these unto you in name of possession and seisin of all the landes and tenements contained in this deed to have and to hold according to the forme and effect of the same deede. If the feoffment be without deed (as it may well be) then at the time of the deliverie of seisin, must bee expressed the very estate which the feoffee must have thereby.11 (emphasis added)

9 Where a property right exists ‘in gross’ it exists independent of any need to show that it is derived from a greater title. Portia gives herself ‘in gross’ in the sense that she gives herself as an independent whole. ‘Converted’ carries a similar meaning in law to that which it carries in religion. It denotes a fundamental change of substance even though the outer form remains unaltered. According to the ‘doctrine of conversion’, ‘equity will in certain circumstances regard personal property as real property’: G Watt, Trusts and Equity (3rd edn, Oxford, Oxford University Press, 2008) 545; Fletcher v Ashburner (1779) 1 Bro CC 497, per Sir Thomas Sewell MR at 499. The audience is prompted to imagine a similar alchemical transformation when Portia hands over the ring. 10 See the main text accompanying n 35 below. 11 W West, Symboleographie, which May be Termed, the Art, or Description, of Instruments etc (revised edn, London, Richard Tottle, 1592) Part I, Book II, 251.

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In the first part of his Institutes, Sir Edward Coke says that the feoffor may go on the land and take ‘the ring of the doore or turfe or twigge of the land and deliver the same upon the land to the feofee in name of seisin of the land’;12 citing Bracton’s phrase ‘per ostium et per haspam vel per anulum’.13 Portia’s words, spoken on the soil of her Belmont estate, are clearly reminiscent of the livery ceremony, but the authors of The Law of Property in Shakespeare and the Elizabethan Drama14 seem confident that ‘Shakespeare does not refer to [livery of seisin] at all’15 and another author is equally confident that Shakespeare ‘never mentions the subject’.16 It is true that the words ‘livery of seisin’ do not appear in Shakespeare’s works, but Portia’s reference is express enough, and at least one other author thinks so.17 But will a finger ring suffice or must it be the ring of the door to the house? Holdsworth recorded that ‘a sod from the churchyard will do, or a knife without any sod, or a glove, or indeed any small thing that lies handy’.18 The fact that a knife or glove will suffice indicates that the token of transfer needs no direct connection to the land. The knife is merely a prop to symbolise the cutting of land and the glove is nothing more than a token (unless it is meant to symbolise the ‘handing over’ of the land). Could a gold ring perform in a similar way? Apparently it could. In his book The Seisin of the Freehold, Joshua Williams observes that ‘[i]t was not … necessary that the article delivered should be anything concerning the land … the delivery of a parchment deed or of a gold ring in the name of seisin, was quite sufficient for the purpose’.19 As authority for this observation Williams cites a case decided towards the end of Shakespeare’s lifetime.20 In fact, the case he cites makes no reference to a gold ring. It does, however, mention that a piece of gold or silver will suffice (which seems highly appropriate given how closely gold is physically bound up with land),21 and it is 12

Sir Edward Coke, The First Part of the Institutes of the Lawes of England (1628) 59, 60. ‘[B]y the door, the hasp, or the ring of the house’: Henry de Bracton, De Legibus et Consuetudinibus Angliae li 2 ca18 s 12. 14 PS Clarkson and CT Warren, The Law of Property in Shakespeare and the Elizabethan Drama (New York, Gordian Press, 1968). This is the corrected reprint of the 1st edn (Baltimore, John Hopkins Press, 1942). 15 Ibid 113 16 Arthur Underhill, ‘Law’ in S Lee and CT Onions (eds), Shakespeare’s England: an Account of the Life and Manners of his Age (Oxford, Clarendon Press, 1916) 381 at 404. 17 AG Harmon, Eternal Bonds, True Contracts: Law and Nature in Shakespeare’s Problem Plays (Albany, State University of New York Press, 2004): ‘The significance of the contractual token, the ring, is more than symbolic in these terms. It becomes a requirement to the contract’s solemnization. Similar to English land transactions of Medieval and Renaissance times’ (at 92); ‘it entailed the delivery of a clod of earth, a twig, a hasp of the door or—most significantly, for my purposes—its ring, which symbolized the whole of the land conveyed’ (at 12). 18 WS Holdsworth, A History of English Law (London, Methuen, 1923) (rewritten 3rd edn of vols II–III) 86, cited in SE Thorne, ‘Livery of Seisin’ in Essays in English Legal History (London, The Hambledon Press, 1985) 31–50. 19 Joshua Williams, Esq, ‘The Seisin of the Freehold’ in Twelve Lectures Delivered in Gray’s Inn Hall (London, H Sweet, 1878) 99. 20 Thoroughgood’s Case (1611/12) 9 Coke’s Rep 136b, 137b, in the Court of Wards (also reported at 77 Eng Rep 925). 21 See Carolyn Sale, Chapter 9. 13

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plausible to suppose that a gold ring, being gold in a readily available and easily retainable form, was sometimes used. Portia’s giving of her estate by the ring now makes perfect sense. If it is an allusion to any legal rite, it is an allusion to livery of seisin. Certainly it makes more sense, in terms of legal symbolism, than to regard it as a simple betrothal ring. Leaving aside the fact that the ring was passed from the woman to the man, a betrothal ring would not have been intended to pass legal title to real estate; and a wedding ring, which did entail a moral (though not a legal) transfer of property (the Tudor ceremony contained the words ‘With thys ring I thee wed: Thys golde and siluer I thee geue: with my body I thee wurship: and withal my worldly goodes I thee endoew’),22 was of course not passed until the marriage ceremony itself. The play makes it clear that Portia’s transfer of the ring precedes her marriage.23 Nor should we doubt that livery of seisin was a common public spectacle in England during Shakespeare’s lifetime. Its popularity had decreased somewhat after the Statute of Uses (1535) permitted conveyance by deed in certain situations, but formal documentary conveyance was not a requirement until the Statute of Frauds (1677).24 It must still have commanded popular recognition and respect in 1583, because public delivery of a twig and turf was the very method chosen by the colonists at St John’s Harbor to perform the first English settlement of the New World.25 And it must still have been well known in 1616 when Ben Jonson mentioned it in The Devil is an Ass,26 and in 1623 when The Devil’s Law Case, John Webster’s play of merchants and lawyers, was first published. In that play the merchant Romelio has the line ‘Keep your possession, you have the door by th’ ring; / That’s livery and seisin in England’. (1.2.117–18) Thus Webster makes express what Shakespeare implies. Of course, Webster does not get the expression quite right. The law is ‘livery of seisin’ not ‘livery and seisin’, but Webster was in good company in this respect. Edmund Spenser made the same mistake in Book VI of The Faerie Queene,27 published around the time Shakespeare was writing The Merchant of Venice. The case for livery of seisin is clearly made out, but we should not forget that the transfer of Portia’s ring was not merely, or primarily, a stage rendition of legal theatre, it was also the passing of a prop intended to denote the figurative passing

22

Prayerbook of Edward VI. 3.2.310. 24 Even then, livery could be used alongside the deed. Livery of seisin was finally abolished in 1926, by the Law of Property Act 1925, s 51(1). 25 Sir Humphrey Gilbert ‘had delivered unto him (after the custom of England) a rod [small twig] and a turf of the same soil’: Richard Hakluyt, The Principall Nauigations, Voiages and Discoueries of the English Nation (Hakluyt Society Publications, Glasgow, 1904 (1598–1600)) vol VIII, 53–4; cited by P Seed, ‘Taking Possession and Reading Texts: Establishing the Authority of Overseas Empires’ in Stanley N Katz et al (eds), Colonial America: Essays in Politics and Social Development (5th edn) (New York: McGraw-Hill, 2001) 19, 20–1. 26 Fitz-Dottrell says ‘get the Feoffment drawn, with a Letter of Atturney, / For Livery and Seisin’. (4.5.16–17) 27 (1596) Book VI, iv, 37. 23

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of Portia’s whole person, partem pro toto. As Bassanio says: ‘when this ring / Parts from this finger, then parts life from hence’. (3.2.186–7) Yet Portia’s words are not as generous as at first they seem: Myself, and what is mine, to you and yours / Is now converted. But now I was the lord / Of this fair mansion, master of my servants, / Queen o’er myself, and even now, but now, / This house, these servants and this same myself / Are yours, my lord. I give them with this ring, / Which when you part from, lose, or give away, / Let it presage the ruin of your love / And be my vantage to exclaim on you. (3.2.169–77)

Portia confirms that, up until this moment, she has been ‘lord’, ‘master’, ‘Queen o’er myself ’. Despite formal subjection to her father’s will, she lacks no confidence in her own authority and independence. It is fitting, then, that the outward giving of herself by the ring turns out to be in substance a taking of Bassanio by the ring. The dynamic is one of taking by giving.28 Shakespeare allows Portia the advantage of dramatic foresight to anticipate the loss of the ring and she anticipates her entitlement to berate her lover in that event. The result is a subversion of the outward show of gift and with it a subversion of the legal world of men (a subversion which will shortly be perfected in her courtroom performance as the lawyer ‘Balthasar’). The moment Bassanio accepts Portia’s ‘gift’ of her ring, he is bound to her; paralleling the way in which Antonio’s ‘gift’ (the loan) to Bassanio binds Bassanio to Antonio, and Shylock’s ‘gift’ (the waiver of interest) in favour of Antonio binds Antonio to Shylock. Portia’s ring on Bassanio’s finger, no less than Antonio’s signet ring with which he sealed the bond, forms a link in the chain of enthralment that runs through the play.

THE SCALES When Bassanio says ‘beauty [is] purchased by the weight’ (3.2.90–1), he perfects the equation of Portia and wealth, and, further emphasising the play’s broad theme of ‘human as commodity’, his words can be read as an allusion to the Roman ceremony of mancipatio, by which property (including slaves) was purchased by striking a weight of copper (aes) against a set of scales held by the libripens in the presence of five adult witnesses (cives).29 The copper weight symbolised the purchase price, but apparently was not actually handed over, 28 The same dynamic operates when Shylock lends money without interest. It is a shame that Antonio did not follow the example of ‘Father Abraham’ of the Old Testament. Abraham (and Shylock, it can be assumed) understood the danger of accepting a gift from a member of a foreign tribe (see Genesis 23:13–16, discussed in G Watt, ‘Breed of Metal and Pound of Flesh: Faith and Risk in Metaphors of Usury’ (2007) 2 Polemos 95, 112). 29 WW Buckland, A Manual of Roman Private Law (Cambridge, Cambridge University Press, 1928) 121.

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being purely symbolic of the real payment to follow. This is where mancipatio differed from traditio. Traditio— which is the etymological origin of two central and conflicting themes in The Merchant of Venice: ‘trade’ and ‘tradition’— involved an actual handing over of the ‘prop’, the symbol of conveyance (hence Bracton identified livery of seisin as a direct descendant of the Roman traditio).30 When Shylock appears in the courtroom carrying a knife and a set of scales he is no doubt a parody of the iconic goddess Justitia (she with sword and scales), but now we can also see in his props a symbol of Roman slavery (the scales) and of English land transfer (the knife). It is doubtful that Shakespeare had the latter signification in mind, but allusion to mancipatio of slaves is hinted at in Shylock’s line ‘You have among you many a purchased slave, / Which, like your asses and your dogs and mules, / You use in abject and in slavish parts, / Because you bought them’ (4.1.91–4). It is tempting to suppose that ‘asses’ was chosen because Shakespeare sub-consciously recalled the ‘aes’ from the mancipatio ceremony. More plausibly, we can find a joke in the line: Shylock is alluding to the fact that the so-called ‘free’ citizens of Venice, Antonio and Portia included, not only trade in slaves but also trade themselves as if they were slaves.

THE POUND OF FLESH Shylock’s security is, as he tells Antonio, ‘an equal pound / Of your fair flesh, to be cut off and taken / In what part of your body pleaseth me’. (1.3.141–3) The pound is, as Shylock says, only a part of the whole, but we know as well as he that the part represents the whole. This becomes clearer when Shylock chooses for the allotted part the flesh nearest Antonio’s heart. The pound is Antonio, partem pro toto. The choice of the word ‘pound’ emphasises the synecdoche: it tells us that Antonio is figuratively ‘made of money’; Antonio admits as much when he exclaims ‘my purse, my person’ (1.1.140). Of course Antonio’s person, and presumably his purse, are both visible on stage, but his pound of flesh never is. It perhaps follows that the pound of flesh cannot qualify as a prop stricto sensu, but in some ways its invisibility, through corporeal occlusion, serves actually to enhance its dramatic power. An object is created in the imagination by outlining an empty space in the mind into which that object, and that object only, can fit. Thus, absence can create a stronger sense of presence than presence itself. The rhetorical device of ellipsis operates in the same way.31 30

Henry de Bracton, De Legibus et Consuetudinibus Angliae li 2 ca 18. A pound of animal flesh can be employed as a prop in the play. An example appears in the opening scenes of the 2004 film production starring Al Pacino as Shylock, where he is shown purchasing a weight of animal flesh at market. The use of flesh as a prop can assist in the imaginative process of substantiating Antonio’s pound of flesh, but the risk is that the prop will usurp the imaginary space reserved for Antonio’s pound of flesh and thereby defeat its dramatic object. 31

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We have already observed that from the very start of the play, Antonio’s body is paralleled with the physical form of his absent ships. In this way Shakespeare captures the imagination of the audience from the outset through the drama of anticipation: either Antonio’s ships must ‘appear’ or his pound of flesh must. When we hear the rumour that Antonio’s ships are wrecked off-stage, our expectation is heightened that we will soon see Antonio’s body wrecked on stage. Antonio’s discomfiting associates, Salerio and Solanio, develop the rumour at the end of Act 2 scene 8, and in the very next scene the casket game resumes at Belmont. This juxtaposition of the ‘shipwreck’ scene with the quest to reveal Portia’s hidden portrait heightens the expectation that Antonio’s hidden pound of flesh will shortly make an appearance on stage. Two short scenes later, Portia’s portrait is at last discovered and Antonio’s letter reaches Belmont with the news that Antonio’s ships have all been wrecked. So the moment Shakespeare sates our appetite to see the hidden part that represents Portia’s all (the portrait in the casket), he intensifies our appetite to see the hidden pound of flesh that represents Antonio’s all. Bassanio’s language reveals that his imagination has already foreseen the worse: ‘Here is a letter, lady, / The paper as the body of my friend, / And every word in it a gaping wound, / Issuing life-blood’. (3.2.268–71) Obedient to the law of dramatic properties in the play, Bassanio is blatant in using the letter prop partem pro toto as synecdoche to embody Antonio’s utter ruin. It is not only Antonio’s friends who see Antonio embodied in his ships.32 Antonio makes the link himself. The letter read out in Belmont reports that his ‘ships have all miscarried’ (3.2.322) and that word ‘miscarried’ he later applies to his own body: ‘I once did lend my body for thy wealth; / Which, but for him that had your husband’s ring, / Had quite miscarried’. (5.1.263–5) The purse, the letter and the pound of flesh are parts which represent Antonio’s whole in accordance with the dramatic law of partem pro toto, but the ship might be said to function as a more mundane form of metonymy. At first sight there is no synecdoche, no part representing a whole, but this is where the law comes in again. Shakespeare borrowed the ‘pound of flesh’ bond, as he borrowed so much of the plot of The Merchant of Venice, from a medieval Italian tale in Ser Giovanni’s, Il Pecorone;33 hence the undeniable fairy-tale qualities of the play. Just as the Italian tale was drawing on folk-memory of the flesh-bond in early Roman law,34 so Shakespeare drew upon the nature of legal bonds ancient and modern. It would be a mistake to attempt an exact identification of the Antonio-Shylock

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See, further, n 3 above. The Pecorone of Ser Giovanni (WG Waters (trans, London, Lawrence and Bullen, 1897). 34 The Twelve Tables provided for creditors to take shares in the corpse of an insolvent debtor: ‘tertiis nundinis partes secanto: si plus minusque secuerunt, se fraude esto’ (‘on the third market day let them cut the shares. If they have cut too much or too little, be it free from blame’, RW Lee (trans)). Lee makes the point that the last words ‘anticipate and avoid’ Portia’s unreasonable assertion that Shylock would have to die if he took so much as a hair’s weight too much of Antonio’s flesh (4.1.330–8). See RW Lee, The Elements of Roman Law (4th edn, London, Sweet and Maxwell, 1956) 428. 33

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bond with any particular form of legal bond, but it has similarities with several that were current at the time the play was written. First published in 1590, William West’s Symbolæography appeared as a corrected second imprint in 1592,35 around six years before Shakespeare finalised the text of The Merchant of Venice.36 West’s book was, amongst other things, a handbook on forms of legal instruments, and it describes several forms of bond. Some are reminiscent of Antonio and Shylock’s transaction before the notary, especially a form of bond known as ‘Statute Merchant’: A Statute is a Bond of Record sealed, testifying the Debtor to ow unto the Creditor a certaine summe of mony, And the same Bond is knowledged before such persons & in such manner as is appointed by Statutes in that behalfe made. And thereof bin such bonds termed Statutes, & they be of two sorts, that is to say, Statutes Marchant, and Statutes Staple. A Statute Merchant is a Bond knowledged before one of the Clerkes of the Statutes Merchant and Maior or chiefe Warden of the Citie of London, or two Marchants of the said City for that purpose assigned, or before the Maior, chief Warden or Maister of other cities or good towns, or other sufficient men for that purpose appointed, And sealed with the Seale of the debtor … The execution upon Statutes Merchant is first to take the bodie of the debtor if he be lay & can be found, if otherwise, then upon his lands and goods.37

There are also parallels between the Antonio-Shylock bond and an Elizabethan maritime bond; parallels which have hitherto escaped scrutiny. The bond is known as the ‘bottomry bond’.38 The essence of the bottomry bond is that the owner of a ship borrows money in some emergency and grants the keel or bottom of his ship as security for the loan. If the bottom is lost, so is the ship. If the ship is lost, so is the loan. The great risk taken by the lender is offset by exemption from the normal rules against usurious rates of interest. The bottomry bond and the ‘pound of flesh’ bond are in no technical sense the same (for one thing, the Antonio-Shylock bond was interest-free), but they have striking features in common. Both operate partem pro toto and in both cases the lender derives no material benefit from possession of the security: a lender with a bottomry bond does not want the bottom of a wrecked ship, and neither is there benefit to Shylock in Antonio’s flesh (1.3.155–9)—apart, perhaps, as bait for fish 35

West, Symboleography, n 11 above. Henslowe’s Diary refers to ‘the venesyon comodey’ performed on 25 August 1594, which may have been an early version of Shakespeare’s The Merchant of Venice. Even so, we can be fairly sure that certain elements were not added until 1596 (see eg, the reference to the ship The Andrew, discussed in n 3 above) and it is reasonable to assume that the play was corrected right up until it was submitted for printing on 22 July 1598 (it is entered in the Stationer’s Register on that date: Arber’s Transcript, vol iii, 122). Of course, the play might even have received further minor amendment prior to its actual print publication in 1600. 37 West, Symboleography, n 11 above, Part I, Book II, 151. 38 The bottomry bond is no longer used in practice, but in theory it remains a part of the jurisdiction of the Admiralty Court. The Supreme Court Act 1981, s 20(2)(r) refers to ‘any claim arising out of bottomry’. 36

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(3.1.37). Another point in common is that the borrower in both cases retains possession of the security (the boat and the pound of flesh respectively) even after the bond is sealed.39 Parallels between the fictional bond and the bottomry bond are made possible because Shakespeare had the idea (he did not derive it from Il Pecorone) of employing Antonio’s ships as metonymy for Antonio’s body. There is no evidence to suggest that Shakespeare had actually heard of the bottomry bond, but we do know that the bodemerij bond was widely used in Holland in the 1590s,40 by which time it was already very well established there,41 so it must have come to the attention of London merchants by the time Shakespeare wrote the play. The bond is recognised in an English court report in 1614 (though not by name),42 and it must have been very well known to English merchants by 1622, when Malynes wrote his seminal text on merchant law, Consuetudo vel Lex Mercatoria. By then it had been Anglicised as ‘Bottommarie’ and had enjoyed an extensive commercial history. Malynes records that it had already been associated with widely varying interest rates: The name Bottommarie is derived by the Hollanders from the Keele or Bottome of a ship . . . The money so taken up by the master of the ship, is commonly done upon great necessitie … the use payed for the same is verie great, at 30, 40, and 50 pro cent. without consideration of time.43

39

In other words, the security takes the form of hypothec rather than pledge. JI Israel, Dutch Primacy in World Trade 1585–1740 (Oxford, Clarendon Press, 1989) 76–7. Israel notes that the interest on bottomry loans for voyages to Russia in the 1590s was around 15 per cent (citing Simon Hart, Geschrift en getal (Dordrecht: Historische Vereniging Holland, 1976) 299–300). He refers to one loan made in 1598 (the year The Merchant of Venice went to press) that was at 44 per cent interest (GA Amsterdam NA 80, fs 134–5). For recent commentary, see W Fritschy, ‘Holland’s Public Debt and Amsterdam’s Capital Market 1585–1609’ in C Sanz Ayán and BJ García García (eds), Banca, crédito y capital. La Monarquía Hispánica y los antiguos Países Bajos (1505–1700) (Madrid, Fundacion Carlos de Amberes, 2006) 39–59. 41 Bottomry is listed in the Amsterdam archives many years before modern-style insurance is mentioned. JP Vergouwen notes that ‘In the . . . Amsterdam Ordonnantie (mid-15th century), bottomry, or an early form of bottomry, is mentioned. Insurance is not mentioned in any way’. (De Geschiedenis Der Makelaardij in AssurantiënHier te Lande Tot 1813 (Zuid-Hollandsche Uitgevers Mij. ’s-Gravenhage, 1945) 13 n 2). The same author makes a similar observation in relation to an Amsterdam ordinance of 26 January 1579 (Municipal Archives of Amsterdam, By-laws, Book C, f 191). Vergouwen states, at 29, that ‘in the quite elaborate list of brokers’ fees, as determined by the Amsterdam by-law of 26th January 1579, bottomry is listed, but insurance is not’. Another author has found an ordinance issued by the Heeren van de Gerechte (municipal authorities) dated 28 October 1578 which states that a broker will not lend on bottomry to shippers (masters/captains) ‘whom they know to be broke and to have spent too much, or of whom they have such suspicions’ (‘De maekelaers (art 4) zullen geene schippers, die sij weten berooyt ende de beurs ten achteren geteert te hebben, ofte daervan wij sulx vermoeden hebben, helpen aan eenige bodemerij’, from Th Stuart, De Amsterdamsche Makelaardij (Amsterdam, 1879). He states that the ordinance is to be found in the Keurboek (Municipal Archives of Amsterdam, By-laws) Book F, f 160, of 28 October 1578. For finding and translating these sources, I am most grateful to Sabine Go, a graduate student of the Vrije Universiteit, Amsterdam. 42 Bridgeman’s Case (1614) Hob 11, and 1 Roll Abr 350 [(C)], pi 2; 80 Eng Rep 162. 43 Gerard Malynes, Consuetudo vel Lex Mercatoria (London, Adam Islip, 1622) 171. 40

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The notion of taking the ship itself as security was not a new one; it goes at least as far back as the Romans.44 What was new was the language of taking the keel or bottom of the boat and by the time Blackstone comes to define bottomry in his Laws of England, he makes express the fact that the keel or bottom of the ship is offered ‘partem pro toto’.45 When Antonio boasts that his ‘ventures are not in one bottome trusted’ (1.1.43) the word ‘bottome’ was certainly being used as standard Elizabethan vernacular for boat (indeed the whole phrase ‘in one bottom’ is later used by a number of Elizabethan and Jacobean dramatists, and by Malynes himself, to indicate dangerously undiversified risk), but Shakespeare might also have had the bottomry bond in mind. Even if he did not, it is highly likely that merchants in his audience did. At the end of the courtroom scene in Act 4, Shylock finds himself in the position in which he had imagined Antonio. By taking Antonio’s pound of flesh he would have killed Antonio, partem pro toto. Now with the threat that his house will be taken from him, Shylock anticipates that his life will pass with his house, partem pro toto: ‘You take my house when you do take the prop / That doth sustain my house. You take my life / When you do take the means by which I live’. (4.1.382–4) In Tudor England, the props were the wooden foundations upon which the whole house was built; so just as Antonio’s life was built upon the wooden bottoms (the ‘ribs’) of his ships, so Shylock’s life was built upon the wooden foundations of his house; in both cases partem pro toto, in accordance with the law of dramatic properties. In summary, we can see that the bridge between the play and the law is built out of ‘properties’ or ‘props’ in multiple senses of the word. The ‘dramatic properties’ (props) have the dramatic property (quality) of synecdoche, which is to say that they obey the dramatic law of partem pro totem, and by this property they link the play to the law of property that governs such things as rings and ships. Finally, the whole world of the play from Shylock’s house to Antonio’s ships, even the stage itself, is built upon wooden props.

