The Law in Shakespeare (Early Modern Literature in History)

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The Law in Shakespeare Edited by

Constance Jordan and Karen Cunningham

Early Modern Literature in History General Editors: Cedric C. Brown, Professor of English and Dean of the Faculty of Arts and Humanities, University of Reading; Andrew Hadfield, Professor of English, University of Sussex, Brighton Advisory Board: Donna Hamilton, University of Maryland; Jean Howard, University of Columbia; John Kerrigan, University of Cambridge; Richard McCoy, CUNY; Sharon Achinstein, University of Oxford Within the period 1520–1740 this series discusses many kinds of writing, both within and outside the established canon. The volumes may employ different theoretical perspectives, but they share an historical awareness and an interest in seeing their texts in lively negotiation with their own and successive cultures. Titles include: Andrea Brady ENGLISH FUNERARY ELEGY IN THE SEVENTEENTH CENTURY Laws in Mourning Jocelyn Catty WRITING RAPE, WRITING WOMEN IN EARLY MODERN ENGLAND Unbridled Speech Dermot Cavanagh LANGUAGE AND POLITICS IN THE SIXTEENTH-CENTURY HISTORY PLAY Danielle Clarke and Elizabeth Clarke (editors) “THIS DOUBLE VOICE” Gendered Writing in Early Modern England James Daybell (editor) EARLY MODERN WOMEN’S LETTER-WRITING, 1450–1700 Jerome De Groot ROYALIST IDENTITIES John Dolan POETIC OCCASION FROM MILTON TO WORDSWORTH Tobias Döring PERFORMANCES OF MOURNING IN SHAKESPEAREAN THEATRE AND EARLY MODERN CULTURE Sarah M. Dunnigan EROS AND POETRY AT THE COURTS OF MARY QUEEN OF SCOTS AND JAMES VI Andrew Hadfield SHAKESPEARE, SPENSER AND THE MATTER OF BRITAIN William M. Hamlin TRAGEDY AND SCEPTICISM IN SHAKESPEARE’S ENGLAND

Elizabeth Heale AUTOBIOGRAPHY AND AUTHORSHIP IN RENAISSANCE VERSE Chronicles of the Self Constance Jordan and Karen Cunningham (editors) THE LAW IN SHAKESPEARE Claire Jowitt (editor) PIRATES? THE POLITICS OF PLUNDER, 1550–1650 Pauline Kiernan STAGING SHAKESPEARE AT THE NEW GLOBE Arthur F. Marotti (editor) CATHOLICISM AND ANTI-CATHOLICISM IN EARLY MODERN ENGLISH TEXTS Jean-Christopher Mayer SHAKESPEARE’S HYBRID FAITH History, Religion and the Stage Jennifer Richards (editor) EARLY MODERN CIVIL DISCOURSES Sasha Roberts READING SHAKESPEARE’S POEMS IN EARLY MODERN ENGLAND Rosalind Smith SONNETS AND THE ENGLISH WOMAN WRITER, 1560–1621 The Politics of Absence Mark Thornton Burnett CONSTRUCTING “MONSTERS” IN SHAKESPEAREAN DRAMA AND EARLY MODERN CULTURE MASTERS AND SERVANTS IN ENGLISH RENAISSANCE DRAMA AND CULTURE Authority and Obedience The series Early Modern Literature in History is published in association with the Renaissance Texts Research Centre at the University of Reading.

Early Modern Literature in History Series Standing Order ISBN 0–333–71472–5 (outside North America only) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England

The Law in Shakespeare Edited by

Constance Jordan and

Karen Cunningham

Selection and editorial matter © Constance Jordan and Karen Cunningham 2007; individual chapters © contributors 2007 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published in 2007 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978–1–4039–9214–7 hardback ISBN-10: 1–4039–9214–2 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data The law in Shakespeare / edited by Constance Jordan and Karen Cunningham. p. cm. ISBN 1–4039–9214–2 (cloth) 1. Shakespeare, William, 1564–1616 – Knowledge – Law. 2. Law – Great Britain – History – 16th century. 3. Law – Great Britain – History – 17th century. 4. Lawyers in literature. 5. Law in literature. I. Jordan, Constance. II. Cunningham, Karen, 1946– PR3028.L39 2007 822.3⬘3—dc22 10 9 8 7 6 5 4 3 2 1 16 15 14 13 12 11 10 09 08 07 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

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Contents Acknowledgments

vii

Notes on Contributors

viii

1 English Law in Shakespeare’s Plays Constance Jordan and Karen Cunningham

1

2 Drama, Law, and Rhetoric in the Age of Coke and Shakespeare Allen D. Boyer

20

3 The Wilde Side of Justice in Early Modern England and Titus Andronicus Dympna Callaghan and Chris R. Kyle

38

4 “Like to a Tenement”: Landholding, Leasing, and Inheritance in Richard II William O. Scott