ACT 6 OF THE MERCHANT OF VENICE It is all too easy for lawyers to treat Act 4 scene I of the play as if it were the whole play. Andrews’ book falls into this trap.46 Taking a wider view, Weisberg stresses the need for lawyers in particular to rediscover the significance of Act 5,47 and 44

Dig 22, 2 Code, iv; Dig 45.I.122.I. Sir William Blackstone, Commentaries on the Laws of England (1765–69) Book II, cap xxx. 46 ME Andrews, Law Versus Equity in The Merchant of Venice (Boulder, University of Colorado Press, 1965). 47 Richard H Weisberg, Poethics (New York, Columbia University Press, 1992) 94–104. 45

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Kornstein invites us to imagine an Act 6.48 Just as the play begins and proceeds with an invitation to imagine the progress of Antonio’s ships off-stage, so it concludes in a way which forces us to contemplate the action off-stage after the play’s conclusion. The imagination is compelled to this by the total and profound absence of Shylock from Act 5. So if we accept the invitation to imagine Act 6, what do we find? We find that the most significant action of Act 6 is Shylock’s forced conversion to Christianity, in accordance with the cruel condition that Antonio set upon the commutation of Shylock’s capital sentence. (4.1.393–4) The forced conversion is significant in many ways, mostly because it contains a chill echo of the Venetian inquisitions49 and the first Jewish ghetto (with the terrible significance which that now carries for the modern reader), but also because it obeys the law of dramatic properties that runs through the play, the law of partem pro toto. The conversion of Shylock would have entailed two of the most significant public rituals in Elizabethan England: Baptism at the font, followed by the Eucharist. If we assume that Shylock did indeed submit to the sentence of conversion he would, in receiving the sacraments of Baptism and the Eucharist, have received what Sir Francis Bacon called the ‘seals to the covenant’.50 Thus, Shylock’s faith in the resilience of the wax seal on Antonio’s bond (4.1.141) comes back to haunt him in the form of a truly inviolable seal. In his book, The Stage Life of Props, Andrew Sofer, calls the Eucharist wafer the ‘ur-prop of post-classical Western drama’.51 It is certainly a candidate for that label, and in the course of this chapter we have discovered why. The Eucharist wafer is the embodiment of synecdoche as it is the embodiment of Christ. 1577 saw the publication of Christoph Rasperger’s Roman Catholic pamphlet, Ducentae Paucorum,52 which comprises an annotated catalogue of theological interpretations of Christ’s words ‘this is my body’. One interpretation is listed as ‘corpus scilicet accipiendum esse pro pane et corpore simul, partem pro toto’ (‘the body is of course accepted to be in essence bread and flesh at the same time; a part for the whole’).53 Antonio is not convincingly Christ-like at heart, but he is figured to represent or parody aspects of the New Testament account as Shakespeare’s audience would have understood it, including taking on another’s debts to the point of laying down his life at the hands of a Jewish adversary and an ‘Italian’ judge. It follows that when Shylock is forced to eat the Eucharist wafer, and is therefore eating the body of Christ (figuratively or really depending upon one’s theology), he is also eating Antonio’s flesh insofar as Antonio was intended to portray Christ. The audience watching

48 Daniel J Kornstein, Kill All the Lawyers?: Shakespeare’s Legal Appeal (Princeton, Princeton University Press, 1994) ch 4. In his ‘Act VI’ he posits an appeal by Shylock to a modern court. 49 See B Pullan, The Jews of Europe and the Inquisition of Venice 1550–1670 (London, IB Tauris, 1997) 264 (reprinted edn of the 1st edn, 1983). 50 The Advancement of Learning (1605) cap XXV. 51 A Sofer, The Stage Life of Props (Ann Arbor, University of Michigan Press, 2003) 31. 52 Ducentae paucorum istorum, et quidem clarissimorum, Christi verborum: Hoc est Corpus meum. 53 Cap VI interpretatio lxxix.

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Act 6 will see Shylock acquire the pound of flesh at last, and with it the desolation of Antonio’s life: partem pro toto. Antonio is sad at the start of the play, and Shylock takes his sadness at its conclusion. This is no ‘fairy-tale’ ending.

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16 Shylock in Transylvania: Anti-Semitism and the Law in East Central Europe ISTVÁN POGÁNY*

JEWS AND GENTILES IN SHAKESPEARE’S EUROPE HAKESPEARE WROTE The Merchant of Venice in the last decade of the sixteenth century. At the time, only small numbers of Jews lived in England following the wholesale expulsion of the country’s Jewish population in 1290. This mass expulsion, or ‘ethnic cleansing’ as we would now label it, had been the culmination of a period in which England’s Jews were subject to pogroms, false accusations and multiple, judicially-sanctioned executions, while their assets were progressively appropriated by the Crown in a process that was as cynical as it was rapacious.1 In Shakespeare’s time, most of the Jews living in London were Marranos. Descendants of Spanish and Portuguese Jews who had been forcibly converted to Christianity, many Marranos continued to practice Judaism in the privacy of their homes.2 However, the position of Jews in late sixteenth century England, whether Christian converts or not, was precarious. In 1609, little more than a decade after The Merchant of Venice was written, ‘Portuguese merchants in London who were suspected of Judaizing … were expelled from the country’.3 In 1593–94, as * All translations from Hungarian and French, unless indicated to the contrary, are by the author. I am grateful to Dr Paul Raffield for his helpful comments on an earlier draft of this chapter and to the British Academy for a grant that enabled me to undertake research in Hungary and Transylvanian Romania. 1 Cecil Roth, A History of the Jews (rev edn, New York, Schocken Books, 1970) 207–9. 2 See, generally, on the Marranos, or ‘new Christians’, LP Gartner, History of the Jews in Modern Times (Oxford, Oxford University Press, 2001) 12–17. 3 Roth, n 1 above, at 301.

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Shakespeare and his audiences would have been aware, Dr Roderigo Lopez, a Jewish physician who had treated Queen Elizabeth I, was arrested, tortured and executed, ‘the victim of a notorious anti-Semitic witch-hunt and treason trial’.4 Although the actual number of Jews in late sixteenth and early seventeenth century England was modest, the country’s fledgling Jewish population was viewed through the prism of entrenched anti-Semitic stereotypes:5 There were only a couple of hundred [Jews], but their small number bore no relation to the threatening aura that attached to them—the product of a long history of antiSemitism in England going back to the blood libels of the Middle Ages.

In his history of anti-Semitism, Léon Poliakov emphasises that anti-Jewish feeling flourished in England despite the virtual absence of Jews: ‘leur fantôme continuait à troubler les imaginations longtemps après leur départ’.6 After the wholesale expulsion of the Jewish community from Spain, in 1492, Henry VII of England denied exiles the right to settle in his dominions.7 Unlike England, Spain or Portugal, Venice did not expel its Jewish community. The notional setting for The Merchant Venice had been an important hub of trade since the early Middle Ages. Nevertheless, despite their acknowledged commercial usefulness to the city state, Jews were subject to numerous restrictions and legal disabilities, including the requirement to pay special taxes. In the early sixteenth century, Venice’s Jews were required to move to a speciallyconstructed ghetto.8 All windows that looked outwards were blocked up, while Jews were only permitted to quit the new ghetto during the day in order to earn their living.9 The cost of leasing the ghetto and of hiring Christian guards to patrol its perimeter, to prevent Jews from leaving during the hours of curfew, was borne by the Jewish community itself.10 Whatever Shakespeare’s personal views may have been concerning Jews, either individually or collectively, it is evident that, ‘[l]ike all English people of his age, Shakespeare was brought up in an anti-Semitic culture’.11 To varying degrees and in various forms anti-Semitism was an integral feature of the intellectual and moral landscape of medieval and renaissance Europe, including that of England.12 As Sir John Hale notes, in his history of renaissance Europe, Jews were

4

Paul Johnson, A History of the Jews (London, Phoenix, 1995) 276. Michael Wood, In Search of Shakespeare (London, BBC Books, 2005) 221. 6 Léon Poliakov, Histoire de l’antisémitisme (Paris, Calmann-Lévy, 1981) vol 1, 353. 7 Ibid. 8 Roth, n 1 above, at 273. 9 Johnson, , n 4 above, at 235. 10 Ibid. 11 Wood, n 5 above, at 221. 12 See generally, Friedrich Heer, The Medieval World (J Sondheimer (trans), London, Weidenfeld and Nicolson, 1993) ch 13; John Hale, The Civilization of Europe in the Renaissance (New York, Atheneum and Maxwell Macmillan International, 1994) 167–9. 5

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routinely ‘rounded on as scapegoats when wars went wrong or when food shortages pushed prices sky-high’.13 At such times, ‘preachers called for vengeance upon the crucifiers’.14 The religious, ie Christian, component of medieval and sixteenth century anti-Semitic discourse was pronounced. The Catholic Church’s fourth Lateran Council adopted a decree in 1215 requiring Jews to wear a form of dress that clearly distinguished them from Christians. The consequences of this enforced physical differentiation were all too predictable: ‘The distinctive yellow patch, horned cap and other emblems of Cain invited the hostility of those who saw the Jews as the “murderers of Christ”’.15 Religious reformers of the sixteenth century, including Martin Luther and numerous followers of Calvin, were no less robust in their opinions concerning Jews.16 In the latter years of his life, Luther exhibited an almost pathological hatred of the Jewish faith and its adherents.17 In 1543, Luther published a lengthy pamphlet entitled Against the Jews and their Lies in which he called for a number of radical steps to be taken against them:18 First, that their synagogues be burned down, and that all who are able toss in sulphur and pitch … Second, that all their books, their prayer books, their Talmudic writings, also the entire Bible, be taken from them, not leaving them one leaf … Third, that they be forbidden on pain of death to praise God, to give thanks, to pray, and to teach publicly among us and in our country.

As emphasised above, English society in the second half of the sixteenth century, like the countries of continental Europe, was permeated by anti-Semitism. The audiences that attended the first productions of The Merchant of Venice in the 1590s, as Shakespeare would have been well aware, were intimately familiar with the image of the Jew as usurer, as miser and as Christ-killer.19

13

Hale, n 12 above, at 168. Ibid. Heer, n 12 above, at 255. 16 Hale, n 12 above, at 168–9. 17 Poliakov, n 6 above, vol 1, at 364–73. 18 Martin Luther, Against the Jews and their Lies: available at www.humanitas-international.org/ showcase/chronology/documents/luther-jews.htm 19 Of course, Christians in England, as in Europe more generally, were sharply divided in their loyalties and beliefs in the late sixteenth and seventeenth centuries. As Norman Davies observes: ‘Religious discrimination was the norm in early modern Europe. England was no exception’: Norman Davies, The Isles: a History (London, Papermac, 2000) 604. Catholic enmity towards Protestantism was mirrored by Protestant detestation of Catholicism. The grisly execution of ‘heretics’ became a well-established practice in Tudor England as in various parts of continental Europe, along with the wilful destruction of religious artworks that were deemed ‘ungodly’. Hale, n 12 above, at 460–3. 14 15

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POPULAR CONSTRUCTIONS OF THE JEW IN THE MERCHANT OF VENICE Whether The Merchant of Venice should be read as an anti-Semitic or as a philo-Semitic text has aroused considerable interest and speculation. In his recent book, In Search of Shakespeare, Michael Wood poses the following question:20 is it anti-Semitic? Some characters support the removal of strangers, but others reject it. Perhaps such theatrical conflict was what he [Shakespeare] was aiming for. But then again, this was drama written for a popular audience, and Shakespeare typically harnessed the dramatic excitement of anti-alien feelings.

However, as Wood acknowledges elsewhere in the same book, Jews in Shakespeare’s day were not merely hated or despised because they were ‘alien’. Jews were not analogous to the Dutch, the Danes or the Portuguese in the popular imagination. Jews represented a distinct and particularly egregious category of ‘foreigner’, one that continued to reject Christ and which had been collectively complicit in his death. Jews were also widely detested because of their association with the practice of usury. In a general and rather diffuse sense, English society in the latter part of the sixteenth century was ‘anti-alien’. However, the English society of that time was also unabashedly anti-Semitic, with Jews understood in terms of a series of well-worn negative stereotypes that find ample expression in The Merchant of Venice. Various commentators have noted that Shakespeare sometimes reflected the ‘prevailing view’ of Jews in his plays, ‘using the word “Jew” as an oath in jokes that suggest the deprecating attitude to them that was part of normal Christian speech’.21 It is this ‘prevailing view’ of Jews in late sixteenth century England and the notion of ‘normal Christian speech’ that are of particular interest here, a ‘normality’ that, at least in the experience of the author, survived pretty much intact in 1960s England.22 By contrast, this chapter is not directly concerned with the question of Shakespeare’s personal beliefs concerning Jews or anti-Semitism as reflected in The Merchant of Venice. Such matters, however tantalising, are best left to specialist literary scholars.

20

Wood, n 5 above, at 221–2. Ibid 221. 22 In the mid 1960s, as I well recall, middle and upper middle class grammar school boys of my acquaintance, in a mostly affluent part of Cheshire, routinely used the term ‘Jew’ to denote meanness a mere 20 years after the Holocaust, a subject never broached at school. A ‘Jew’s arse’, another expression then in use, referred to the tip of a cigarette that had become unpleasantly moist due to an excess of saliva. The popular image of the Jew as mean, avaricious and cowardly, depicted in The Merchant of Venice in late sixteenth century England, had survived intact over the course of four centuries. 21

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Shakespeare’s intent in The Merchant of Venice may have been subversive: to challenge and subvert the anti-Semitic stereotypes of his day. As Jonathan Bate points out, the Christians in the play are ‘no better’ than the Jews while Shylock, the Jewish money-lender, is a complex figure, ‘one of the most memorable characters in all literature’.23 Peter Ackroyd’s assessment of Shylock is eloquent and astute:24 he [Shylock] could never become a caricature; he is too filled with life and spirit, too linguistically resourceful, to be conventionalised. He is altogether too powerful and perplexing a figure. It is almost as if Shakespeare fully intended to create a character drawing upon conventional prejudices about an alien race, but found that he was unable to sympathise with such a figure. He simply could not write a stereotype … That is why he [Shylock] is perhaps, like so many of Shakespeare’s principal figures, beyond interpretation. He is beyond good and evil. He is simply a magnificent and extravagant stage representation.

Whatever Shakespeare’s aims in the play may have been, or his personal views (if any) regarding Jews and their faith, it is clear that many of the characters in The Merchant of Venice express conventional, anti-Semitic sentiments of the type that would have been commonplace in the England of the late sixteenth century. Whether we consider the observation of the merchant, Antonio, in Act 1 scene 3: ‘The Hebrew will turn Christian, he grows kind’, or his comment in Act 4 scene 1: ‘You may as well do anything most hard / As seek to soften that—than which what’s harder? / His Jewish heart’, the play expresses the popular view of Jews as callous and vindictive. Gratiano’s warm and appreciative comments about Jessica, Shylock’s daughter, in Act 2 scene 6: ‘Now by my hood a gentle and no Jew!’ evokes the widespread identification of Jews with ignoble feelings and behaviour. In a lighter vein, for this was an era in which anti-Semitism fuelled humour as well as drama, Shylock’s servant, Launcelot Gobbo, rounds on his father, in Act 2 scene 2, for bringing Shylock a present: ‘My master’s a very Jew. Give him a present? Give him a halter! I am famished in his service; you may tell every finger I have with my ribs’. The Jew as miser, unwilling to deal fairly, let alone generously, with those around him is yet another familiar anti-Semitic libel that finds expression in the play. While Shakespeare may have been encouraging his audience to revise their anti-Semitic prejudices, The Merchant of Venice presents us with copious evidence as to what those prejudices were. The play represents a window onto English society in the late sixteenth century, a society in which antipathy towards Jews and their faith was casual, unthinking and almost universal. In itself, there is nothing particularly surprising in the fact that Shakespeare’s England should have been steeped in anti-Jewish stereotypes. Rather, it is the

23 24

Jonathan Bate, The Genius of Shakespeare (London, Picador, 1998) 127. Peter Ackroyd, Shakespeare: the Biography (London, Vintage Books, 2006) 272.

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survival, growth and mutation of anti-Semitic prejudices, over the course of succeeding centuries, which should give us pause for thought. The history of Europe’s Jews should on no account be understood as an uninflected narrative of marginalisation, discrimination, ghetto-isation and expulsion, culminating in the genocide unleashed during the Second World War. However, neither should we lose sight of the fact that the legal emancipation of most of Europe’s Jews, in the nineteenth century, was followed by a resurgence of anti-Semitism across much of the continent.25 Unlike the mostly religious Jew-hatred of the late Middle Ages and the renaissance, anti-Semitism in the late nineteenth and early twentieth centuries was, for the most part, predominantly secular in character, a product of the new nationalist discourse that frequently labelled Jews as antithetical to the ‘nation’.26 In addition, secular anti-Semitism had its roots in the perception, especially strong in East Central and Eastern Europe, that Jews were the agents and principal beneficiaries of unwelcome socio-economic changes that threatened traditional, agrarian cultures.27 After the passage of emancipation laws that granted Jews full legal equality, including access to the professions and to posts in the public administration, anti-Semitism also fed on the fears of entrenched economic interest-groups who feared new and unwelcome competition.28 In the increasingly chauvinistic political climate of inter-war Europe, The Merchant of Venice was seized upon by anti-Semitic regimes and their supporters who used the play as a crude ideological tool. The Merchant was staged no fewer than 20 times in Germany in 1933, the year in which Hitler came to power.29 In the next five years, German theatres mounted the play on more than 30 occasions, while further productions of The Merchant were put on during the war. The ambivalence that lies at the heart of Shakespeare’s art, perhaps of all great art, was eschewed in favour of crude anti-Semitic stereotypes. Rather than serving as a vehicle for the exposure of European hypocrisy, racism and antiSemitism, The Merchant of Venice became an adjunct to the Nazi propaganda arsenal, irrevocably tainting the play in the eyes of many of the continent’s surviving Jews and of numerous anti-Nazis.

25

Gartner, n 2 above, at 217–38. Eric Hobsbawm, Nations and Nationalism since 1780 (2nd edn, Cambridge, Cambridge University Press, 1992) 105. See also, HM Sachar, The Course of Modern Jewish History (rev edn, New York, Vintage Books, 1900) 256. 27 Peter Pulzer, The Rise of Political Anti-Semitism in Germany and Austria (rev edn, London, Peter Halban, 1988) 286. 28 I Pogány, ‘Poets, Revolutionaries and Shoemakers: Law and the Construction of National Identity in Central Europe during the Long 19th Century’ (2007) 16 Social and Legal Studies 94, 105. 29 Tibor Egervari, ‘Shakespeare’s The Merchant of Venice in Auschwitz’ (A Léger (trans)), available at www.canadianshakespeares.ca/a_auschwitz.cfm 26

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FROM THE MERCHANT OF VENICE TO THE DEATH CAMPS: JEWS, ANTI-SEMITISM AND THE LAW IN TRANSYLVANIA Law, Anti-Semitism and Jewish Emancipation in Transylvania prior to the Second World War Long contested by Hungary and Romania, Transylvania lies at one of Europe’s crossroads. In accordance with modern practice, ‘Transylvania’ is to be understood as the totality of territories Romania gained from Hungary in the peace settlement following the First World War. These territories included part or all of the Hungarian counties of Máramaros, Szatmár, Bihar, Arad, Krassó and Temes, as well as the former Principality of Transylvania. The latter, sometimes referred to as ‘historic Transylvania’ in the literature, enjoyed a curious, semi-independent existence for a little over 100 years, from the middle of the sixteenth century, until its absorption into the Habsburg Empire.30 Jewish settlement in Transylvania can be traced back to the fourteenth and fifteenth centuries when the region formed part of the medieval Kingdom of Hungary.31 Initially, the Jewish settlers were of German, or Ashkenazi, extraction. However, in the sixteenth and seventeenth centuries, increasing numbers of Sephardic Jews, originating from the Iberian Peninsula, migrated to the region. One of Transylvania‘s most dynamic and effective rulers, Gábor Bethlen, issued a decree in June 1623 permitting Sephardic merchants from Ottoman Turkey to settle in the town of Gyulafehérvár. Bethlen‘s explicit purpose, apparent from the preamble to the decree, was to utilise the skills and capacities of the Sephardic Jews, as well as of other foreign elements, to rebuild a land laid waste by war and foreign intervention.32 Jews in Transylvania, as in much of Europe, were subject to additional taxes and to an extraordinary range of legal disabilities until as late as the middle of the nineteenth century.33 This reflected, in part, economic opportunism on the part of cash-strapped governments and their realisation that Jews were uniquely vulnerable to such exploitation. In effect, Jews were taxed simply for being Jews. In Transylvania and Hungary, now subject to Habsburg rule, these taxes took the

30 See generally, Peter Sugar, ‘The Principality of Transylvania’ in Peter Sugar et al (eds), A History of Hungary (Bloomington, Indiana University Press, 1994). 31 Moshe Carmilly-Weinberger, A zsidóság története Erdélyben (1623–1944) (Budapest, MTA Judaisztikai Kutatócsoport, 1995) 33. 32 For the text of the decree (in Hungarian) see ibid 63–6. 33 For an overview, see eg Johnson, n 4 above, Part Five. Not infrequently, the authorities of states that had enacted Jewish emancipation laws chose to disregard them, allowing discrimination to continue in economic affairs and in the public sector. This prompted increasing numbers of Jews to convert to Christianity as the only sure means of social and professional advancement: ibid 312–13.

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form of a toleration tax from the middle of the eighteenth century.34 Special taxes had been levied on Transylvania’s Jews since the Middle Ages.35 In addition to bearing a heavier tax burden than their Christian peers, Transylvania’s Jews had to contend with far-reaching restrictions on their freedom of residence. Until the final decade of the eighteenth century, Habsburg authorities only permitted Transylvania’s Jews to settle in 170 villages and in 20 of the smaller towns, aside from a 150-strong community in Gyulafehérvár.36 The right of Jews to settle virtually anywhere (the royal mining towns remained off-limits) was not granted until a royal decree issued in 1790.37 However, as recently as a decade earlier, Habsburg monarchs had actively supported plans to confine all of Transylvania’s Jews to Gyulafehérvár and to expel any Jews who had not been resident in the former Principality for at least 30 years.38 In April 1780, Transylvania’s governor had warned Vienna that the number of Jews was increasing at an alarming rate and stood at 221 families.39 As a result of heavy taxes and other measures, most of the region’s Jews had been reduced to poverty, owning no more than a single horse or cow. Anti-Semitism in Transylvania, as in Austria-Hungary and Romania more generally, retained a strong religious component, albeit infused with secular elements.40 In particular, the myth of Jewish ritual murder, which had its origins in the religious Jew-hatred of the medieval era, continued to be widely accepted across much of Central and Eastern Europe as late as the final decades of the nineteenth century. More surprisingly, perhaps, such sentiments were not confined to ignorant, semi-literate peasants living in remote hamlets or villages but extended to lawyers and highly-educated public officials.41 Time and again, Jews in both Transylvania and Hungary were put on trial, accused of the ritual sacrifice of Christian children.42 For example, in February 1791, the body of a 13-year-old Christian boy was found in the Transylvanian village of Szilágypere.43 Rumours began to circulate that the boy had been killed by local Jews as part of a religious rite. Following a criminal trial held in the town of Zilah (Zala˘u in Romanian), four Jews were sentenced to death; they were only acquitted following a lengthy appeal.44

34

Carmilly-Weinberger, n 31 above, at 137–41. Ibid 134–41. 36 Ibid 143. 37 Barna Mezey et al, Magyar Alkotmány Történet (4th rev edn, Budapest, Osiris Kiadó, 2002) 191. 38 Carmilly-Weinberger, n 31 above, at 114–18. 39 Ibid 114. 40 On anti-Semitism and the Austrian Catholic Church, in the latter decades of the nineteenth century, see Pulzer, n 27 above, at 156–63. 41 On the medieval roots of the blood-libel against Jews, see Johnson, n 4 above, at 208–11. 42 From 1867 until the First World War, Hungary exercised self-government within the framework of the Austro-Hungarian Empire and was entrusted with administrative control over Transylvania. 43 Carmilly-Weinberger, n 31 above, at 122. 44 Ibid 123. 35

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In 1882, in the eastern Hungarian village of Tiszaeszlár, the disappearance of a 14-year-old Catholic girl provoked accusations that she had been ritually murdered by Jews. Fifteen Jews were charged with her murder and put on trial. The sole evidence put forward by the prosecution was the testimony of a five-year-old boy, the son of one of the accused, who was isolated from his family by the authorities, intimidated and physically abused.45 The eventual acquittal of the accused, who had been tortured in order to elicit confessions, provoked several days of rioting by anti-Semitic crowds in Budapest.46 In August 1901, in certain villages in Transylvania, rumours circulated once more that Jews had been responsible for the ritual murder of a local Christian girl. Endre Ady, one of Hungary’s greatest poets, responded by denouncing the ‘feudal’ climate that allowed such superstitious nonsense to flourish. Ady, who was then working as a journalist in the city of Nagyvárad (‘Oradea’ in Romanian), heaped scorn on the country’s practice of blaming Jews for society’s ills: ‘If there’s trouble, here are the Jews. Hunger, poverty, all our sins, let’s make ourselves feel better by blaming it all on the Jews’.47 If The Merchant of Venice had been written at a time when anti-Jewish feeling was almost universal in Europe, by the latter years of the nineteenth century anti-Semitism provoked fierce intellectual and political debate, even in such comparative European backwaters as Transylvania and Hungary. The principal defence counsel at the Tiszaeszlár trial, Károly Eötvös, was one of Hungary’s most prominent liberal politicians and a member of its House of Representatives. As noted above, the rumours of ritual murder in Transylvania, less than 20 years later, provoked the fiery intervention of the radical poet and journalist, Endre Ady. At the close of the ‘long’ nineteenth century, anti-Semitism remained a powerful social and political tool. Transformed in the inter-war era into a central doctrine of Germany’s Nazis and of fascist movements across continental Europe, it was responsible for unprecedented crimes against Europe’s Jews in the Second World War. Increasingly, anti-Semitism came to be identified with conservative and reactionary voices as well as fascist and Nazi ideologies that were informed by pseudo-scientific racial theories. Peter Pulzer rightly dismisses such theories as ‘anti-science … drawing with bewildering eclecticism on biology, anthropology, theology and psychology to construct a theory of “race”’.48 By contrast, those professing liberal, socialist, revolutionary or communist beliefs, ranging from Eötvos to Ady, no longer countenanced anti-Semitism, at least publicly.

45

Raphael Patai, The Jews of Hungary (Detroit, Wayne State University Press, 1996) 349–50. Ibid 350, 353. 47 The article, which first appeared in the Nagyváradi Napló, is reproduced in Endre Ady, A Fekete Lobogó (Budapest, Szépirodalmi Könyvkiadó, 1952) 131, 132. 48 Pulzer, n 27 above, at 286. 46

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Law, Anti-Semitism and the Holocaust in Transylvania, 1918–45 The twentieth century witnessed a sharp escalation of anti-Semitism in the countries of Central and Eastern Europe. Economic depression and dislocation in the inter-war era, a widespread perception that liberal democracy had failed and could not offer a comprehensive solution to the deep-seated socio-economic problems and crisis of identity enveloping these societies, as well as the association of Jews, particularly in East Central and Eastern Europe, with emerging and alien capitalist structures, created fertile conditions for the rapid growth of anti-Semitism, as described by Peter Pulzer:49 further east still [beyond Austria], where social immobility was even greater and the terms ‘bourgeois’ and ‘Jew’ for a long time almost synonymous, manufacturers as well as bankers were overwhelmingly Jewish. Where, therefore, the growth of capitalism was a process with which the majority of the population could not identify itself and where it failed thoroughly to stir the class pot, those feelings of pessimistic anger and pseudo-revolutionary conservatism, which . . . are to be associated with anti-Semitism, were bound to assert themselves. Where the financial-capitalist community was not only easily identifiable but already burdened with centuries of religious hatred, all prerequisite factors [for the growth of anti-Semitism] were present.

According to the distinguished sociologist, István Bibó, a minister in Imre Nagy’s ill-fated Hungarian government in 1956, anti-Semitism, allied to a potent and characteristically Central European strain of anti-democratic nationalism, was the common denominator able to unite all classes and interest groups in Central and Eastern Europe:50 Pour tous les individus, groupes et classes, des grandes propriétaires terriens aux petits bourgeois, des officiers aux professeurs d’histoire . . . un système antidémocratique et antisémite apparaissait comme une explication lumineuse à tous les problèmes qui se posaient, et aussi comme leur solution naturelle. [For all individuals, groups and classes, from the owners of great estates to the petits bourgeois, from officers to history teachers…an anti-democratic and anti-Semitic belief system represented an illuminating explanation to all the problems that presented themselves, and also as their natural solution. (trans)]

If Jews had been convenient ‘scapegoats’ in renaissance Europe ‘when wars went wrong or when food shortages pushed prices sky-high’, as Sir John Hale asserts,

49 Ibid. On the fragility of liberal democratic ideology in Europe during the inter-war era and in the Second World War, see Mark Mazower, Dark Continent: Europe’s Twentieth Century (London, Penguin Books, 1999). 50 István Bibó, Misère des petits États de l’Europe de l’Est (G Kassai (trans), Paris, Albin Michel, 1993) 297.

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much the same remained true almost four centuries later.51 However, in place of the preachers who had ‘called for vengeance upon the crucifiers’ in the sixteenth century, anti-Semitism now assumed a predominantly secular guise, albeit infused with religious elements. In accordance with these secular anti-Semitic narratives, Jews were variously perceived as a threat to the economic, social, cultural or moral wellbeing of society, or as a biological danger to the ‘racial health’ of the nation. Christian clerics, as the self-appointed custodians of society’s moral and spiritual values, were frequently in the vanguard of ‘modern’ anti-Semitic movements and campaigns, whether in Vichy France, Slovakia, Croatia or, to a more limited extent, Hungary. For example, in April 1939, Hungary’s Upper House, which included several leading members of Hungary’s Christian denominations, debated the proposed Second Jewish Law whose subsequent adoption led, inter alia, to the ousting of 60,000 Jewish salaried workers, professionals and unskilled personnel from their jobs and the destitution of their families. Speaking in the Upper House, the head of Hungary’s Catholic Church, Cardinal Jusztinian Serédi, stated that the measures contemplated by the Bill were no more than ‘legitimate national self-defence’.52 The Cardinal went on to accuse a section of Hungary’s Jews of corrupting Hungarian society and mores:53 in literature, in poetry, in the theatre, in cinema, in music and in painting [they] cast doubt on, or discredited, practically everything which is holy to Christians, including God, the saints, religious faith, the Church, marriage, the family.

Cardinal Serédi also charged a segment of Hungary’s Jews with attempting to destroy ‘Christian values’ in the economic life of the country.54 The Cardinal declined to elaborate on this elusive spiritual phenomenon which, in any event, was strikingly at odds with the stark economic realities of Hungarian society stripped of its Jewish influences. Jews, who undoubtedly played an important role in the industrialisation and economic modernisation of Hungary, had not been responsible for the semi-feudal economic structures that obtained in rural areas until as late as the end of the nineteenth century and which were characterised not by ‘Christian values’ of any recognisable kind, but by the ruthless exploitation and oppression of the impoverished rural masses by a tiny, privileged elite.55 Bishop László Ravasz of the Reformed Church also expressed his support for the proposed Second Jewish Law during the debate in Hungary’s Upper House. Bishop Ravasz lamented the fact that, ‘it is not the Jews who have assimilated to

51

Hale, n 12 above, at 168. Quoted in István Pogány, Righting Wrongs in Eastern Europe (Manchester, Manchester University Press, 1997) 86. 53 Ibid. 54 Ibid. 55 László Kontler, A History of Hungary (Basingstoke, Palgrave Macmillan, 2002) 304–6. 52

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the Hungarian spirit, but rather the Hungarian spirit which has assimilated to the Jews’.56 The Bishop characterised the Jewish spirit as ‘decadent’ and ‘degenerate’.57 Following the Second Vienna Award, brokered by Hitler in August 1940, Romania was forced to cede northern and eastern Transylvania to Hungary. The territories transferred to Hungary, pursuant to the Award, amounted to well over 43,000 square kilometres with a total population of two and a half million people.58 According to a census, conducted in 1941, there were 153,333 Jews living in areas of Transylvania now governed by Hungary.59 In addition, 40,000 Jews were resident in southern Transylvania, which remained subject to Romanian jurisdiction.60 As a result of the Second Vienna Award, the great majority of Transylvania‘s Jews, concentrated in northern and eastern Transylvania, were now subject to the anti-Jewish laws that were already in force in Hungary. These included the so-called Second Jewish Law, referred to above, which entered into force in May 1939.61 The Second Jewish Law, or ‘Law on the Restriction of the Expansion of the Jews in Public Life and Economic Affairs’, imposed far-reaching restrictions on the participation of Jews in the professional, economic, political, educational and cultural life of the country. For example, Jews were permitted to occupy no more than 6 per cent of places at universities and colleges, while they were excluded altogether from certain areas of professional activity concerned with the cultural or intellectual life of the country.62 As a direct result of the Second Jewish Law, no Jew could be the editor or publisher of a newspaper or journal. Similarly, no Jew could be the director of a theatre or of any commercial company engaged in making, distributing or selling films.63 Further and severe restrictions were imposed on Jews employed in the professions or as white collar workers, while

56

Quoted in Pogány, n 52 above, at 86. Ibid. 58 Joseph Rothschild, East Central Europe between the Two World Wars (Seattle, University of Washington Press, 1977) 183. 59 Gábor Barta et al, Erdély rövid története (2nd edn, Budapest, Akadémiai Kiadó, 1993) 600. According to another estimate, there were 165,000 Jews living in Hungaran-administeed Transylvania. Carmilly-Weinberger, n 31 above, at 289. 60 Anti-Semitic persecution in areas of Transylvania that remained under Romanian control, as in other parts of Romania, was generally less thorough and relentless than in territories governed by Hungary. As a result, a significantly larger proportion of Jews survived the war in Romania than in Hungary or in areas of Transylvania governed by Hungary during the Second World War. See generally, on the treatment of Jews in wartime Romania, Radu Ioanid, The Holocaust in Romania (Chicago, Ivan R Dee, 2000). However, it should not be forgotten that ‘The Holocaust in Romania culminated in a series of devastatingly cruel deportations carried out under murderous conditions’. Ibid 35. Deportations of Romanian Jews were focused on certain parts of Romania, including southern Transylvania. Ibid. 61 For the text of the statute see Ezer Év Törvényei, available at www.1000ev.hu/ index.php?a=3¶m=8098 62 For the limits placed on Jewish access to higher education by the Second Jewish Law see 1939: IV t-c, s 7. 63 Ibid ss 10, 11. 57

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Jews were barred outright from seeking employment in much of the public sector, including the civil service, local government and the judiciary.64 The Second Jewish Law not only reflected the belief that Jews occupied an unduly privileged place in the Hungarian economy but, more importantly, the conviction that their values and ways of thinking were alien and harmful to society at large, hence the provisions excluding Jews from leading positions in the theatre, newspapers, etc. As such, the Second Jewish Law, along with statements by its ecclesiastic cheerleaders in the Upper House, reflect views that are diametrically opposed to the humanistic sentiments expressed by Shylock in Act 3 scene I: I am a Jew. Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? Fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die?

If Hungary’s Second Jewish Law reflected a belief in the intrinsic differences between Jews and Gentiles, Shakespeare’s Shylock asserts the overriding communalities of the human condition. In addition to the exclusion of Jews from certain sectors of employment, in accordance with the Second Jewish Law, able-bodied Jewish males in northern and eastern Transylvania, as in other parts of Hungary, were liable for service in auxiliary labour batallions attached to Hungary’s armed forces.65 The legal basis for the creation of these batallions was provided by an Act on National Defence, adopted in 1939.66 Section 230 of the Act stipulated that men aged over 21, deemed unsuitable for military service, should undertake work in the public interest. The maximum age for Jews serving in such labour battalions was gradually increased from 25 to 60.67 In all, some 130,000 Jewish males served in these battalions of whom up to 40,000 perished.68 Many of the Jews conscripted into the Hungarian labour batallions, including Jews from Transylvania, suffered or died because of the sadism or indifference of their guards, although other Jewish conscripts were treated comparatively humanely. Fourteen Jewish men in Labour Battalion No 101/5 died as a result of inadequate food, lack of shelter and constant beatings.69 Men serving in some of these battalions were worked from dawn till dusk and fed on nothing but unsweetened black tea and contaminated flour. German officers reportedly

64

Ibid ss 4, 5, 9, 17. On Jews serving in Hungary’s auxiliary labour battalions, see eg Raul Hilberg, The Destruction of the European Jews (rev edn, New York, Holmes and Meier, 1985) vol II, 808–11. 66 For the text of this statute, see www.1000ev.hu/index.php?a=3¶m=8096 67 Hilberg, n 65 above, vol II, at 808. 68 Ibid. 69 László Karsai, Holokauszt (Budapest, Pannonica Kiadó, 2001) 222. 65

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warned the Hungarians in charge of some of the battalions that they had to choose between beating the Jews and working with them.70 Conditions in other auxiliary labour battalions were reasonable by comparison. An elderly Jewish survivor of one such battalion, who still lives in the northern Transylvanian village where he was born, recalls that the 300 Jews he served with were not physically mistreated by their guards, although several of the guards stole what they could from the Jews: ‘some [of the guards] were decent, others were robbers, pure robbers!’71 For the most part, the men in his labour battalion were fed adequately: ‘the food was good, it was OK. We didn’t go without or experience hunger, no, no. We were fed three times a day: in the morning, at mid-day and in the evening. And there was enough bread’.72 The men were not issued with uniforms, although they were supplied with civilian clothes from time to time. For the most part, the battalion was employed digging anti-tank ditches to impede the advance of the Soviet forces. By the spring of 1944, service in an auxiliary labour battalion offered protection from deportation to Auschwitz-Birkenau or to other death camps. Jews in Transylvania were amongst the first Jews to be rounded up by the Hungarian authorities and to be deported to these camps, in accordance with a plan drawn up by Adolf Eichmann. By 7 June 1944, almost 290,000 Jews had been deported from Transylvania and from other territories annexed by Hungary during the War.73 According to conservative estimates, of the 110,000 to 130,000 Jews deported from Hungarian-controlled Transylvania, between 90,000 and 100,000 died in the Nazi camps.74 By comparison with the genocide of Transylvania’s Jews, in which the Hungarian administration and gendarmes collaborated with Eichmann and his associates, the casual, mocking anti-Semitism displayed by some of the characters in The Merchant of Venice appears mild, almost innocuous. In The Merchant, Venetian society aspires to convert Jews, to turn them into Christians. By contrast, in those parts of Europe controlled by the Nazis and their allies, including northern and eastern Transylvania, even devout Christians ‘tainted’ by Jewish blood were earmarked for extermination, along with Jews who had stayed loyal to their faith.75

70

Ibid. Interview conducted in Hungarian with former member of a Hungarian auxiliary labour battalion (Maramures¸, Romania, March 2007). In accordance with his wishes, neither the name of the interviewee nor the village in which he lives are given. The interviewee provided the author with documentary evidence confirming his service in an auxiliary labour battalion during the war. 72 Ibid. 73 LS Davidowicz, The War against the Jews 1933–45 (10th edn, London, Penguin Books, 1990) 455–6. 74 Barta et al, n 59 above, at 600. 75 The rigid, racially-grounded anti-Semitism of the Nazis and their allies was to lead to friction with the Christian Churches. In Hungary, for example, while the Churches warmly supported the First and Second Jewish Laws, they expressed their opposition to the Third Jewish Law, enacted in 1940, which proscribed marriages between Christians and Jews who had converted to Christianity. As 71

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THE MERCHANT OF VENICE: SHYLOCK IN TRANSYLVANIA In The Genius of Shakespeare, Jonathan Bate asserts that: ‘The Merchant of Venice has remained one of the most popular plays in the repertoire, a maker of reputations for actors such as Charles Macklin in the eighteenth century and Edmund Kean in the nineteenth’.76 While this may be true of the British theatrical repertoire and of the repertoire in some other countries, it scarcely applies to the theatre in Central and Eastern Europe (CEE). In many CEE countries, performances of The Merchant of Venice are far from commonplace. Although Bate does not address this point, it is clear that the theatre in Britain, as in other countries that were not directly touched by the Holocaust or by extreme currents of anti-Semitism, has felt free to mount productions of The Merchant of Venice and to experiment with new and innovative interpretations of this potentially difficult play. However, in areas of Europe, particularly Central and Eastern Europe, where anti-Semitism was virulent and legitimised by law, The Merchant of Venice has been shunned during much of the post-war era. This has been true, in particular, of societies in which cultural life was shaped by the dictates of communist ideology during much of the latter half of the twentieth century. Fears of appealing to latent anti-Semitism, which has remained deep-seated in much of Central and Eastern Europe even after the Second World War, together with communist insistence on class rather than ethnicity or religion as the key to understanding the horrors of Nazism, resulted in the widespread neglect of a play that is notable for its uncomfortable mix of romance and racism.77 For the most part authorities in CEE societies, which had emerged from the Second World War with much to forget concerning their collaboration in, or indifference to, the genocide of the Jews, discouraged productions of The Merchant of Venice; a play that on one, possibly simplistic, reading depicts Jews as materialistic, mean and vengeful.78 The Merchant, with its focus on Jews and anti-Semitism, was ideologically troubling for the region’s post-1945 communist rulers, who were determined to erase all public memory of the Holocaust. Consequently, The Merchant Bishop László Ravasz of the Reformed Church put it, during consideration of the draft law: ‘There is no more infernal thought than that a person whose parents have converted from the Jewish religion, or who has one parent who has converted from the Jewish religion, and who has been brought up in the Christian Church and has become completely Christian and Hungarian, should be forced back there, from whence he converted’. Quoted in Pogány, n 52 above, at 89. 76 Bate, n 23 above, at 127. 77 On the continuing failure of former communist states to interrogate their pre-communist pasts, see Tony Judt, Postwar: a History of Europe since 1945 (London, William Heinemann, 2005) 821–6. 78 Shortly after the Second World War, the Hungarian sociologist, István Bibó, wrote a remarkably bold and clear-sighted essay on the forms and extent of Hungarian complicity in the genocide of the country’s Jews, ‘The Jewish Question in Hungary after 1944’. Regrettably, the essay does not appear to have been translated into English, although it is available in French. Bibó, n 50 above, at 203.