58

5 Cast out of Eden: Property and Inheritance in Shakespearean Drama Nancy E. Wright and A. R. Buck

73

6 Avoiding the Issue of Fraud: 4, 5 Philip & Mary c.8 (the Heiress Protection Statute), Portia, and Desdemona Charles Ross 7 Accomplished with What She Lacks: Law, Equity, and Portia’s Con Thomas C. Bilello

91

109

8 Drama and Marine Insurance in Shakespeare’s London Luke Wilson

127

9 Noises Off: Participatory Justice in 2 Henry VI Lorna Hutson

143

10 Truth, Lies, and the Law of Slander in Much Ado About Nothing Cyndia Susan Clegg v

167

vi

Contents

11 The “Amending Hand”: Hales v. Petit, Eyston v. Studd, and Equitable Action in Hamlet Carolyn Sale

189

12 Macbeth: Absolutism, the Ancient Constitution, and the Aporia of Politics Peter C. Herman

208

13 Arms and Laws in Shakespeare’s Coriolanus Rebecca Lemon

233

14 Measure for Measure and the Law of Nature Elizabeth Hanson

249

Index

266

Acknowledgments Thomas C. Bilello’s “Accomplished with What She Lacks: Law, Equity, and Portia’s Con” appeared originally in Law and Literature, 16:1 (Spring 2004), 11–32, copyright The Cardozo School of Law Yeshiva University. A condensed version is reprinted here with permission. William O. Scott’s “Landholding, Leasing and Inheritance in Richard II” appeared originally in SEL: Studies in English Literature, 42:2 (Spring 2002), 275–92. A condensed and updated version is printed here with permission.

vii

Notes on Contributors Thomas C. Bilello is an attorney with Pacific Life Insurance Company in Newport Beach, California, and specializes in insurance law and regulatory compliance. He received his BA from the University of California, Los Angeles, his JD from Harvard Law School, and his MA in English from the University of California, Irvine. Allen D. Boyer is a lawyer in New York City. He serves on the advisory board of the Yale Center for Parliamentary History and is the author of Sir Edward Coke and the Elizabethan Age (2003), among other studies in legal history. A. R. Buck teaches law at Macquarie University, Australia. He is the editor of the Australian Journal of Legal History. His recent publications include the coedited books The Poor Man: Law and Satire in Nineteenth Century New South Wales (2005) with Nancy E. Wright, and Women, Property, and the Letters of the Law in Early Modern England (2004) with Nancy E. Wright and Margaret W. Ferguson. Dympna Callaghan, Dean’s Professor in the Humanities at Syracuse University, is the author of more than thirty articles and seven booklength publications, including monographs and edited collections. She has been a visiting professor for the British Academy and has held fellowships at the Getty Research Center, Clare Hall Cambridge, the Folger Shakespeare Library, the Newberry Library, Hughes Hall Cambridge, and the Huntington Library. Cyndia Susan Clegg, Distinguished Professor of English at Pepperdine University, has published articles on Shakespeare in Shakespeare Quarterly, the Ben Jonson Journal, and Blackwell Shakespeare companion volumes. Her books include The Peaceable and Prosperous Regiment of Blessed Queene Elizabeth (2005), Press Censorship in Jacobean England (2002), and Press Censorship in Elizabethan England (1997). She has published several articles on print culture as well. Karen Cunningham is a lecturer in Shakespeare and Early English Literature at the University of California at Los Angeles. Her articles have appeared in Publications of the Modern Language Association, Shakespeare Quarterly, Exemplaria, Journal of Medieval and Renaissance viii

Notes on Contributors ix

Studies, Renaissance Drama, and the Blackwell Shakespeare companion volumes. She is the author of Imaginary Betrayals: Subjectivity and the Discourses of Treason in Early Modern England (2002). Elizabeth Hanson is Associate Professor of English at Queen’s University, Canada. She is the author of Discovering the Subject in Renaissance England (1998) as well as articles on the literature and culture of early modern England. Peter C. Herman is Professor of English and Comparative Literature at San Diego State University. He has published two books, Destabilizing Milton: “Paradise Lost” and the Poetics of Incertitude (2005) and Squitter-wits and Muse-haters: Sidney, Spenser, Milton and Renaissance Antipoetic Sentiment (1996), and has edited a number of anthologies, including Approaches to Teaching Milton’s Shorter Poetry and Prose (forthcoming), Historicizing Theory (2004), and Reading Monarchs Writing: The Poetry of Henry VIII, Mary, Queen of Scots, Elizabeth I, and James VI/I (2002). His essays have appeared in such journals as Renaissance Quarterly, Studies in English Literature, and Criticism. The essay in this volume is part of a larger project on the Ancient Constitution and early modern literature. Lorna Hutson is Berry Professor of English Literature at the University of St. Andrews, Scotland. She is the coeditor, with Victoria Kahn, of Rhetoric and Law in Early Modern Europe (2001) and is currently working on a book entitled The Invention of Suspicion: Forensic Realism in Renaissance Drama. Constance Jordan is Professor Emeritus of English at Claremont Graduate University. She is the author of Renaissance Feminism: Literary Texts and Political Models (1990) and Shakespeare’s Monarchies (1997). She is a coeditor of The Longman Anthology of British Literature (2000, 2003, 2006). Chris R. Kyle is Associate Professor of Humanities in the History Department at Syracuse University, where he teaches history and law. He is the author of Theatre of State (forthcoming), is editing two parliamentary diaries of 1593 and 1626 for publication, and has recently published two books on early modern parliaments. He has held fellowships at the Huntington Library and is the American editor of Parliamentary History. Rebecca Lemon, Associate Professor of English at the University of Southern California, is the author of Treason by Words: Literature, Law and Rebellion in Shakespeare’s England (2006). Her articles have appeared