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of Venice was deliberately sidelined, while a host of other plays by Shakespeare, including comedies, histories and tragedies, continued to be performed on a regular basis. Allocated to Romania in the peace settlement following the First World War, Transylvania contains a large ethnic Hungarian minority that is served by Hungarian-language theatres in towns and cities including Cluj-Napoca, Oradea, Tîrgu-Mures¸, Satu-Mare and Sfîntu-Gheorghe.79 Productions of many of Shakespeare’s plays, as well as works by other major foreign dramatists, including Shaw, Ibsen, Gogol, Chekhov, Racine and Molière, were mounted by these theatres during almost half a century of communist rule.80 However, The Merchant of Venice was not performed at all during this period. Unlike King Lear, Hamlet, Othello, Macbeth, A Winter’s Tale, The Merry Wives of Windsor, A Midsummer Night’s Dream and other plays by Shakespeare, The Merchant of Venice does not feature amongst the works that were mounted by the Hungarian theatres in Transylvania.81 The Merchant was excised from the theatrical repertoire because, as suggested above, it raised uncomfortable memories in a society that was complicit in the Holocaust and that was governed after the war by communist regimes intent on reshaping historical memory in accordance with their own ideological precepts. As the historian, Tony Judt, points out: ‘It is not that the horrors and crimes of the war in the east were played down [by communist rulers]—on the contrary, they were repeatedly rehearsed in official rhetoric and enshrined in memorials and textbooks everywhere. It is just that Jews were not part of the story’.82 Jews, having been physically eliminated from most of the CEE region as a result of the Holocaust and of post-war emigration by most of the survivors, were now also subject to cultural and intellectual excision as well. During the communist era, Jewish themes were generally discouraged, whether in the theatre or in the academy, rendering The Merchant of Venice anathema.83 For the most part, the region’s remaining Jews were encouraged to assimilate, a process that was

79 On the Hungarian minority in Transylvanian Romania, see eg, George Schöpflin, Nations, Identity, Power (London, Hurst and Company, 2002) 412–14. 80 A record of the plays mounted by the Hungarian-language theatres in Transylvania, from the late autumn of 1944 until the early 1990s, is available in Lajos Kántor and József Köto″, Magyar Szinház Erdélyben 1919–1992 (Bucharest, Editura INTEGRAL, 1998) 118–201. These Hungarian-language theatres also functioned during the period 1940–44, when Hungary reoccupied northern and eastern Transylvania. 81 For example, in Cluj, a lively university city and the undisputed cultural and intellectual capital of Transylvania, there were performances of The Taming of the Shrew at the city’s State Hungarian Theatre on 22 April 1946 and on 3 March 1965; of Richard III on 2 April 1949; of Romeo and Juliet on 10 March 1951 and 27 May 1967; of Othello on 30 March 1958; of A Winter’s Tale on 12 December 1969; of King John on 4 March 1977; of Much Ado About Nothing on 28 November 1979; and of Hamlet on 23 February 1987. Kántor and Köto″, n 80 above, at 118–41. 82 Judt, n 77 above, at 822. 83 See generally, on the Jewish experience in communist states in the post-war era, Bernard Wasserstein, Vanishing Diaspora (London, Penguin Books, 1997) ch 9.

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welcomed by many Jews themselves because it seemed to offer the best or only prospect of a life free from anti-Semitism. The tenacity of anti-Semitic sentiment in the CEE region, even after the Holocaust, was also a factor in the reluctance of communist authorities to sanction performances of The Merchant of Venice, as suggested above. The play was not performed in the Hungarian-language theatres of Transylvania and rarely mounted elsewhere in the CEE area because the anti-Semitic stereotypes it contains had not lost their currency. It could not be assumed that audiences would find the well-worn anti-Semitic clichés in The Merchant uncomfortable or embarrassing. There was a very real danger that, far from sympathising with Shylock and his plight, many in the audience might see the play as a vindication of their anti-Semitic prejudices. The factors that resulted in the neglect of The Merchant of Venice by theatres in Central and Eastern Europe also shaped literary scholarship in the CEE region, particularly during the communist years. In the mid-1960s, Methuen and Co published an English-language text, Shakespeare our Contemporary, by a leading Polish scholar, Jan Kott. In the Preface, Peter Brook, the English theatre director, describes Kott as ‘quick-witted and combative’. However, Kott’s combativeness apparently functioned within orthodox limits. His book simply ignores The Merchant of Venice with its deeply uncomfortable themes of racism and Jewhatred. While Kott discusses many of Shakespeare’s plays at length there is only a fleeting reference to The Merchant.84 Even Kott’s tiny comment on The Merchant is confined to the ‘safe’ topic of eroticism, scarcely a central strand in the play. This is surprising and not a little disappointing in view of the obvious relevance of The Merchant to the tragic course of Polish-Jewish history. Up to three million Polish Jews were killed in the Holocaust, while anti-Semitism had been pronounced in pre-war Poland.85 Only a couple of years after Kott’s book was published, a fresh outburst of state-sanctioned anti-Semitism led to the enforced emigration of over 20,000 Polish Jews, many of whom had been hounded from their jobs.86

CONCLUSIONS The themes raised by The Merchant of Venice remain extraordinarily relevant in our own times. It has become clear that public knowledge of the Holocaust has failed to dispel entrenched anti-Semitic beliefs and stereotypes, even in the 84 Jan Kott, Shakespeare, Our Contemporary (B Taborski (trans), London, Methuen and Co Ltd, 1967) 196. 85 Davidowicz, n 73 above, at 472–4. 86 Jonathan Kaufman, A Hole in the Heart of the World (Harmondsworth, Penguin Books, 1998) 189–90.

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United Kingdom. According to recent studies, anti-Semitism is actually on the increase.87 Other examples of racism or religious chauvinism, such as anti-Roma prejudice in Central and Eastern Europe or anti-Shia sentiment in parts of the Islamic world, also remain deeply entrenched.88 The Merchant’s generous, humanistic vision, one strand in a complex and ambiguous play, remains an important moral counterweight to racist and chauvinistic ways of thinking. For lawyers, the ongoing challenge must be to ensure that enlightenment ideals of non-discrimination, pluralism and inclusion continue to inform our laws and the conduct of both public and private institutions. Shylock’s famous lament: ‘Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions?’ could just as meaningfully have been uttered by a member of the Roma minority in Slovakia, by a Dalit in India, a Shia in Saudi Arabia, by a Zoroastrian in Iran or by a Catholic in parts of Northern Ireland.

87 Report of the All-Party Parliamentary Inquiry into Anti-Semitism (September 2006), available at http://thepcaa.org/Report.pdf 88 On the plight of the Roma of the CEE states, see I Pogány, The Roma Café: Human Rights and the Plight of the Romani People (London, Pluto, 2004). On anti-Shia sentiment in parts of the Islamic world, including Pakistan and Saudi Arabia, see Minority Rights Group International, State of the World’s Minorities 2007 (London, Minority Rights Group International, 2007) 85, 114.

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17 Shylock as a Politician ANTON SCHÜTZ

‘ALETHURGY’ – ARTS OF HANDLING THE TRUTH HEN, IN SOPHOCLES, Oidipous exposes the old shepherd, the person who had saved his life as a newborn, to a relentless interrogation, the chorus, Teiresias the seer, the messenger from Corinth, Jokasta herself, all warn Oidipous of the dire consequences his inquiry is bound to give rise to. In vain, since Oidipous wants to know, he wants and craves the truth, and nothing, or more adamantly still, no one, will stop him. Not accidentally is he called ‘Oidipous tyrannos’, a syntagma of proper name and improper title, which must or might have been connected to a second interpretation, highly fraught with meaning, and according to which Sophocles’ title, instead of remaining untranslated, should read, in English, something like ‘Swollen-foot, the ruler by chance’. The Shepherd, on the contrary, is besieged by truth, exposed to truth’s inhuman threat, he must defend himself against truth, is aware of ‘more than enough’ truth, and in consequence would, in Herman Melville’s perfectly fitting words, ‘prefer not to’ answer his lord’s questions. When Michel Foucault analysed Sophocles’s Oidipous tyrannos in the first lecture of his yet unpublished 1979/80 lectures at the Collège de France, he looked specifically, both at subjection and assujettissement in the Shepherd’s preference for notknowing, and at subjectivity, in its classic-Athenian design, in Oidipous’s own exercise of unconditionality in matters of knowing and therefore extorting the truth, an exercise of unconditionality that is, as Foucault was to explain later, paradigmatic for the classic-Athenian idealisation of activeness in matters of social relationships. Foucault’s analysis takes truth to be a question of society, company, communication, of the government of oneself and others; people are working on truth, or with truth, or in the medium of truth. Thereby, truth becomes a medium of distribution of activeness and passivity, a matter of constant social reference, and indeed the central prop of the constant actual construction of the self, not part of

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the subject’s internal equipment but effective stake of the care for others and oneself. This truth as a matter of active handling was introduced by Foucault under the term of alethourgia, an expression of exquisite rarity, not, however, one that is absent from the post-classical vocabulary (it is used, though equally sporadically, both in Alexandrine philology and, much later still, in the Greek fathers—Foucault’s source). The relentless knowledge-hunter Oidipous embodies what Foucault calls the alethurgy of the master; the Shepherd embodies, as a refugee of knowledge, the alethurgy of the slave. Oidipous’s unflinchingly pursued endeavour of inviting, exploring, obtaining, revealing, confronting, embracing truth, is in contrast to the Shepherd’s entry into truth which stands under the sign of reluctance, pressure, duress and torture. With Oidipous, we find a will to actualise or ‘spend’ truth, an act of making it happen, directly, actively, offensively and no matter the price. Even when Oidipous blinds and exiles himself as a consequence of the truth he has found out, the possibility of repenting for having chosen to discover the fateful truth and thus to enable its destructive prise-depouvoir to unfold, will not even occur to him. With the Shepherd, we find, on the contrary, a passive, defensive, ‘preventive’ act of truth; truth as a matter of permanent suspension and latency, conservation and reserve, as a potentiality that prefers to remain unactualised and needs to be forced, extorted, in order to manifest itself. Oidipous’s truth requires discovery, self-exposure, courage. The Shepherd’s is related to awe and distance, fate, oppression and self-protection. An attempt to transport this classic-Athenian pattern of reading to Hellenistic and Roman times,1 let alone to our own, hits an immense rock, or rather a mostly-covered iceberg. Shakespeare features, in spite of the most extensive detective inquiries, few Sophoclean fingerprints, a fact that should put a question mark on the very common notion of a (single) continuous history of European theatre, where all we find is a sequence of discontinuous campaigns, or life-cycles, each closed upon itself and of limited extension and duration. There is, of course, one factor that brings Sophocles, Shakespeare and some further authors, increasingly closer to each other, namely us. The common feature is their common lack of precisely that sense that enables us to invest so much interest in them: the absence of ‘historical consciousness’ that would have enabled them to ask a question of the sort that we ask (about them!). They encountered no equivalent of the pressure we feel upon us to prove the well-founded, rather than purely dogmatic, character of our own constructions. And yet, we cannot avoid, we even have, it seems, no ambition to avoid, our own dogmatism, which commands us to cast the one identical gaze that we are capable of, into every conceivable historical subdivision that has managed to deposit a documentary trace in our archives. No less than any other generation, we are the prisoners or perhaps the

1 Foucault’s subsequent years of Lectures at the Collège de France would explore this evolution, alongside vols II (The Use of Pleasure), III (The Care of the Self) and IV (unfinished, not published) of his History of Sexuality.

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citizens of our own categories, only this is a fact that had been flatly unproblematic (even invisible) to previous generations, while to us it is highly problematic. So where, if not amongst ourselves, should we look for authorisation and confirmation of our inquiries? As Stanley Fish (and everyone else) knows, the texts themselves will agree with whatever the interpretive community agrees with. I shall ask with Foucault, obey Melville’s injunction to ‘follow your master’, and apply to Shakespeare’s Shylock, an oppressed and humiliated slave like the Theban Shepherd, but also a steadfast, intractable tyrant like King Oidipous, the categories of the two separate and diametrically opposed approaches to truth, master’s and slave’s alethourgia. There are, roughly speaking, two ways to understand Shylock and his fate. Either he entertains, like the Shepherd, a relationship to truth based on perennial suspension and unactualised potentiality. Should not his name indicate such ‘shyness’?2 Or Shylock is a fully acted-out test case of the institutional system, and deserves the same transferential supposition or credit which Freud had placed in Oedipus alone.

SHAKESPEARE’S VENICE: THE INCONSISTENT TOTALITY OF THE MODERN CITY Difficult to deny is the distance in depth of focus that separates the autochthonous Venetians, each of whom comes complete with a rich ‘personality’, and the Jew, two-dimensional like a figure in a wood-cut, with little personal, rather than ‘Jewish’, features, the most decisive being the fact that Shylock is someone who is not prepared to change religion unless and until he is unambiguously invited to. From this viewpoint, the comparison of Shylock, via the Venice reference, with a commedia dell’ arte character, Pantaloon (a popular exercise amongst Shakespeare

2 Shylock’s is the only English name in the list of characters. Tubal is not an Italian name—and that, too, is not accidental. But in Shylock there is a ‘Sh’, a ‘y’ and a ‘ck’ (or, in the First Folio, ‘cke’), all of which have in English full standing as instances of the common phonetic currency, while they are obviously unknown to Italians (obviously enough to exclude any relevant doubt even in the ears of a public bathing in English monolinguism). Apart from ‘shy’ and ‘lock’ and their meanings, the name Shylock has, as Dietrich Schwanitz reminds us in Shylock: Von Shakespeare bis zum Nürnberger Prozeß (Hamburg, Krämer, 1989) 20, also a potential biblical (Noachide) genealogy. Salah, Shalah, or Shelah is, according to Genesis 10:24 and 11:12–13, the oldest son of Sem’s third son Arphaxad or Arphakhsad (thus a Semite in the strictest sense) who, in addition, is also part of the patriarchal chain, being Abraham’s great-great-great-great-grandfather, according to Genesis 11:14—27. In addition, ‘Shylock’ has been accorded various later echoes, conscious or not, some of which go undetected, such as Sherlock, first name of Conan Doyle’s detective. Another Sherlock figures as the author of The Case of the Allegiance due to Soveraign Powers (1691), on whom see G Straka, ‘The Final Phase of Divine Right Theorie in England’ (1962) 77 English Historical Review 642. Schigolch is a character in early twentieth century German playwright Frank Wedekind’s comedies Erdgeist and Die Büchse der Pandora, as well as in Alban Berg’s Opera Lulu.

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scholars)3 makes sense: it draws our attention to the fact that one does not find the corresponding commedia dell’ arte characters for Antonio, Bassanio, Portia, Lorenzo and Nerissa, for example. They do not make it to tragic depth—this is a comedy, after all—but this means that Shylock can, even less, grow tragic. He is not meant to. He is intended as a dramatic enabling device, whose role is over with Act 4 and who is endowed with the appropriate, limited amount of ‘Eigenleben’ or personal complexity. Yet the key difference between the Venetians and the Athenian, it seems to me, is located in the dissociation between power and truth. Let me quickly introduce a third and fourth example. In Molière’s Don Juan, in Mozart’s and da Ponte’s version, too, we find an equivalent of Oidipous, a hero/villain who wanders down his road until its end, which will be his end as well, for he will encounter a will equivalent and a power superior to his own. What do we find in Shakespeare’s Venice? A precarious collective power, in fact a vacancy of power scantily disguised by the image of a lively, hyperactive civil society brimming with communication and commerce, attraction and aversion, decision and adventure, intrigue and guile. Its effective population by no means corresponds to the representative image the Republic tends to give of itself on the ceremonial level, boasting its magnificoes (cf stage direction, Act 4 scene 1) and signors, or members of the Venice Signoria (referred to, as metaphor for Antonio’s ships, by Salarino (1.1.10)). It is splendidly reigned over, more than efficiently governed, by the majestic, but all-powerless Doge, holder of a merely nominal dignity and under whose authority a usurper of judicial power, the cross-dressed Portia, is allowed to ask the question that can be understood as the mystical foundation of Venetian or perhaps Western law, ‘Who is the merchant, and who is the Jew?’, and rules accordingly. From this pseudo-unity of a supposedly structural, yet in fact largely celebratory institutional setting, Shakespeare is careful to distinguish the moving parts of the place, as so many partes extra partes or elements without totality. Solanio, Salarino, Graziano and Lorenzo, ‘gentlemen of Venice’, Bassanio, an ‘Italian lord’,4 count as the latter. By dint of this Y-shaped structure, of the one Venice dividing into two, Shakespeare’s Venice is an excellent illustration of that inbuilt gradient which, according to Alain Badiou, sets apart situation and state of the situation, divides between all that is (or those who are) effectively present in a given situation, caught in it as its elements, and the fragment earmarked as the official image which the situation deigns to give of itself, as which it represents itself.5 The official self-representation of a socio-historical situation, either Venice or London or any other place, in 1597 or almost at any other moment, is established

3 See William Shakespeare, The Merchant of Venice, The New Cambridge Shakespeare (MM Mahood (ed), Cambridge, Cambridge University Press, 2003) Introduction, 1–65, at 12, with further literature. 4 As named in Q3, 1637. 5 Alain Badiou, Being and Event (New York, Continuum, 2005); (‘Meditation eight’; ‘appendix’).

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under the imperative of justifying the legitimate action of rightful government, and thus cannot rely on all elements of the situation lest it become ungovernable. No such gradient, no such divergence, is, on the other hand, compatible with the classical model of the Polis, according to which the Polis was exactly the name of the consistent totality in which you are either present (and, in this case, represented as well) or not. Shakespeare’s Venice is modern city-land, city-zone, not classical Polis. The tension of claimed consistency and effective inconsistency, of politics and oikonomia, of sincere declaring and mere adaptive coping, is in many ways characteristic of Shakespeare’s theatre, and especially in The Merchant of Venice. The action is entrusted, not to the visible clash of power-holding heroes, but to specimens of a crawling civil (or more or less so) society that occupies the city-space as a matter of course and effectively, without being announced or declared or without any other ado, a society that has for a long time categorised the Doge as a paper tiger, a rex inutilis, rather than the effective site of power, a status symbol rather than a state apparatus. These Venetian gentlemen are self-made, more accurately self-making men, they rely on each other in vital respects, they form a ‘cupola’. This is why, however tiring it might be to see this discovery celebrated at length in evening-spanning stage renderings, those directors who have discovered, in The Merchant, something in common with a mafia, controlling, on its own purely factual terms, what is happening in the streets of Venice, have doubtless got a point.

FEEDING THE COMMUNITY In The Merchant of Venice, what is at stake is not, as it is in Sophocles, on the one hand, an irresistible challenge that would rather turn against itself than renounce truth, and on the other hand, a weak but steady resistance to each degree of the revelation of truth. It is neither the political tyranny of truth, Oidipous’s ruthless rule, nor the self-interested submission under law, the Shepherd’s self-defence (this latter position being, in a sense, the one which R Rorty used to refer to, approvingly and affirmatively, as ‘coping’), but rather the ever-moving confrontation both between subjective positions and between regimes. The inconsistent common denominator that constitutes Venice as a place suspended, as are so many others, half-way between government and ungovernability, is based on the exclusion of the two relatively consistent or elegant solutions, political alethurgy or alethurgy of the master, and economic alethurgy or alethurgy of the slave. Shakespeare’s gentlemanly Venice belongs to both: it proudly declares its goals and principles; it constantly adapts, compromises, copes. Power is not visible at the centre or at the top of an ordered cosmos, it is unseen and everywhere in the beehive. Shakespeare’s Duke’s glory is borrowed from better days and his status essentially complimentary, a ‘has-been’—comparable in our world to Literature, Literary History, Legal History, Shakespeare Studies, Shakespeare staging, all

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increasingly underfunded in money and public attention and private curiosity, but depositories of a unique obsolescent historical glory, a glory without subjects. There is a history of decadence built into The Merchant’s Venice, a history of abandon and de-subjectivation the city has already gone through, giving rise to a community sans aveu ni oeuvre, in the moment at which the curtain goes up. All that these orphaned lost ones,6 who are thus fated to become unrelenting social climbers, are left with, are two classes of symptoms, objects that matter: namely such fetishised articles as caskets, rings, pounds of flesh, money, and bodies that matter, more exactly one body that matters, namely Shylock. In one important sense Shylock is, possibly together with Portia’s father, the loser in the newly emerging communitarian and control society structure replacing the solid government of earlier times.7 The gentlemanly, which is also to say male,8 place which is the Venice that Shakespeare drew, is presented as the site of a postsubjectivity, a desert of erring subjects longing de profundis, from the depths of their widower-hood, for a master to follow—before tearing him to pieces, like Aktaeon’s dogs. Once the political master has given in and compromised, we are left with the weak consensus of a merchant collective in constant need of an external founding and funding agency. Shylock’s defeat will nourish this Danaïds’ cask on both counts, for the length of one more Act.

WOULD SHYLOCK HAVE CUT? The most fascinating ingredient of The Merchant of Venice, the effective problem underlying the play (one of the once so-called ‘problem plays’) is the fact that the play shows a trial taking place, a punishment being meted out, a person’s social existence reduced to bare life, without his having ever left the realm of words and entered that of deeds. On the one hand, Shylock is two-dimensional, a figure without personal depth, a generic Jew.9 On the other hand, Shylock’s misdeed, 6 Whatever or whoever has deserted or ‘lost’ the Lost Ones of Samuel Beckett’s great prose fragment of the same title (1973?) via its initial French title, Le dépeupleur, Beckett’s work responds to Alphonse de Lamartine’s ‘You miss one single being, and everything is depopulated’: ‘Un seul être vous manque, et tout est dépeuplé’. The question of the dépeupleur’s identity must remain open in order to give rise to the community of the deserted or the abandoned that is imagined by Beckett. In contrast, it is by means of Shylock’s defeat that Shakespeare’s Venice’s mafioso jeunesse dorée make the career-step of becoming what they are in Act 5. 7 Shylock, as much as the Eternal Jew—the Ewige Jude, whose myth originates from Hamburg’s Ghetto more or less at the same time at which Shylock’s is grafted into Venice’s (cf Dietrich Schwanitz, n 2 above, at 21)—is a dispossessed remnant of earlier evolutions, the counter-hero of the socio-Darwinian struggle for survival via adaptation. 8 Jessica is Jewish, Portia and her servant are from Belmont; we do not find a single gentile Venetian woman in the list of characters. 9 See John Gross, Shylock: Four Hundred Years in the Life of a Legend (London, Vintage, 1992) 37, who however hastens to add that ‘there were other conventions that Shakespeare rejected’. For instance, ‘[Shylock] is one of the few stage-usurers who is not described as physically repellent’.

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which costs him so much, is a would-be felony, made out of mere words. Criminal law is, of course, perfectly familiar with such crimes. On the one hand, as in the case of hate-speech, ‘words are deeds’ (Wittgenstein) also, in the sense that they constitute punishable conduct. On the other hand, in a wide variety of cases, a punishable act which in itself is not speech, can also be committed by spoken or written words. What sets Shylock’s case apart is the fact that whatever he has committed, he has done so in front of what he believes is a judge, in arguing a contractual claim. True, if it is upheld, then no one could stop Shylock from acting in a way that would mutilate and kill Antonio. For, if no one had stopped him, as fortunately Portia alias Balthazar can and does, then, clearly, Shylock would kill Antonio, ‘having an oath in heaven’, having ‘sworn an oath’ to do so. It is thus a genuine happy end to see Shylock’s claim, and following this, Shylock himself, undone. Yes or no? Not quite. Throughout 400 years of performance history, only some eccentric voices had as much as considered the possibility that the answer could as well be no, Shylock might refrain from cutting, were he allowed to cut.10 The moment at which you see the Shylocks wielding their knives and the Portias intercepting them, as if they were so many restagings of the Angel stopping Abraham’s knife-wielding arm, is situated just before Portia’s ‘tarry a little, there is something else’ (4.1.301): PORTIA you must cut this flesh from off his breast; The law allows it, and the court awards it. SHYLOCK Most learned judge! A sentence; come, prepare. PORTIA Tarry a little, there is something else. This bond doth give thee here no jot of blood.

What happens between Shylock’s ‘come, prepare’ and Portia’s ‘Tarry a little’? The paper is blank there. We are in the state of exception in which actors and stage directors are allowed and required to make the law. But even here, not everything goes. Theatre, as an art, as a genre, is inseparable from an economy—an economy of maximising the dramatic effect. And, as an effect of this economy, Shylock is stopped by Portia in extremis, just before planting the knife in Antonio’s breast. Theatre’s unique endowment has here the effect of leading to a straightforward re-enactment of the pogrom tradition. And who would, by Jove, not agree that a stage-pogrom is very different from a pogrom? Shylock’s birth in Shakespeare is the late outcome of a long sequence of repetitions of a tradition, of a series of adaptations and reworkings of a solid tradition. A whole genre of late sixteenth century literature both of the dramatic 10 Cf ‘Structural Terror: a Shakespearean Investigation’ in Lior Barshack, Peter Goodrich and Anton Schütz (eds), Law, Text, Terror (New York, Cavendish, 2005).

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and the epic genre include the cruel money-lending Jew.11 The Jew, in his majority interpretation, Christian or simply current, is representative of what is known as literal or carnal relation to the text. Interpreting a text, paying attention to the letter, this means that what counts is not the uninhibited pure intelligence of a text’s essence, but the welcome offered to the minimal element of the text, its ultimate particles, whose claims should be considered. What is meant by the fact that literal interpretation is also ’carnal’ according to the anti-Jewish polemics since the age of the Christian Fathers, is partly the rejection of the text’s spiritual, anagogic or progressive understanding. Yet, there is also the fact that those who are not confessing self-submission under the text’s meaning, abuse it by reducing principle into contingency; ‘flesh’ stands for capriciousness of the cut, spirit for the integrity of principle.12 The literal enforcement of his contractual rights would allow Shylock to cut into Antonio’s body. Literalism is allowed and indeed welcome to the extent to which it is spiritually instrumentalised, as a mere ‘technique’, as the service of literalism paid to the anti-literalist campaign. The art in which the disguised Portia excels, frustrating the evil literalist intent by borrowing its own means, looks back on a long pre-history in miracle and morality plays dealing with the force, the ruse, the merely effective (unprincipled, but successful) power used by the angelic agents after the protagonist sinner’s death, in stealing his soul away from its rightful owners, the devils.13 But the frustrated devils remain what they are; only The Merchant’s defeated Jew-culprit is forced to use his human right of converting to the common economic salvation of becoming a Christian. In addition, his indictment for a merely speech-internal misconduct, based on the mere presumption that he would have cut, is a victory gained over a solitary half-pariah, the weakest of enemies. It provides his adversaries with an apotheotic and humiliating triumph, not second to that of a Roman general after having won an exceptional victory on the battlefield. Yet, it is to be seen as essential to the play’s economic equilibrium, the more so as it pre-emptively compensates for Act 5’s ‘wearing thin’ in matters of happiness, by providing Act 4 with a vicarious happy ending. That Shylock would have cut if not physically stopped from doing so carries the weight of the dramatic argument. It was thus necessary to invest it with the dramatic credit of a ‘here and now’, to make the scene happen between real citizens of a real city in a real courtroom. It is exactly this ‘here and now’ that had been lacking in the earlier, religious tradition. The spectacle of the devilish claim to the soul finally frustrated by the secret service of Saint Michael’s angels, as it had been staged 100 or 200 years earlier, had taken place in the no-man’s-land or 11

Cf John Russell Brown, Introduction to the Arden Shakespeare Merchant of Venice (1955/1961). See Daniel Boyarin, ‘“This We Know to be the Carnal Israel”: Circumcision and the Erotic Life of God and Israel’ (1992) 18 Critical Inquiry 474. 13 Maximilian J Rudwin, Der Teufel in den deutschen geistlichen Spielen des Mittelalters und der Reformationszeit. Ein Beitrag zur Literatur-, Kultur- und Kirchengeschichte Deutschlands, Schriften zur germanischen Philologie (Göttingen, Hesperia, 1915, and The Merchant of Venice, n 3 above, Introduction, at 12. 12

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threshold zone of the judgment of the individual soul, the judgment which immediately follows a person’s death (as opposed to the collective, one-off last judgment, for all men, at the end of time).14 Was Shakespeare aware that he was in a sense secularising what had formerly been the scene of Saint Michael’s and his servant angels’ charitable fraud and commendable cheating against the devils? In any case, he manages to avoid excessive simplicity by artfully supplementing the finally overcome trials of the Venetian gentlemen’s gang with the seeds of future difficulties for the gentlemen, arising from the newly acquired authority, as well as knowledge, of Portia and Nerissa.

AN ENDLESS INHERITANCE OF EMBARRASSMENT This secularisation of the case of the rightful but devilish claimant operates by transposing the site of judgment into the real world, and by replacing the devil with a Jew. This change can be read with various sets of parameters. On the one hand, Venice, the model city, with its openness and egalitarian ambition, endows every citizen of any nation with which bilateral trade relations existed with the full exercise of the right of a Venetian citizen. There were Jews, legitimately living amidst the Christian population. On the other hand, the question posed by the worldly transposition of the evil force is the question of their social status, not a problem in connection with devils. They are dispossessed, indeed illegally so, which does not impinge on their situation. But a dispossessed and publicly shamed human is likely to fall into the status of slavery. This question of slavery is implicitly and explicitly omnipresent in The Merchant of Venice (4.1.89–100).15 The issue now is: what can a slave be trusted to intend and perform in relation to

14 Jérôme Baschet, Les Justices de l’au-delà. Les représentations de l’enfer en France et en Italie, Bibliothèque des Écoles françaises d’Athènes et de Rome (Rome, École française de Rome, 1993) fascicule 279. 15 The theme of a mandatory active ‘rightlessness’ (as opposed to passive toleration) for Jews, one of the few great themes that epitomise old-European anti-Judaism in patristic and later theological and legal (canonical) elaboration, boils down to the claim that the ‘slaves of the letter’ be reduced to slavery in every other, but especially the technical-legal sense, as well. Launcelot Gobbo impersonates an entire library of passages from the Fathers, councils’ and synods’ decrees, canonical and theological commentaries, judicial decisions, that ask the question of a Jew’s capacity to have Christian servants, and its resolution in the negative.

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truth? What wish to produce truth can he have, considering his status, as an outsider to the sphere of respected enjoyment which endows life with its charm?16 If one looks at the numerous earlier narratives where the flesh-bond story plays a role, what is striking is not that most versions, after sounding all chords offered by Christian piety and theology, equity and common law, stage the ironic or paradoxical adoption of Jewish literalism against the Jew and in favour of the Christian cause (as does Shakespeare), but that they end with the dismissal of the money-lender’s claim. Shakespeare, in contrast, has Shylock subjected to a session of shaming defacement, a session which strains current sensibilities and appraisals beyond return, and indisputably so, as has been shown once again by the general outcry after the leaking of the photographs from Abu Ghraib. That appraisals and sensibilities changed after the Second World War and should best be simply admitted as a matter of fact. There is no need to justify this change by the ostentation of a ‘holier-than-thou’ type of compassion. On the other hand, what is lost if one admits that Shakespeare wrote scenes that were to be deeply embarrassing to people living four centuries after him? There is no good reason to take sides with our embarrassment against Shakespeare. Such an argument would abusively elevate our embarrassment to legal status, and would lead, if to anything, only to censorship or deliberate euphemistic misreading. That is why none of the many well-meaning attempts to save Shylock against Shakespeare has ever been entirely convincing. But to take sides ‘for’ Shakespeare and against our embarrassment is equally misguided. ‘We are still painfully aware that Shylock has attempted murder, and it would be a deep affront to our sense of justice if he now said, “I’ll stay no longer question”, gave his characteristic shrug, and walked out of the courtroom’,17 says Mahood in relation to Shylock’s ‘manifest proceeding’ (4.1.354) to kill Antonio in cold blood. What use is such an apology? Or, when the judge lets Shylock know that the law has another hold on him, what is the point of claiming that ‘Our normal, human reaction here is, again, satisfaction’.18 The claim that such a satisfaction is a ‘normal, human reaction’ or the claim that the Duke’s ‘mercy’ to leave Shylock his life (a life, patently, of life-long hostageship, humiliation and exposure) should be taken at face value, but remain somehow theoretical. Any hint on how precisely to go about feeling about Shylock, on the way in which it is ‘normal’ and ‘human’ to feel about Shylock, would be greatly appreciated. The idea of imposing, to earlier works of art, scholarship, literature, science, politics, by some informal type of retroactive legislation, standards of political 16 Agamben, in Homo Sacer, Sovereign Power and Bare Life (Stanford, Meridian, 1997), highlights the famous passage of Politics where Aristotle refers to euemeria, bliss/Glück/bonheur as an explanation why people are so attached to life/zoe. Agamben comments on Aristotle’s understanding of the relationship between bios and zoe, not on the social status involved, which is the other topic present in 1278b30–31. 17 The Merchant of Venice, n 3 above, Introduction, at 18. 18 Ibid.

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correctness, is one of our days’ most powerfully monstrous ideas. It would subject especially (yet in no way exclusively) the performing arts to the most unbearable form of censorship. What is on the other hand barely the appropriate response to this is to take sides, with Shakespeare on Shylock, with Mozart on Monostatos (etc), simply and deliberately ignoring the embarrassment they give rise to. Yet nothing excludes other suggestions, such as that of examining in depth Shylock’s situation, situation-bound interests, potential moves. Why would he try to kill Antonio: does he misconstrue the situation he would thereby create to the point of assuming that he could survive the result and aftermath of taking Antonio’s life? Yet, if killing Antonio was not his plan, what is the point of Shylock’s repeated refusal to show mercy? In spite of all these at first incompatible requirements, there is one account of Shylock’s way of acting which, I think, allows a coherent and ‘rational’ explanation of the strategy underlying his unsuccessful campaign. Shylock’s position in Venice is severely overshadowed by his constant humiliation as a Jew, a moneylender, a usurer. What if each of his steps was chosen to fit into one overriding strategy, a strategy chosen to emancipate himself (plus, possibly, all Jews of Venice) from his difficult condition? In this case, the only way that could possibly lead in this direction would be to invert the usual pattern of dependence, work his way out of passive toleration to active mastery. One way of doing so is to succeed in becoming, be it only for a short moment, master over the life of one of the Christian Venetian gentlemen, who make his life a misery. Is it surprising that, as soon as it is offered to him by the need in which Antonio finds himself on behalf of Bassanio, Shylock eagerly grasps the possibility of doing exactly this? Is it surprising that he suggests the crude and exorbitant penalty? That he firmly rejects the prospect of mercy when the situation becomes increasingly difficult for Antonio? The only way in which his project of enforcing equal recognition can succeed is to hold Antonio’s life in his hand, be it for a second, then letting go. Shylock’s story never passes the threshold, separating the ‘would do’ from the ‘does’, the word from the deed, the oath from the action. Shylock remains a prisoner of ambiguity: he will kill Antonio. But if he doesn’t, if he drops the dagger, then he will force Antonio to take his forfeited life back, as a gift from Shylock’s own, free hands. In the latter case, one might ask oneself: just how much would Antonio have liked to be seen at that? What Shylock does not see is that, in the eyes of his Christian compatriots, his project is the most adverse, the most dangerous, the least acceptable, even worse than a potential courtroom homicide committed against the person of Antonio. In one, decisive sense the uninterrupted continuation of Shylock’s state of humiliation is the overriding, the structural stake for the Venetians. The only thing to be avoided absolutely is not one Venetian man’s death, even if he is popular. It is to see the Jew partake, as an equal amongst equals, in the give and take of Venice. This is why Shylock has to be stopped before he can take the position that allows him to choose between taking Antonio’s life or leaving it to him. It is true that Shylock’s oath and his repeated reference to this oath make it

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easy for Portia/Balthazar to find good reasons to stop him before this happens. Yet, these declarations were indispensable for the pursuit of his project; without them he would not have been able to avoid accepting one or the other offer of negotiation or demand for mercy.

STAGING PREORDAINED INCUMBENCIES Shylock never makes it to the effective knifeman and remains a potential one all along. He would cut, and is tried for this. Supposing, for a second, that having been allowed to cut, Shylock had effectively maimed or killed Antonio, where would this attempt have taken him? The cut would have happened at court, within the session, coram judice, in front of the judge, even coram duce, in front of the Doge, supreme chief of executive power, and in the midst of ‘court officials’. Where would that have led him? The point to understand here is the central mystery of legal rule located in the law courts. Courts are, as invariably as incurably as unadmittedly, in exception from law: the merest gaze at what happens in a courtroom, if it has freed itself from formalist apologetics and institutional or (for lawyers) professional narcissism makes clear that legal procedure is much more largely determined by ‘practical routine’, ie merely factual possibilities of action, than by law. The question what Shylock would have done is thus our horizon indépassable. Comparison with Angelo in Measure for Measure helps. In both plays, neither of which is a tragedy, heinous crimes and bloodshed are bound to remain uncommitted. In Measure for Measure, both of Angelo’s culpable actions, murder and rape, are, as far as his own contributions are concerned, perfectly committed; if the first is thwarted, the second is converted into a marital encounter, this happens, as lawyers would put it, outside of Angelo’s sphere of action. Everyone, at the end of the play, understands what Angelo had been up to, what he had wanted, and did not and never will get. He, too, knows this, with the effect that there is no obstacle to his resocialisation. But Shylock? What did he want? No one knows, it seems, or wants to. Yet, to kill Antonio would surely be a suicidal move on his side, and is Shylock really either a suicide candidate, a potential suicide killer, technically speaking, or simply stupid enough to put his life at peril by bloodshed at court? But why, then, did Shylock even make claim to cut into Antonio’s breast as stipulated in his bond? What becomes clear, at last, is that there is something that expresses itself in the manifest action, the bond, the forfeiture, the courtroom proceeding; a second, more fundamental structure that makes some certainties appear as nothing more than mere rationalisations. This structure is in the service of the painfully inadmissible and therefore silent order, according to which even Christian mercy makes no exception to the rule that, in order to become legal, to prove itself superior, to be victorious, or simply to flourish

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institutionally, a body of truth needs to measure itself against an addressee of justified if exceptional mercilessness, a merciless antagonist. The Christian position stands in need of, is vitally dependent on, ‘addicted’ to, a manifest antagonist that plays the merciless role of a foil to Christianity’s mercy. Who can embody such mercilessness? Shakespeare feels that a simple individual character alone would not be sufficient in the employment. What helps out is the roledistribution, underlying the unseen overall orientation of Western Christianity, more specifically the immemorial history of the Judaeo-Christian divorce.

A COMMUNITIY’S INCOGNITO It is well known that Greek theatre, and especially classical tragedy in its Athenian Urszene, was not a cultivated after-office pastime, but located within the very centre of the public’s lives, involving the spectator’s entire existence. It was constitutional in the full legal sense of the word.19 If Mikhail Bakhtin has left his study of the Carnival in Rabelais, with its ‘carnivalisation of literature’, without an equivalent exploration of theatrical literature,20 he has nonetheless provided the conditions for a reappraisal of early modern theatre by understanding it otherwise than as a well-separated internal site within society, a series of microhappenings unconnected to the macro-happening of history, a mere facultative supplement at the periphery of peoples’ lives. It is this otherwise that has led to interpreting theatrical literature no longer as an inventory of scripts destined to fit out this internal supplement with changing contents. Theatre appears in this view not as a second reality within ‘reality’, or a stage within a stage, but as part and parcel, and indeed as a moving part, of the societal community’s own history. Accordingly, the art of reading the plays of the past is today predicated on the notion that they illustrate the compassing society/reality/history itself; and this in modernity, whether early, late, or post-, no less than, for example, in classical Athens.21 In addition to mean the world, the stage is here seen to be the world! If we accept this view, a play like The Merchant of Venice presents itself in guise of a liturgy, a ceremonial order, a ritual, a solemn and powerful statement of selfmanifestation of the community that stages it; of that compassing community

19 See eg, Suzanne Said, ‘La tragédie de la vengeance’ in Gérard Courtois (ed), La vengeance, Etudes d’ethnologie, d’histoire et de philosophie (Paris, Cujas, 1984) 47–90. 20 Mikhail Bakhtin, Rabelais and His World, trans Hélène Iswolsky, (Bloomington, IN, University Press, 1993; on Bakhtin’s silence about theatre, see Peter von Moellendorf, Grundlagen einer Aesthetik der Alten Komödie (Tübingen, Gunther Narr, 1995) 67–72. 21 Cf the volume edited by Christian Biet (with Charlotte Bouteille-Meister), Théâtre de la cruauté et récits sanglants en France: XVI-XVII siècle (Paris, R Laffont, 2006).

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that is formed not only by stage and auditorium, actors and public, but also by the life outside the theatre, ‘the people’ at large, to which the theatre relates as pars pro toto.22 The community stages itself. This liturgical understanding of theatre as the self-staging of a society, as the real life ceremony presented under only the most indistinct of incognitos or masks, becomes visible when one looks into a category of theatrical production, which is admittedly rare and obviously peripheral, namely such dialogues with Shakespeare’s plays, as have chosen to adopt themselves the dramatic form (rather than that of the commentary). David Henry Wilson’s Shylock’s Revenge is an example.23 The play was first performed in Hamburg in 1989. It uses the resource of replying in kind to the ‘treatment’ that a character receives from his author. The effect is stunning. The play proves capable of undoing what has been done in Shakespeare’s. Whereas, quite obviously, no commentary has the force of negating the text it comments on. In order to stage itself, the community proceeds masked, incognito. Between the theatrical practice of masks and roles, of incognito and suspended identity, and society at large, there is no such thing as a pre-established relationship, no equidistance. In early modern times, invisibility conquers society, far beyond the borders of the sole theatrical culture. The new continent that will eventually have grown out of this is modern economy. The role of invisibility in the history of liberal economy is discussed in Michel Foucault’s explorations of the issues of modern government.24 Giorgio Agamben’s recent inquiries part ways with Foucault on one single—important—point. The praxis of non-political government in the West, the history of management or oikonomia, of the emergence of an inconspicuous but for that only the more effective, provisional, urgencymanaging or trouble-shooting practice in the shadow of ineffective, but visible power, far from being an exclusivity of early modern or modern times, grows its roots well before modernity, and is traceable throughout the Common Era.25 In the theatrical ‘version’ of this art of non-political government, we find figures such as Mephistopheles, or precisely Shylock, who, unwilling, although not necessarily unwitting, harbingers and instruments of salvation, at once objectionable and indispensable, strike us as so many visible prosthetic embodiments, or enlargement devices, of the invisible hand. Their obvious prototype is Judas. Without Judas, no resurrection: that is why it is important that Judas is buried

22 Theatre considered as visible epitome of the otherwise unseen, as procedural-legitimate aveu or ‘admission’ of that which constitutes the community as communauté inavouable. 23 Published as an appendix in Dietrich Schwanitz, Shylock: Von Shakespeare bis zum Nürnberger Prozeß (Hamburg, Krämer, 1989) 235–93. 24 See especially, Michel Foucault, Naissance de la biopolitique: cours au Collège de France, 1978–1979 (Paris, Gallimard, 2004) 286 et seq. (On the question of the invisible hand in Adam Smith, see the lecture of 28 March 1979). 25 Cf Giorgio Agamben, Il Regno e la Gloria: Per una genealogia teologica dell’economia e del governo (Milan, Neri Pozza, 2007).

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correctly.26 Without Shylock, no Belmont, and without Belmont no Act 5, but also, no complex theatrical investigation into the Christian art of arts, that of directing the half-transparent conscience of guilty Christian souls, of delving into the hypomnestic Zwielicht between Christian morals (not: Christian religion) and urban life and survival strategies; an art which Shakespeare makes his own with relish in Act 5.

‘LEGALISM’ – JEWISH OR CHRISTIAN? These negative but indispensable characters are not easy to do on the stage, as Hegel has seen. Yet they can show in action what the sociologist Talcott Parsons had, half a century ago, dubbed with the endearing label of ‘evolutionary universals’. The way to liberal salvation—the advent of God’s government of the world, in theological terms, or, in secular and economic terms, the global achievement of Pareto-optimal conditions—is not top-down, it is via embodied self-interest. Why, better: How is Shylock important and, in Parsons’s sense, path-breaking? The answer is: against his will, and indeed by means of his defeat, by being sacrificed to the greater glory of what he seeks with all his means to oppose. The striking defeat of Shakespeare’s Shylock or Goethe’s Mephistopheles, meant to be only moderately striking, is all that is left under Christian and post-Christian conditions, from the tragic fall of Medea or Oidipous Tyrannos. The theatre of modernity has supplemented what the Greek had not dreamt of identifying in Medea’s or Oidipous’s downfall: a cosmological meaning. Shylock, a character which in the overall economy of the plot features as a laboriously unfolded enabling device for Belmont to happen,27 poses, in his own terms, a problem of what might be termed transmissional correctness. This problem, which concerns the ‘Interpretation of Shylock’ by Jewish interpreters, is included in the more extended question whether, under the conditions of the Diaspora, a Jew will (can, should) ‘feel represented’ by any non-Jewish artefact representing Jews, or Jewishness, or some aspect thereof.28 The Jewish villain 26

David Daube, ‘Judas’, Collected Works, Vol 2, 783–799 (787ff.) In assigning to Shylock the role of an unwilling go-between or negotiator, Shakespeare follows a model that can be followed back at least until Augustine who bestows upon the Jews the role of carrying the books which are fated to prove, against their will, the truth of the Christian message to the Pagan candidates for Christian conversion. Yet the book-carrying Jews themselves are, of course, blind to this truth, and it is this blindness which makes of them, at once, in the eyes of the Pagans, the perfectly credible, because unwilling, witnesses for the Christian truth and, in the eyes of the Christians, the equally perfectly efficient instruments of its propagation. Cf Augustinus (Sermo 201), Migne, Patrologia Latina, vol 38, cols 1032–3. 28 Two recent examples: Martin D Yaffe, Shylock and the Jewish Question (Baltimore, Johns Hopkins University Press, 1997), who, focusing more on Shakespeare’s opinions and ideas than on Shakespeare the dramatist, hastens to defend Shakespeare against the claim that he might have been ‘somehow morally obtuse toward Jews’ (at 163); Avraham Oz, ‘The Merchant of Venice in Israel’ in 27

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Shylock presents a specifically difficult case in this respect. In the name of which sombre fidelity or solidarity, should a Jew feel closer to him than does anyone else? If an uncertain sense of tua res agitur seems connected to the Jewish experience of seeing the Jew Shylock subjected to mistreatment, is it mandatory, is it even justifiable, to accept this gambit of identification? Different from earlier takes on the play, many Jewish interpreters of The Merchant of Venice today relinquish the insularity of a ‘merely’ particular position and prefer to claim their undiminished right to a universal, ‘unpreconceived’ approach to the play and its characters, ‘as anyone else’. It is hard to contradict this claim, but it is not uninteresting to look at its implications. What exactly happens when the nonJewish artefact Shylock is no longer recognisable as a Jew by Jews, when Judaism has lost its status as an ingredient of both Jewish and non-Jewish culture, when self-made identities and received identifications are as a matter of principle no longer permeable to each other? The page, if not of Diaspora Judaism, of a certain art and science of living it, has been turned. One question would be why join mainstream interpretation, when the very concept of it can only be justified as long as there are other ‘streams’ as well? Richard Weisberg’s reading of the play is emphatically not in line with these dis-communicative tendencies. He refuses to subscribe to the assumption that the Judaeo-Christian tension is a historical construction that can be crossed or crossed out, deconstructed or levelled down to the status of one level amongst others. His interpretations stick to the notion of a Shakespearean Venice populated by Christians and Jews, and to that of our own world and readership being still under the call of the historical divorce of Christians and Jews, although at a different level of the multilayered palimpsest to which the eminently communicative process of a divorce gives rise.29 But Weisberg does not stop at this point. Far from only invalidating the typical Christian, anti-Jewish blame of legalism with arguments in favour of legalism and on the dilemmas inherent in the anti-legalist campaign, Weisberg disattributes the legalism-reproach from the Jews and returns it to (against) the Christians. Not Shylock’s, but on the contrary Antonio’s and his friends’ attitudes are marked by legalism. In doing so, Weisberg avoids subscribing to the established categories, turning upside down the immemorial choreography of the Judaeo-Christian divorce. His position is no longer limited to taking sides in a polemical debate that underlies near two millenia of interpretational antagonism: by returning the accusation of legalism to the Christian side, he ventures to change the very terms of this debate, committing himself to an audacious step. The reproach of legalism, which, since time

Dennis Kennedy, Foreign Shakespeare: Contemporary Performance (Cambridge, Cambridge University Press, 1993) 56–75, who calls Shylock an ‘alien’ and a ‘legal terrorist’, on the (Christian, indeed theological) argument that he ‘uses the law in a way that stands in contradiction to its spirit, is a conscious subversion of the soul of Venetian order’ (at 71). 29 Richard H. Weisberg, ‘Antonio’s Legalistic Cruelty: Interdisciplinarity and The “Merchant of Venice’”, 25 (1), College Literature (West Chester University, PA), (Winter 1998), 12–20.

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immemorial, has animated the anti-Judaism inherent in the Western Christian tradition, is unmasked as the effect of a classical projection. On one level, things, Weisberg tells us, are much simpler than we had thought: the dominant, Christian side has attributed to its opponent a feature that was its own, but that the Christians refrain to acknowledge in themselves. It is true that the rabbis never seem to have made that point. Their argument has been, pretty consistently, that literalism is right, and if this position was qualified as ‘legalistic’, then the worse for the qualifiers. One looks in vain for the claim that the usual Christian categories misrepresent and invert the effective positions; that the Christian interpretation, which prides itself for its spirituality, should be understood as really legalistic, and that the Jewish approach, which prides itself for never siding with ideas against letters is, on the contrary, really anti-legalistic. This does not invalidate Weisberg’s point, but spells out what is at stake in his contention. For instance, the unequal distribution of power between Christians and Jews, and the ensuing precariousness of the Jewish side accounts, could arguably have prevented the Jewish side from making the argument. Even the reticence some might feel today to acquiesce with Weisberg’s conjecture might be grounded in the fear that by spelling out the end of a certain game, the situation is not improved, only rendered less legible. Following Weisberg’s conjecture, the history of the Judaeo-Christian opposition had been vitiated from the outset; it has been based on one big and fat misunderstanding, commonly shared by all concerned. Neither had the Christians been spiritual, nor the Jews carnal. Instead, the picture presents itself as a much more nuanced one. A Christian position, which, inaugurating what was first of all (in Jerusalem, at least) a Jewish reform movement, has given rise to and circulated Good News, that is to say better-thanlegal ways; a programme which was in the end fated to backfire by leading, paradoxically, into a legalistic deviation, programmed, precisely, by its at length unsustainable anti-legalism. A Jewish position, which, by means of refusing to offer a transcendence to law and thus upholding a sharp difference with Christianity (to the point of aggravating the reproach of legalism, to which it was constantly subjected) had, equally paradoxically, succeeded in resisting Weisberg’s legalism, the sweeping, paradoxical Christian legalism which becomes intelligible as the historical mésaventure of the Christian, neutralising, universalising redefinition of the law.

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18 The Concept and Performance of ‘The Code’ in The Merchant of Venice RICHARD H WEISBERG

INTRODUCTION: ‘THE CODE’ AS LITERARY MARCHING ORDERS n many otherwise highly varied Shakespearean plays,1 codes operate as structuring devices that guide the thoughts, words, and actions of the main players. ‘The Code’ in Shakespeare presents less as The Da Vinci Code’s indecipherable linguistic puzzle and more as a grammatical ordering of relations, individual or communal, private or public, that appears to issue marching orders to its intended reader or readers. Regarding Shakespeare’s works, then, I seek (like the main characters) to locate a grammatically identifiable text or texts purporting to dictate the characters’ future behaviour. Although ambiguities and outright conundrums do arise within each identified Code, and although readers of codes must often grapple with the elusive nature of linguistic signs, in these plays the focus is always upon how to respond to rather than how to understand The Code. As in other plays from all epochs,2 codes demand of often reluctant protagonists a kind of loyalty to a previously announced set of norms.

1 I am working on a larger project involving the concept of ‘The Good Code’, of which this chapter forms a key part; other Shakespearean works to be analysed there include Hamlet, Measure for Measure, King Lear and Richard II. 2 Some famous code-central plays include The Eumenides, where male and female revenge codes are mediated by Athena; Le Misanthrope, where Alceste’s code of honour is tested (comedically, somewhat akin to Shylock’s) by the looser standards of social practice; and more modernly Susan Glaspell’s ‘Trifles’, the 1916 forerunner to her brilliant short story, A Jury of her Peers, in which a code between women rivals and bests the official criminal process against Minnie Foster, their friend.

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Story-tellers, before, during and after the Renaissance, have used explicitly legal codes to fashion the conflicts within their characters’ lives.3 The Merchant of Venice, for example, situates the main dilemmas in the play along the lines of three legalistic codes. The most famous of these codes (although not the very first mentioned in the play) takes the form of a private contract (The Private Code), a sealed instrument dictating the terms of a loan and the obligation of the borrower should he default on it. When the latter, Antonio, in fact fails to pay the lender, Shylock, within the stipulated time period, the bond calls for him to forfeit a pound of his own flesh. Shylock decides to go to court instead of simply taking the flesh extra-legally, but The Private Code as its parties had previously understood it is deconstructed by a clever judge (Portia in disguise) who then unleashes upon Shylock the ‘Alien Statute’ (The Public Code) that fully undoes him. Earlier in the play, Portia grapples with yet another code under the terms of which she must choose her husband. Her father’s posthumous voice (The Testamentary Code) orders her suitors to choose from three caskets, much as Shylock’s contract seems to dictate the cutting of Antonio’s flesh. As we shall see, Portia begins by respecting this strange form of dead-hand control over her marital decision, just as she (in disguise as a learned jurist) later shows at least a preliminary respect for Shylock’s contractual Code. In both cases, she will find a way, however, to escape the fair meaning (which she fully grasps) of the binding provisions so plainly authored by these older men. Ultimately, Portia acts in the direction of her most innately felt value, which we shall call here The Marriage Code. In the service of that Code and no other, she at one and the same time defeats Shylock and senses an empathy for the Jew as the only Venetian male character she has seen in action who also believes in the sanctity of Codes, and especially perhaps The Marriage Code. As the play ends, she realises that Shylock’s adversary, the man whose life her cleverness has saved in open court, has induced her new husband to give away the symbol of that Code. She will henceforth insist on its meaningful implementation within her fledgling marriage.

3 The Greeks, again, introducing trial by jury; Shakespeare, followed by the Jacobeans, and then so many modern novels. In Shakespeare, code-plays often lack this explicitly legalistic element. So, in Hamlet, there are fewer nods to law and trials than we find inThe Merchant of Venice, although these do exist and they have considerable importance; there is no explicit legal code structuring the action. Rather (again as in many stories before and after this one) marching orders are provided by non-legal authorities and influences who issue their demands to the protagonist. Hamlet, most notable perhaps among many such protagonists, must respond one way or another to The Code, and it is of little importance to him that nothing like the State of Venice or any other government has placed its power behind the demand. The Code insists first on being understood but then especially on being implemented. The protagonist may, often after struggling with himself and others, hesitate (or refuse) to comply.

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THE UNDOING OF THREE CODES The Pound-of-Flesh Bond: a Private Code at Arm’s Length In Act 1 of this problematic comedy, Shylock answers the financial needs of the romantic hero, Bassanio, by supplying him 3,000 ducats, necessary to charm and woo by outward show a rich heiress named Portia. However, since Bassanio is profligate, the deal is struck by virtue of a contract (The Private Code) between Shylock and the young rogue’s wealthy friend and mentor, Antonio. If the 3,000 ducats are not returned within three months, Antonio forfeits a pound of his flesh. The sophisticated merchant not only accepts the risky deal but does so wholeheartedly, insisting that Shylock’s willingness to lend the money without interest and his own highly probable solvency during the three-month period make it more than a fair deal. Shylock explicitly seeks Antonio’s friendship by the unusual and unprofitable gesture of refusing interest, but Antonio continues to hate his perennial business and religious rival: ‘But lend it rather to thine enemy’, the Christian merchant spits out, ‘Who if he break, thou mayst with better face / Exact the penalty’. (1.3.136–8) The Code is sealed at a notary’s. Thus do two seasoned businessmen, acting at arm’s length and fully cognizant of The Code’s terms,4 set in motion a series of events that eventually finds them in a Venetian court. The three months have passed, Antonio has defaulted, and Shylock demands his pound of flesh, or—to put it better—demands of the court that it place its formal imprimatur on The Private Code. It is quite unclear that he intends, in fact, to cut the flesh.5 Everyone knows (even if not everyone loves)6 the courtroom intervention of the disguised Portia, whose admittedly bizarre7 reading of The Private Code unties the comedic knot and sets Antonio free. She performs on its grammar a 4 Antonio is an author of the very Code he manages, through the great effort of others, to escape at the last second. He must therefore be seen as considerably more irresponsible than other Shakespearean characters who do not enjoy such a privilege. In Hamlet, The Code (or several variations on the lex talionis that lies at its heart) is imposed on its awestruck listener by an outside force. Hamlet, unlike Antonio, is not a participant in framing The Code that now seems to control his fate. So, whatever their similarities in unravelling the literary idea of The Code, the tragic Prince’s responsibility to extrinsically-authored marching orders should be set against the comic Merchant’s recklessness towards The Code he in fact has co-authored. . 5 5 See Anton Schütz, ‘Structural Terror: a Shakespearean Investigation’, in P Goodrich, L Barshack and A Schütz (eds), Law, Text, Terror (London and New York, Routledge-Cavendish, 2006): ‘[W]hat is really the difference between believing that the Jew Shylock, if he were not stopped, would have killed Antonio, and believing, as did entire urban populations in the earlier Middle Ages, in the narratives—infamous, and transparently pogrom-motivating—of Christian babies being the victims of Jewish ritual slaughter?’ (at 88) 5. 6 Daniel J Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton, Princeton University Press, 1994), is particularly unimpressed with Portia; see eg, at 76–9. 7 The distinguished jurist Rudolf von Ihering, in Der Kampf uns Recht (1886) translated as The Struggle for Law (1915, repr by Connecticut, Hyperion Press, 1979), was one of the first to take Shylock’s position, although Heine had already called the Jew the only respectable person in the play,

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series of tricks acceptable perhaps to the comic medium of the play but outlandish according to even the most ‘liberal’ of legal interpretations: Tarry a little; there is something else. This bond doth give thee here no jot of blood; The words expressly are ‘a pound of flesh’. Take then thy bond, take thou thy pound of flesh; But in the cutting it if thou dost shed One drop of Christian blood, thy lands and goods Are, by the laws of Venice, confiscate Unto the state of Venice. (4.1.315–22)

Summarising a distinguished tradition of commentary highly critical of Portia’s manoeuvre, I have suggested elsewhere8 that Portia’s interpretation of the contract can be accepted only because the comic medium of the play both demands and condones such trickery. Under the conceit of the present discussion, Portia’s outrageous hair-splitting9 in open court ironically reveals her allegiance to the idea of The Code. But it is a different code altogether than the one she is supposedly interpreting for the court. She covertly substitutes for a fair reading of The Private Code undertaken by Shylock and Antonio a wholly separate Private Code: that of the marriage contract pledged between herself and Bassanio in Belmont.10 Without her absurd interpretation of the former there will be no consummation of the latter. Bassanio has obviously committed all his emotional energies to his imperilled friend and has even gone so far in open court as to ‘sacrifice’ Portia (at least economically and rhetorically) to Antonio’s needs:11 there will be no happy bedroom in Belmont until Antonio is set free. The problem that becomes obvious for Portia at trial, however, is to divine whether a liberated Antonio might stand as a yet greater threat to her happiness than the one who almost lost his flesh. So, before she fully releases this interventionist older man, Portia has a test waiting for Antonio. She deftly shifts from a Private to a Public Code.

Portia perhaps excepted, which is basically my position in R Weisberg, Poethics: and Other Strategies of Law and Literature (NY, Columbia University Press, 1992). 8 Ibid ch 10. 9 ‘Rabulistisch’ or ‘ignominiously deceitful’ was the usage coined by an Austrian in the von Ihering mould, a 1920s’ essayist named Alfred Polgar (reported in Schütz, n 5 above). 10 For outstanding work on marriages and contracts in Shakespeare, see BJ Sokol and Mary Sokol, eg in Shakespeare, Law, and Marriage (Cambridge, Cambridge University Press, 2003). 11 Bassanio: Antonio, I am married to a wife / Which is as dear to me as life itself, / But life itself, my wife, and all the world / Are not with me esteemed above thy life. / I would lose all, ay sacrifice them all / Here to this devil, to deliver you. (4.1.288–93)

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THE PUBLIC CODE AND ANTONIO’S FAILED CHRISTIANITY Uncounselled and deeply respectful of law, Shylock accepts Portia’s weird and inequitable12 reading of the bond. But much worse is in store for the Jew. Portia pulls out her second rabbit, the text of the Venetian Alien Statute. Under its draconian terms, he who was a civil plaintiff, respectfully asking the Venetian court to enforce the privately contracted penalty provision, now becomes a criminal suspect. This Public Code permits the state to take his life, and half his property, treating aliens as a separate class when they directly or indirectly threaten the life of a citizen; further The Public Code permits Antonio, as (alleged) victim of the Jewish outsider, to control the other half of Shylock’s wealth. After the state mercifully forgives Shylock’s life and lets him retain that half of his wealth, Antonio-as-victimised-Christian is fully put to the test: PORTIA: What mercy can you render him, Antonio? . . . ANTONIO: So please my lord the Duke and all the court To quit the fine for one half of his goods, I am content; so he will let me have The other half in use, to render it Upon his death unto the gentleman That lately stole his daughter— Two things provided more: that, for this favour, He presently become a Christian; The other, that he do record a gift Here in the court of all he dies possessed Unto his son Lorenzo and his daughter. (4.1.391–409)

In a detailed analysis of Antonio’s perennially misunderstood speech, I have elsewhere called this remarkable implementation of The Public Code ‘Antonio’s legalistic cruelty’.13 Hypocritical and eventually sadistic, Antonio begins by dictating additional terms to what the state alone had the right to regulate (the first 23 words ‘graciously’ deal with the state’s already articulated resolution of its share of Shylock’s property). What follows essentially sandwiches an enforced religious conversion between two technical property arrangements that fully devolve

12 In Poethics, n 7 above, I take issue with those legal analysts who have favourably associated Portia’s tactics at the trial with the institution of equity. See eg, my response to Mark Edwin Andrews, Law versus Equity in ‘The Merchant of Venice’ (Boulder, University of Colorado Press, 1965). 13 ‘Antonio’s Legalistic Cruelty’ in L Myrsiades (ed), Undisciplining Literature (1999) 180–8; reprinted from College Literature (1998) vol 25, 12–20.

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Shylock’s present and future wealth upon Shylock’s nemesis, Lorenzo. So much for the ‘mercy’ Portia asked the just liberated merchant to show towards the already defeated Jewish enemy! Speaking of Antonio’s demand that Shylock convert to Christianity, Kenneth Gross’s recent Shylock is Shakespeare14 reminds us that ‘the playwright himself added the forced conversion to the old story of the pound-of-flesh bond’ to sources such as Giovanni Fiorentino’s collection Il Pecorone (1558). ‘This adds’, Gross goes on, ‘to one’s sense of [the conversion’s] contingent perversity’. The ‘cruelly gratuitous’ nature of the demand, its bluntness, seems at first to be as superfluous to the story’s purpose as it does to any provision of the Alien Statute under whose provisions Antonio himself has been suddenly empowered as to Shylock’s property, although not his religious choices. But if, in Gross’s titular phrase, Shylock is Shakespeare, the cruelty of Antonio’s statutory interpretation at the end of the trial scene might be imagined as a ‘mockery’—Gross’s word—of the scene as a whole, an intentional reversal of the general misconception that mercy, somehow, will produce a kinder and gentler resolution than does strict law to the comedy’s central conflict, or to the contentious wider world of human conflict. In this sense, Antonio’s cruelty perfects the playwright’s comic vision and in no way does violence to the already situated representation of two different hermeneutic worlds, of two strikingly opposed visions or, better perhaps, optics. The play is everywhere about how people read the world, what kinds of eyeglasses they put on when they seek to understand the Codes that order individuals and groups through their lives. Shylock and Antonio look at these Codes through opposing sets of lenses, and it is fitting that Portia’s invocation of The Public Code reveals the true opposition between the Jew and the merchant. She learns by observing: Antonio stands for the easy unravelling of Codes. If he can upset another man’s religious commitment, if he can abuse the statute to take control over topics untouched by The Public Code whose terms supposedly control his action, he can also wreak havoc on her new marriage! The Public Code does not permit Antonio to deal with Shylock’s religion, and neither does it permit him to dispose of Shylock’s after-acquired wealth. Antonio, unbound to any Code, is quite ready to breach all of them! If Portia by now still has any doubt about this, she quickly learns that the merchant has induced Bassanio ‘To part so slightly with [his] wife’s first gift’. (5.1.160) Having tempted her new husband to give his equally new ring to ‘him’ (namely to her in the disguised role that has just saved his friend), she is delighted to see Bassanio’s refusal as an apparent ratification of The Marriage Code. Out of her presence, but eventually fully known to her nonetheless, Antonio manages to wreak havoc upon it! Little water has flowed under the bridge before the interventionist merchant works his will upon the fleetingly hesitant younger man:

14

K Gross, Shylock is Shakespeare (Chicago, University of Chicago Press, 2006) 107.

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My lord Bassanio, let him have the ring Let his deservings, and my love withal, Be valued ’gainst your wife’s commandment. (4.1.465–7)

Antonio is there to exert his own form of power, his strange ability to mediate the lives of others while appearing to be the least wilful of all his group. Just put your faith, Bassanio, in me, he seems to say: dispose of your wife’s first ring and go give it to the ‘man’ who just saved my life! Dispose of your religion, Shylock, and let me be the ‘trustee’ over all of your wealth, which will eventually go to the couple that made off with your wealth, traduced your sacred values and, most wretchedly of all, sold the ring you had of your wife when you were a bachelor.15 This is the nature of my ‘mercy’!

THE TESTAMENTARY CODE: A FATHER’S WILL UNDERMINED Portia’s own deviousness interpreting the bond exhausts her tolerance for such a casual approach to codes. Watching Antonio, she feels the nausea not only of her own hermeneutic excesses but also of Venetian society and its combination of gracious language and cruel prejudice. Working within her stunning individualism is a struggle that began several Acts earlier, when her father’s Will was tested against her own will. Portia grapples with her father’s final marching orders (The Testamentary Code), which her confidante Nerissa in Act 1 calls his ‘imposition, depending on the caskets’. The heiress wonders aloud whether ‘the will of a living daughter [should be] curbed by the will of a dead father’. (1.2.22–3) ‘You should refuse to perform your father’s will’, Nerissa says, and if the wrong suitor chances upon the right casket, ‘you should refuse to accept him’. Nerissa does not here directly advise Portia to reject The Testamentary Code but only reminds her that bad luck might lead to a life of conjugal misery forced upon her by an honest reading of her dead father’s command. So the two women playfully contemplate some cheating against The Testamentary Code by setting ‘a deep glass of Rhenish wine on the contrary casket’ (1.2.88) to distract the inebriated German suitor. At first, nonetheless, Portia sticks to the terms of the casket choice: only he who makes a free and uncoached choice of the right casket will win her hand. As unconscionable as her father’s dead-hand control appears to her, she also loves and respects him, not only out of formalistic filial duty but due to the nature of the man himself (as Nerissa says, ‘your father was ever virtuous and holy men at their deaths have good inspirations’). As tempting as it might be to guide the not-terribly-bright object of her affections towards the right choice (‘I could 15

Poethics, n 7 above.

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teach you / How to choose right, but then I am forsworn’ (3.2.9–10)), Portia for some 60 lines after Bassanio’s arrival, declines to do so. Eventually, however, as many commentators have noted,16 Portia guides Bassanio, who is otherwise not that sharp and whose prior actions and interest in wealth surely would not have led him towards lead17 as the proper choice. She fairly compels the latter by having a song sung whose final syllables rhyme with ‘lead’ and whose very theme is the attraction to the senses of leaden bells (3.2.65–75). So does Portia foreshadow the precise tactic she brings to bear on The Private Contract later on: a long exposition during which she appears to remain faithful to a code, followed by a reversal in which she undermines it. It is vital to understand, however, how her decision to ‘cheat’ in both cases already differs markedly from the grotesque falsification by Antonio of his power under The Public Code. Portia respects, although very differently both in kind and degree, the two men who have authored these two bizarre code provisions. Her respect for her father is paralleled by the emerging empathy she brings to Shylock as the trial progresses. She feels, as we have seen, for her fellow outsider to the dissolution and easy oath-breaking of the Venetian male community. Although excessive, Shylock’s allegiance to oaths must stand in stark contradiction to the flightiness of the other characters at court. Furthermore, although she probably has not as yet heard that Shylock deeply values the association of conjugal love and the ring,18 she may have overheard him intone ‘These be the Christian husbands!’ (4.1.305) at the discouraging moment when Bassanio pledges her life against that of Antonio. There is therefore a deep irony in her role as breaker of Shylock’s code, but she does so, as she traduces her own father’s Code, in the service of her marriage. Her desires fulfilled, however, she will nevermore abide any further slipperiness. She is going to be absolute about The Marriage Code.

THE MARRIAGE CODE: RINGS REDEEMED AND PROMISES KEPT What, then, is Portia’s attitude more generally regarding The Code? I think we can conclude that this estimable woman at first respects what she thinks of as ‘good codes’, meaning marching orders dictated by good authorities, such as her father. So she hazards her conjugal future against the bad luck of her first two 16

Kornstein, n 6 above, at 78, for example. The viewer has in mind the very reason for the problematic loan: Bassanio’s traditional preference for ‘all that glisters’(2.4.66): his need, that is, to look like gold. 18 18 Shylock is perceived as greedy, as conflating his daughter and his ducats, but this is hearsay and quite incorrect. And when it comes to his wife’s gift of a turquoise ring, there is no price he would have accepted for it. See also n 25 below. 17

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suitors, who wrongly choose gold and silver. Amorously following her (perhaps incomprehensible) attraction to Bassanio, and now armed with a clear ‘right answer’ under The Testamentary Code, she compromises her fidelity in favour of a personal Code she maintains throughout the play: fidelity to the specific individual whom one loves above all else. We can call Portia’s overriding code ‘The Marriage Code’. As the comedy progresses from her decision to cheat against two codes in favour of a higher one, The Marriage Code is more and more associated with a bond grafted physically onto the love object through its symbol, the Wedding Ring. The audience thus has learned three vital lessons about Portia’s Code, prior to her disguised intervention in the trial scene. First, she is willing to accept certain bizarre code provisions when she feels that there might be a good author behind them. This explains her choice in open court to accept as enforceable the terms of the bond generated by Shylock and Antonio. She does not object overtly to the ‘unconscionable’19 pound-of-flesh provision, just as she did not at first throw off her father’s outrageous dead-hand control over her marriage plans. Secondly, though, Portia will compromise even a Good Code when The Marriage Code supersedes it. Thus, to relieve her astonishingly over-invested new husband of his anxiety towards Antonio’s fate, Portia must intervene to save the merchant from apparent impending death. Although the best commentators have rightly denigrated her interpretive tactics in reading the bond provision to deny Shylock any blood or anything more or less than an exact pound of flesh,20 our analysis reveals the possibility of her trumping one code when a more important one would otherwise be jeopardised. And thirdly, we have learned from the casket subplot and from her willingness to intervene forcefully on behalf of her husband’s emotional wellbeing, the absence of which prevents the consummation of The Marriage Code,21 that Portia will not rest until that Code is fulfilled. It remains to emphasise a new Act 5 (as I have in detail elsewhere),22 and Portia’s surprise to find Antonio continuing to occupy (here, literally) her own space on Belmont. Hasn’t he had enough of tagging along with Bassanio? Of

19 Under current definitions, an unconscionable provision in a contract is one that an outside expert might see as ‘so one sided as to oppress or unfairly surprise [a] party’, Black’s Law Dictionary (5th edn, Minnesota, West, 1979). In this sense, The Testamentary Code is more oppressive than the jointly authored arm’s-length bond between Shylock and Antonio! 20 As held by Rudolf von Ihering, an early and distinguished supporter of Shylock’s position during the trial (see n 7 above), when no one raises the outrageousness of the penalty clause, the rest of the contract must be read honestly and, according to von Ihering and others in his wake, Portia’s reading of the contract is less than convincing. 21 Portia: ‘There are some shrewd contents in yond same paper / That steals the colour from Bassanio’s cheek: / Some dear friend dead; else nothing in the world could turn so much the constitution / Of any constant man’. These lines (3.2.251–5) mark Portia’s awareness, just after the happiest moment of her life, that her husband has received such terrible news as to delay until resolved the joyous consummation of their wedding oath. 22 Poethics, n 7 above, ch 10: ‘‘Then You Shall be his Surety’’.

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causing triangulation23 where direct obligation should be the operative paradigm? Of keeping Bassanio from herself? Who but Antonio, Portia must be thinking, convinced my husband to give away his new ring despite the younger man’s uncharacteristic hesitation to do so? And why is he still hanging around? Her decision to ‘scant this breathing courtesy’ (5.1.152) towards the interposing merchant is our first sign that she would have vastly preferred him to have stayed in Venice, celebrating the new life her efforts achieved for him and away from the baleful influence he will again try to exert over Bassanio. Yet that is exactly what happens, for when Portia demands Bassanio’s promise to keep his oath, when she reminds the audience of Shylock’s allegiance to his spouse’s ring24 and accepts nothing less from Bassanio from now on, Antonio grotesquely intervenes again: I once did lend my body for his wealth, Which but for him that had your husband’s ring Had quite miscarried. I dare be bound again, My soul upon the forfeit, that your lord Will never break faith advisedly. (5.1.249–52)

To which Portia can only reply, legalistically and with extreme if not bitter irony: ‘Then you shall be his surety’. (5.1.253) The Marriage Code abides no third-person interventions, certainly not before its consummation! Is Antonio forever bound to stand in for Bassanio, first (disastrously), in procuring the loan for his profligate friend, and now (more horrifying, still) on the oath and ring that sanctify the direct obligation of The Marriage Code! Portia wants Antonio gone, or at worst to stick around if he must while leaving his young friend to her, for once and for all.

CONCLUSION Codes found in stories help to structure action and to test character, and Shakespeare uses them often. The Merchant of Venice can be fruitfully approached by foregrounding the three Codes Portia invokes yet undermines, and the one true Code she preserves, which binds her to the Jew it paradoxically requires her to defeat: The Marriage Code.

23

Ibid. Shylock: ‘It was my turquoise; I had it of Leah when I was a bachelor. I would not have given it for a wilderness of monkeys’ (3.1.106–9);and see n 18 above.16 24

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Index

Please note: characters are listed in the main index; the plays are indexed under Shakespeare, William, works Aaron 16, 221–2 Achcar, G 201 Ackroyd, P 257 Act of Supremacy 1534 208, 209 1559 209–10 actor, and advocate’s art vi Adriana 23–4, 27, 30, 31, 33–4, 35 Ady, Endre 261 Aegeus, King 34 Aemilia 22–3 Aeschylus The Eumenidies 103 Oresteia 101–4, 105–6, 108, 116–17 Agamben, G 284 Agamemnon 102, 153 Agricola, Georg, De Re Metallica 143, 147, 148 Fig., 149, 150 Fig. Aguecheek, Sir Andrew 179 al-Queda 199–200 al-Zawahiri, Ayman 197 Alarbus 12 Albany, Duke of 163 alethurgy 271–3, 275 Ali, T 200–1 Ancient Monuments and Archaeological Areas Act 1979 203 Anderson, Sir Edmund 28 Andrews, ME 249 Angelo The Comedy of Errors 25–6, 28, 29, 30 Measure for Measure vi, 44, 45, 65–79, 282 and Claudio 69–72 and Isabella 66–9, 182 and justice of Duke 72–8

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on punishment 178 relationships 65–6, 78–9 Anne of Denmark 59 Annesley, Brian 168 Annesley’s Case 168, 169 anti-Popery 187–90 anti-Semitism see Jews, attitudes to Antipholus 23–7, 28, 29–30, 31, 33, 35 Antonio The Merchant of Venice v, 83, 238, 244, 245–9, 250–1, 277–8, 280, 281, 286 and The Public Code 290, 291–2, 293–5, 296 The Tempest 108, 111, 178 Antony, Mark 183 Arden family 193 Arden, Forest of 162 Arden, Mary 60 Aristotelian concepts 209, 216 Aristotle Nichomachean Ethics 182, 184 Politics 155 Arminianism 189 Ashcroft, Attorney-General 198, 199 assumpsit action 27–32 Astraea 207 Autolychus 178 Aylmer, Bishop 187, 209 Azo of Bologna 180 Azzam, Abdullah 197 Bacon, Sir Francis 178, 250 Badiou, A 274 Baker, Daniel 45 Baker, JH 27, 28, 29, 30–1 Baker, Samuel 192 Bakhtin, M 283 Bandello (author) 224–6 Banquo 196

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Index

Baptista 54–5 Barker, F 204–5 Barnadine 178 Bassanio 12, 238, 239, 244, 246, 274, 291, 294–5, 296, 297–8 Basset 83 Bassianus 208, 215 Bate, J 112, 211, 217, 257, 267 bawdy court see consistory court Beatrice 59, 60 Bell, M 17 Bell, Robert, Serjeant 140, 141–2 Belott v Mountjoy vii, 41, 54, 55 Belott, Stephen 41–2, 54, 55 Benedick 59 Benjamin, W 102, 103 Berowne 43 Bertram 44, 47, 49, 53–4 Bibó, I 262 bin Laden, Osama 186, 197, 198, 199–200, 201 black slavery 224–9 Blackstone, Sir William 249 Blair, Tony 200 blasphemy suit 46 Bloom, H 14 Boccaccio, Decameron 44 Bolingbroke, Henry 88 Bond 8, 12, 32–3, 41–2, 51, 84, 95, 99, 128, 246–9, 290–92, 297 bottomry bond 247–9 The Book of Common Prayer 58 Borachio 59 Borromeo, Cardinal, Spiritual Testament 193 Boykin, General William 198 Boynton, Andrew 97 Brabantio 14 Bracton, Henry de 180–2, 209, 245 Bradley, AC 163, 166 Brehon Law 9, 10 Brook, Peter 269 Brooks, P 122 brother/sister relationship 69–72 Brutus Julius Caesar 183 of Troy 217 Bunyan, John 188

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Burghley, Lord 143, 144, 165, 188 Burgundy, King of 163 Burke, Edmund, Reflections 190 Bush, George, President 186, 198 Bushy 86, 87–8, 179 Cade, Jack v Caius 162 Caius, Dr 58 Caliban 113–16 Camoöns, Luis Vaz de, Lusidadas 230 Campion, Edmund 193 canon law 209 Capulet 57, 124, 125, 127, 131–2 Case of Mines (Queen v Northumberland) 138–45 in Hamlet 145–57 Case of Saltpetre 156 Catesby family 193 Catesby, Robert 194 Catholic Church, attitudes to Jews 255, 263 Catholic dissent 144 Cavell, S 106 Cawdrey’s Case 209 Cecil, Sir Robert 168, 170 Celia 162 Chancery court See Court of Chancery Chandler, William 59 Charles I 189 Chettle, Henry 193 church consistory court see consistory court civil law v common law 168–9 Clark, Alice 44 Clarkson, PS 242 Claudio Measure for Measure 44, 53, 65–6, 67–8, 69–72, 73–8, 177 Much Ado About Nothing 47, 49, 59, 66 Claudius, King 146–7, 149, 151, 154, 155, 179 Cloten 58 Clown Hamlet 137, 151–3 Titus Andronicus 204–5 Clytemnestra 102 The Code 289–90

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Index 301 Coke, Sir Edward 8, 28, 86, 152 on common law 206 and Gunpowder Plot 191–2, 195 on inheritance 170, 172 on monarch’s power 205, 209–11, 212, 216 on punishment 178, 183 on seisin 242 and Troynovant 217–18 Coleridge, ST 66, 76 commedia dell’arte 273–4 common law v civil law 168–9, 216 and imperial government 207–12 and natural law 206 and prerogative courts 205 Company of Mineral and Battery Works 143 Company of Mines Royals 139 consideration 20–1, 97–8 and certainty 35–7 and credit network 26–7 and land law 20–1, 97–8 consistory court 41 blasphemy suit 46 jurisdiction 42 known as bawdy court 44 procedure 42–3 in S’s plays 43–4 and S’s vocabulary 43 Stratford cases 44–6 theatricality 47–9 women’s cases 46–50 contract, Renaissance era 128–9 see also consideration conveyance 96–7 copper, rights in 140–3 Cordelia 53, 162–5, 169 Cordell (Annesley’s Case ) 168 Coriolanus v, 111, 183 Cornwall, Duke of 163 Court of Chancery 161, 182–3 Court of High Commission 205, 209, 210 Court of Record 61 Court of Requests 41, 54 courts consistory see consistory court prerogative 205

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Cowell, John, Interpreter 19–20 credit network 26–7 Cressida 47 Cromartie, A 211–12 Cromsell, Oliver 187–8 crown, as prop 237 Darrell, Mary 55–6 de Grazia, M 155 Dedalus, Stephen 11–12 Dekker, Thomas, The Pleasant Comedie of Patient Grisill 53 Deloney, Thomas 52 democracy, and absolutism 123–5 Derrida, J 103 des Croix, Nicholas-Chrétien, Les Portugais Infortunés 224, 229–34 Desdomona 13–14, 15 detain, concept 27 ‘The Devil of the Vault’ (poem) 192 Diana 49 Dicey, A.V. 204 Dick the Butcher v Dickens, Charles 184 Digby, Sir Thomas 187 Doge 274, 275 Don John 47 Don Pedro 59 Donne, John 188 dowry 240 drama see theatre dramatic properties 237–9 Dromio(s) 23, 30, 31 Duke Frederick 16 Duke Solinus 22, 29–30, 35 Duke of Venice 275 Duke of Vienna 72–8, 177, 178, 179, 218 Duncan, King 194 Eagleton, Terry 187 Edgar 160, 166–7 Edmund 16, 166–7, 169–71 Egeon v, 22–6, 30–1, 33–4, 35 Egerton, John 170 Egerton, Thomas, Lord Chancellor (later Lord Ellesmere) 168, 170–1, 172 Egeus 56 Elbow vi

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Elizabeth, Queen 170 see also James I; royal prerogative and Case of Mines 138–9, 143–5, 146–7, 152, 156 imperial power 209–10 on Prince’s qualities 121 as Protestant queen 187, 188, 189 succession concerns 206, 207–8 and Troynovant 217 Elyot, Thomas 209 The Book Named the Governor 216 Emilia 13–14, 16 Empson, W 112 entailment 94–5 Eötvös, Károly 261 equivocation 185–6, 194–6 error, concept of 19–20, 34 Essex, Earl of 165, 170, 172, 188, 191 Eucharist sacrament 250–1 Evans, Sir Hugh 58 Exchequer Chamber 20 exclusion drama 113–16 Falstaff vi, 17, 177 Fawkes, Guy 186 Fenton, Master 58, 60 Ferrex 169, 207–8 Feste vi fifth of November 192 Fish, S 273 Fitzherbert, Anthony 28 Florizel 53, 58 Foakes, RA 204 Fool 160 Ford, Master Frank 44, 58 Forest of Arden 162 Fortescue, Sir John De Laudibus Legum Angliae 168–9 The Governance of England 211–12 and Troynovant 217 Fortinbras 17 Foucault, M 179, 271–2, 273, 284 Foxe, John, Book of Martyrs 187 France, King of 164 Frauds, Statute of (1677) 243 Frederick, Duke 16 Frye, N 177

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Gaius, Institutes 162 Garnet, Father Henry 187, 190 equivocation 185–6, 195 Garnett, John 201–2 Gaunt, John of 85–6 Gerard, Gilbert, Attorney-General 138 Gertrude 147–8, 151 Gesta Grayorum 32–3 Getley, Katherine 45 ghetto of Venice 250 Ghost 138, 147 Giovanni, Ser, Il Pecorone 246, 248 Girard, R 15, 106 Glaucon 164 Gloucester, Duchess of (Richard II) 85 Gloucester, Earl of (King Lear) 43, 166–8, 170 Goneril 160, 163–4, 169 Gonzalo 110–12 Googe, Barnabe 55–6 Gratiano 238, 239 grave-digging Clown 137, 151–3 Gray’s Inn 32–4 Green (character) 179 Greenblatt, S 108 Greene, Thomas 59 Greville, Sir Edward 62 Grissell, Patient 53 Gross, K 294 Grotius, Hugo 128–9 Guildenstern 145–7, 149 Gunpowder Plot 180, 186–7, 190–6 Guy, J 208, 216 Gyulafehérvar 260 Hal, Prince vi Hale, Sir J 254–5, 262–3 Hales v Petit 137, 151 Hall, John 61–2 Hall, Susannah 44 Hall, William 61 Hamlet 17, 160 and Case of Mines 138, 145–57 on culpability 181–2, 183 Hancocks, Isabella 61 Hare, David, Stuff Happens 198, 200 Harrington, Sir John 189 Hart, William 61

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Index 303 Harvey, Sir William 168 Hathaway, Ann(e) 41, 51, 59, 60, 61 Hathaway, Bartholomew 61, 62 Hathaway, Richard 52, 61 Haug, Langnauer & Company (a firm) 139 Hegel, George 101–2, 103, 285 Helen of Troy 11, 16 Helen (Helena) All’s Well That Ends Well 44, 49, 53 Henry III 180 Henry IV King of England 88 King of France 233 Henry V v, 177, 179 as Prince Hal vi Henry VI 52, 212 Henry VIII 208, 217 Herbert, George 188 Herculean ideal 73–4, 79 Hermia v Hermione vi, 44, 49 Hero 43, 49, 59 Heywood, Thomas 203 High Commission Court 205, 209, 210 Hitler, Adolf 264 Hobart, Henry, Attorney-General 156–7 Hobbes, Thomas 105, 106, 111 Behemoth 190 Leviathan 189 Hochstetter, Daniel 139, 144 Hoghton family 193 Holdsworth, WS 8 Holinshed, Chronicles 163 Holmes, S 78 Holocaust 264–6, 267, 269 Hooker, Richard, Laws of Ecclesiastical Polity 188, 209, 213–14, 215, 216 Horatio 138 Hughes, Ted 193 humiliation motive Le More Cruel 224–9 Les Portugais Infortunés 229–34 Hungarian anti-Semitism 263–6, 269 Hunt v Bate 97 Iachimo 44

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Iago 11, 47, 169 Ibbetson, D 27 Imogen 58 imperial government, and common law 207–12 inheritance legal traditions 161–5 missing trusts 166–72 Safety of Inheritances 156 Inner Temple 32–4, 169 Inns of Court, disamity 32–4 Inquisition of Venice 25 Iphegenia 153 Isabella 65–79 brother/sister relationship 69–72 on culpability 182 and justice of Duke 72–8, 179 relationships 65–6 role 78–9 virtuousness 66–9 Iser, W 121 Jack of Newbury 52 Jacquenetta 43 Jaffa, H 162–3 James I, of England (VI of Scotland) 59, 156, 160, 170, 196 see also Elizabeth, Queen; Mary Stuart constitutional debates 164 and Gunpowder Plot 190–1 on justice 183 succession issue 144–5, 153, 156 Jessica 239 Jesuits 185, 188 Jews, attitudes to Christian attitudes 255 first ghetto 250 late 16th C England 253–4, 255, 256–7 late 19th/early 20th C 258 renaissance Europe 254–5 jihad 197, 199, 201 John, Don 47 Johnson, Ben, The Devil is an Ass 243 Jones, WJ 170 Jonson, Ben, Volpone 9, 11 Joyce, James, A Portrait of the Artist as a Young Man 11 Judicature Acts 1873–75 161

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Index

Juliet Measure for Measure 44, 73, 76, 177 Romeo and Juliet 57, 124, 125, 128, 129–30 Justinian Corpus Juris Civilis 162 The Digests 180, 212 Kallipolis 164 Katherine of Aragon v Katherine (Kate), The Taming of the Shrew 43, 49, 54–5, 127 Kent, Earl of 160, 161–2, 164 Kentish Forest 162 Kentish Gavelkind 161–2, 168 kingship see regicides; royal prerogative Kornstein, Daniel 169 Kornstein, DJ 250 Kott, J 269 Lady Macbeth 195 Laertes 154, 181 Lambard, William, Eirenarcha 175–6, 178, 179–82 Lambert, Edmund 171 land law 83, 85, 241 consideration 20–1, 97–8 conveyance 96–7 entailment 94–5 perpetual freehold 95 possession see possession reversion 87–8, 89–92 las Casas, Bartolomé de 226 Lavinia 214–15, 219 law civil v common 168–9 as dramatic discourse 221–2 interpretation principle 140 linguistic universal v personal 122–3 moots, dramatic use 222 and nature 109–10 tragedy of 105–7 law-positing 102 Lawrence, Friar 43, 57, 131 Leah 239 Lear, King v, 53, 105, 183 on inheritance 166–9 on succession 162–5

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on theatre as trial 160 legal codes 290 Lennard, John 55–6 Leonato 59–60 Leontes, King 53, 109, 177–8 Levine, Mortimer 145 lex Porcia 240 lex talionis 224, 226 literality, as weapon 224 livery of seisin 97, 241–4 Livy, Roman History 206, 217 Lockey, BC 106–7 Lopez, Dr Roderigo 254 Lord Dudley v Lord Powles 28 Lucentio 55 Lucio 65, 67, 76 Lucius 218, 219 Lucrece 31 Lupton, J 114–15 Luther, Martin, Against the Jews and their Lies 255 Macaulay, TB 191 Macbeth 169, 184, 194 equivocation 195–6 Macbeth, Lady 195 McDonald, Russ 194 Macduff 196 Machiavelli 116, 121, 169 Maffei, Father, Historiarum Indicarum 230 Magna Carta 139–40, 143, 219 Mahood, MM 280 Maitland, FW 8 Malone, E 145 Malvolio 179 Malynes, Gerard, Consuetudo vel Lex Mercatoria 248 Mamillius 178 mancipatio 244–5 Marcellus 149 Marcus Andronicus 207, 214–15 Margaret of Anjou 52 Mariana 44, 49, 53, 73–8 Mark Antony 183 Marriage Code 290, 296–8 marriage contract 51–63, 125–7, 128–9 by proxy 59–60 dowry 240

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Index 305 in dramaturgy 53–4, 58–9 negotiation/settlement 52–3, 54–7, 60 role of ‘friends’ 51–2 solemnisation/consummation 57–8, 127 sponsalia 125–7 in S’s family 60–3 Marvell, Andrew 187–8 Marx, Karl 10, 11, 17 Mary Stuart, Queen of Scots 161, 190 Mary Tudor, Queen 163, see also Elizabeth, Queen masque, use of 112–13 Matua, M 200 Melville, Herman 197 Menenius 211 Merchant, Statute 247 Mercutio 132 Mermaid Tavern 193 metals, rights in 140–3 Milton, John 188 Eikonoclastes 189, 191 mining see also Case of Mines terminology 147–51 value distinctions 140–4 Molière, Don Juan 274 monarch see regicides; royal prerogative Montague 57, 127 Montaigne De l’affection des pères aux enfants 166–72 Essais 19, 111, 230, 232, 234 the Moor in Bandello 224–6 More Cruel 226–9 moots, dramatic use 222 More Cruel see Tragédie Francaise d’un More Cruel More, Sir Thomas, Utopia 219 Mountjoy, Christopher 41, 42, 54, 55 Mountjoy, Marie 41–2, 54 Mowbray, Thomas 85 Muldrew, C 26 musicality 212–16 Nashe, Thomas 1–2 Nazi ideologies 258, 261 Neoplatonic humanism 216–17

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Nerissa 13, 239, 240 Newbury, Jack of 52 Newlands 138, 139 Nicholl, C 41 Norman ‘Lamond’ 154 Northern Rising 143–4 Northumberland, Earl of Case of Mines 138, 143–4 Richard II 88 Norton, Thomas 189 The Tragedie of Gorboduc 169, 207–8 November the fifth 192 Nussbaum, M 183, 184 Nuttall, AD 9, 14 Oberon 11 Oedipus (Oidipous) 271–3, 274, 275 Oliver 162, 168 Ophelia 151, 154 Oresteia 101–4, 105–6, 108, 116–17 Orestes 102–3 Orlando 162, 168 Orpheus 215 Oswald 164 Othello 11, 15, 16, 47, 183 Ovid, Metamorphoses 153, 157 Owen, Thomas 28 Page, Anne 58, 60 Pantaloon (commedia dell’arte) 273–4 Paris (character) 57, 125 Parolles 49 Parsons, T 285 partem pro toto principle 237, 239, 241, 247, 249, 250–1 pastoral utopia 110–12 pater familias 127 Paulina 178 Pedro, Don 59 Pepys, Samuel 192 Perdita 53, 58 Perillus 161 Petruchio 43, 54 Philip II, of Spain 163 Philip and Mary, King and Queen 138, 140 Plato The Laws 213 Neoplatonic humanism 216–17

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on order 206 Republic 164, 212–13 Plautus 25 Pleonexia 164 Plowden, Edmund, Commentaries or Reports 85, 89–92, 151 on Case of Mines 138, 140, 142–5, 156–7 ‘Succession Treatise’ 144–5, 153 Plutarch, Lives 206 Poliakov, L 254 polis, and law 102–3, 105 Pollock, F 8 Polonius 146, 151, 159, 172, 182 Pompey Bum 177 Popery, anti- 187–90 Popham, Sir John, Lord Chief Justice 27, 28, 180 Porrex 169, 207–8 Porter 194–5 Porter, Henry, Two Angry Women of Abingdon 47 Portia vi, 12–13, 83–4, 99, 179, 277, 282, 291–2, 294 and Marriage Code 290, 296–8 portrait of 246 ring of 239–44 and Testamentary Code 290, 295–6 Les Portugais Infortunés 224, 229–34 possession 86–7, 88, 89, 92 poetics of 92–9 and seisin 98–9 Posthumus 47, 58 ‘pound of flesh’ see under Shylock Powder Plot see Gunpowder Plot prerogative courts 205 prerogative rights see royal prerogative Priam 11 Prince of Verona 119–25, 131–3 printing technology 217 Private Code 290, 291–2, 296, 297, 298 props see dramatic properties Prospero 15, 107–9, 110–17, 177 Proteus 43 Prynne, William 189 Public Code 290, 293–5 Pulzer, P 261, 262 Pund, R 129 punishment theory

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in Renaissance 175–7 and retribution 179–84 utilitarianism 177–9 Puttenham, The Arte of English Poesie 189 Queen v Northumberland see Case of Mines Queen’s Counsel 138, 140, 141 Quickly, Mistress 58 ‘quilful’ amount 143, 155 Quiney, Elizabeth 59 Quiney, Richard 62, 63 Quiney, Shakespeare 63 Quiney, Thomas 45–6, 62–3 Raffield, P 168–9 Raleigh, Sir Walter 191 Rasperger, Christoph, Ducentae Paucorum 250 Ravasz, Bishop László 263–4 Rechsetzung 102 recusant Catholicism 193 Reformation anti-Popery 187–90 attitudes to Jews 255, 263–4 Elizabethan 189 statutes 187 Regan 160, 163–4, 169 regicides 191–2, 194 Reilly, T 161, 162 retribution 179–84 revenge motive 224–9 reversion 87–8, 89–92 Richard II 85–9, 92, 140 Richard III 169 Richardson, John 51–2 Riefer, M 76 Roman canon law 209 romance plays 101–17 background 101 comedy of forgiveness 116–17 exclusion drama 113–16 law and nature 109–10 magic 107–9 Oresteia contrast 101–4 pastoral utopia 110–12 rituality 104 tragedy of law 105–7

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Index 307 use of masque 112–13 Romeo 10, 11, 15, 57, 119, 130–1 Rorty, R 275 Rosalind 14, 57, 162, 164–5 Rose Theatre Trust 203, 205 Rosencrantz 145–6, 149 Ross, C 8 royal prerogative 138–41, 144–5 see also Elizabeth, Queen Coke on monarch’s power 205, 209–11, 212, 216 and common cause 151–7 king’s position in Hamlet 145–51 value distinctions 140–4 Rutter, C 69 Sackville, Thomas, The Tragedie of Gorboduc 169, 207–8 Sadler, Hamlet and Judith 45 Sadler, Judith 45 Safety of Inheritances 156 Said, E 198, 199 St German, Christopher, Doctor and Student 97, 98–9, 209, 212 Salarino 274 Salerio 238, 246 Salisbury, Lord 191 saltpetre 156 Sandells, Fulke 51–2 Saturninus, Emperor 204–5, 212, 214, 218 Saunders’ Case 137 Saunders, TJ 213 Schoenbaum, S 62 Scroop, Lord 179 Sebastian 111, 178 Sectus Empiricus 19 seisin 98–9 livery of 241–4 September 11th 187, 197–201 Serédi, Cardinal Jusztinian 263 Serjeant’s Inn 143 Shakespeare, Ann(e) see Hathaway, Ann(e) Shakespeare, Edmund 61 Shakespeare, Gilbert 61 Shakespeare, Joan 45, 61 Shakespeare, John 60, 171 Shakespeare, Judith 45, 62 Shakespeare, Richard 45

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Shakespeare, Susannah 61–2 Shakespeare, William alteration of will 45–6 and anti-Semitism 256–7 family members see under Arden; Hall; Hart; Hathaway; Quiney fascination with law v-vii inheritance suit 171 as lawyer’s clerk 137 marriage 41, 51 marriages in family 60–3 religious affinities 193–4 role in Mountjoy case 41–3, 49, 54 works: All’s Well That Ends Well 47, 49, 53 As You Like It 14, 15, 16, 57, 162, 164–5, 168, 171–2 The Comedy of Errors v, vii, 20–37 as comment on cost/loss 34–7 fatalism of 22–7 and legal pessimism 27–34 Coriolanus v, 105–7, 109, 113, 211 Cymbeline 44, 47, 58, 101, 107, 211 Hamlet vi, 14, 15, 137–8, 159–60, 164, 179 and Case of Mines 145–57 Henry IV Part 1 v Henry IV Part 2 v Henry V v, 179, 193, 194, 238 Henry VI Part 1 v, 52, 83 Henry VI Part 2 v Henry VIII v, 187, 193 Julius Caesar 105, 106 King Lear v, 10, 15, 16, 17, 43, 109, 159–72 inheritance, missing trusts 166–72 role of theatre in 159–61 succession, legal traditions in 161–5 Love’s Labour’s Lost 43, 63 Macbeth 10, 15 and equivocation 194–6 and Gunpowder Plot 192–3, 194–6 performances on ‘the Fifth’ 192 Measure for Measure v, vi, 44, 45, 47, 49, 53, 60, 65–79, 126, 218

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308

Index

Shakespeare, William (Continued) Works (Continued) see also Angelo; Isabella adjudicative relationships 72–8 brother/sister relationship 69–72 choices in 66–9 conclusions 78–9 and punishment 176, 177–9 relationships in 65–6 scales in 244–5 uncommitted acts 282 The Merchant of Venice v, 8, 12, 83–5, 99–100, 128, 171–2 see also Portia; Shylock in Central and Eastern Europe, post-1945 267–9 dramatic properties in 237–9 invisible community in 283–5 and Jewish/Christian legalism 285–7 legal ambiguity 222 legalistic codes in 290–8 and popular constructions of the Jew 256–8, 269–70 and punishment 176, 178, 183 Venice of 273–6 The Merry Wives of Windsor v, 44, 58–60, 177 A Midsummer Night’s Dream v, 11, 56 Much Ado About Nothing 43, 49, 59, 60 Othello 13, 14, 47 Pericles 101 The Rape of Lucrece 31, 41 Richard II v, 85–9, 92, 145, 179 Richard III 10, 193 Romeo and Juliet 43, 119–33 absolute power v personal law 122–3 concept of mutiny 119–20, 124, 127–31 figure of Prince 119–25, 131–3 marriage contract in 57, 125–7, 128–9 pater familias in 127 word play 129–32 Sonnets 16, 92–9

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74 93–5 87 95–9 The Taming of the Shrew 43, 48–9, 127 The Tempest 14–15, 101, 107–17, 177–8 Caliban 113–16 comedy of forgiveness 116–17 magic in 107–9 masque 112–13 nature of law 109–12 Timon of Athens 11 Titus Andronicus 11, 16, 225, 227 and executive power 203–7 harmony in 212–16 imperial government and common law 207–12 and Troynovant 207, 216–20 Troilus and Cressida vii, 11, 14, 47 Twelfth Night vi, 179 The Two Gentlemen of Verona 43 Venus and Adonis 41 The Winter’s Tale v, 44, 49, 53, 58, 101, 109, 177–8 Shallow, Justice vi, 58 Sharington v Strotton 97–8 Shingleton, Katherine 44 Shylock v, vi, 12–13, 14, 15, 169 appeal to law 83–4, 99–100 as character 257 and commedia dell’arte 273–4 contract 128 conversion of 250–1, 293, 294 exclusion 238–9 explanation of conduct 279–82 humanist sentiments 263, 270 and Jewish/Christian legalism 285–7 ‘pound of flesh’ 12–13, 238, 241, 245–9, 250–1 literality of 276–9 preordained incumbencies 282–3, 285 and Private Code 290, 291–2, 296, 297, 298 significance of name 273n waiver of interest 244 Sidney, Sir Philip 178–9 Defence of Poesy 189, 207–8 Silvia 43

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Index 309 Simple, Peter 58 Simpson, AWB 27, 96–7 Sir Anthony Roper’s Case 210 Slade’s Case 27–30, 35 slavery black 224–9 status of slave 279–80 Slender, Abraham 58 Smith, Sir Thomas 216 Sofer, A 250 Sokol, BJ and M 8, 161 Solinus, Duke 22, 29–30, 35 Sophocles, Oidipus tyrannos 271–2 Southampton, Earl of 165, 168, 172 Sparke, Alice 170 specific performance 7–18 definition 7 emotional investment 12–14 monetary value 9–11 practice 8–9 questionings 14–18 specific investments 11–12 Speed, John 194 Spenser, Edmund 9 The Faerie Queen 20, 107, 188–9, 217, 219, 243 sponsalia 125–7 Statute of Frauds 1677 243 Statute Merchant 247 Statute of Uses 1536 96–7, 243 Stone, L 165 Stratford Court of Record 41 Peculiar 62 Stuart, Henry 183 Stuart, Mary, Queen of Scots 161, 190 succession legal traditions 161–5 state issue 144–5, 153, 156 Suffolk, Duke of 52 Supremacy, Act of 1534 208, 209 1559 209–10 synecdoche 221–2, 237, 239, 245, 249

terrorism and equivocation 185–6, 194–6 Gunpowder Plot 180, 186–7, 190–6 War on 197–202 Testamentary Code 290, 295–6 theatre actor and advocate’s art vi definition of purpose 159–60, 164 dramatic properties 237–9 exclusion drama 113–16 law as dramatic discourse 221–2 moots, dramatic use 222 Thersites 11 three witches 195–6 Throckmerton v Tracy 89–92 Thucydites 164 Thurland, Thomas 139, 140, 144 Timon 10 Tiszaeszlár 261 Titania 11, 15–16 Titus Andronicus 207, 211, 212, 214, 215–16, 219–20 dramatic discourse 221–2 Tolstoy, Leo 163 Tracey, Richard 89–92 traditio 245 Tragédie Francaise d’un More Cruel 223–4 Tranjo 55 Transylvanian anti-Semitism 259–60 and Jewish emancipation 259–61 1918–1945 262–6 post-1945 267–9 Treatise on the King’s Prerogative 138 Trevor-Roper, H 165 Trinculo 115 Troilus 14 Trout, Katherine 45 Troynovant 207, 216–20 The True Chronicle Historie of King Leir 161 Tudor, Mary, see also Elizabeth, Queen Tudor, Mary, Queen 163 Tybalt 125, 127, 131

Talion Law 224, 226 Les Terms de la Ley 19

Uses, Statute of (1536) 96–7, 243 utilitarianism 177–9

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vengeance motive Le More Cruel 224–9 Les Portugais Infortunés 229–34 Venice city of Merchant of Venice 273–6 Inquisition and ghetto 250 Venice, Duke of 275 Vienna, Duke of 72–8, 177, 178, 179, 218 Virgil Aeneid 206 Georgics 165 Walmsley, Thomas 28, 32 Walsingham’s Case 89 War on Terror 197–202 Ward, I 16 Warren, CT 242 Webster, John The Devil’s Law Case 47, 243

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The White Devil 47 Weisberg, R 249, 286–7 West, William, Symboleography 241, 247 Wheeler, Margaret 45, 62–3 William of Orange, Prince (latter William III) 192, 201 Williams, Joshua 242 witches 195–6 Womack, P 9 women see also marriage contract cases in consistory courts 46–50 Wood, M 256 Worcester, consistory court 41, 44 York, Duke of 88–9 al-Zawahiri, Ayman 197 Zizek, S 199

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