x

Notes on Contributors

in Theatre Journal, Studies in English Literature, The Huntington Library Quarterly, Women and Culture at the Courts of the Stuart Queens, edited by Clare McManus (2003), and New Critical Essays on “Macbeth,” edited by Nick Moschovakis (2006). Charles Ross is Professor of English and Chair of the Program of Comparative Literature at Purdue University. His most recent books are a translation of Statius’s Thebaid (2004) and Elizabethan Literature and the Law of Fraudulent Conveyance: Sidney, Spenser, Shakespeare (2003). He is also the author of The Custom of the Castle from Malory to Macbeth (1997) and a translation of Boiardo’s Orlando Innamorato (1989; rev. 2004). A graduate of Harvard College, he received his PhD degree from the University of Chicago and a JD degree from the evening division of the Indiana University at Indianapolis School of Law. Carolyn Sale is Assistant Professor of English Literature at the University of Alberta, Canada. Her recent publications include “The ‘Roman Hand’: Women, Writing and the Law in Att.-Gen v. Chatterton and the Letters of Lady Arabella Stuart,” in English Literary History, and “Slanderous Aesthetics and the Woman Writer: The Case of Hole v. White,” 2005 in Redefining British Theatre History, edited by Peter Holland and Stephen Orgel. She is currently working on a book entitled Contested Acts: Legal Performances and Literary Authority in Early Modern England. William O. Scott is Professor of English at the University of Kansas. His publications on legal topics in Shakespeare include essays on King Lear, The Merchant of Venice, and As You Like It. Luke Wilson is Associate Professor of English at Ohio State University. He is the author of Theaters of Intention: Drama and the Law in Early Modern England (2002) and of articles on Shakespeare, Webster, Chapman, and Bacon. He is currently working on a book on legal jurisdiction and literary authority. Nancy E. Wright is Professor of Humanities and Languages at the University of Western Sidney, New South Wales, Australia. Her recent publications include the coedited books The Poor Man: Law and Satire in Nineteenth Century New South Wales (2005) with A. R. Buck, and Women, Property, and the Letters of the Law in Early Modern England (2004) with A. R. Buck and Margaret W. Ferguson.

1 English Law in Shakespeare’s Plays Constance Jordan and Karen Cunningham

The essays in this collection proceed from a common assumption: that Shakespeare’s plays reproduce and refashion contemporary ideas of established law, both common and civil, and its penumbral reflections in custom, morals, and political thought. Shakespeare gives us many kinds of cues: Dick the Butcher’s famous battle cry in 2 Henry VI (1597), “The first thing we do, let’s kill all the lawyers,”1 warns us to attend to the law’s discriminations of rank and class; the trial of Shylock in The Merchant of Venice (1596) moves us to assess English ideas of equity; and the peculiar magistracy of Angelo in Measure for Measure (1604) prompts us to find precedents to critique law’s literalism, its reliance on the letter. Like the law courts, Shakespeare’s theater was a place of trial and testing, and law, like theater, relied on narratives that posited and analyzed conceptions of motive, character, intention, and origin. Both complex and complementary, these literary and legal narratives drew on established as well as emerging principles of social organization. Refusing to sever legal from other social and political practices, the theater represented law in competition with other institutions to settle matters of class, gender, and the power and authority of the kingdom’s various offices. The discourses of law embraced the rhetoric and oratory of the stage and sought to convince judge and jury by using the arts of persuasion. Typically, the characters of drama inhabited a multivocal world, rich with noises that gave delight and hurt not. The worlds created by legal discourses were comparably saturated with conflict and dissonance, by agreement and harmony. Statutes are contradicted by proclamations, which in turn are contradicted by judges of individual cases, who in turn may be contradicted by a jury resisting a judge’s view. A recalcitrant defendant might subvert the whole process. Case law might corroborate or gainsay written law; precedents might be invoked, 1

2 Constance Jordan and Karen Cunningham

disputed, and found irrelevant. Stanley Fish has remarked that the “law wishes to have a formal existence,” to be a self-contained, organic thing that does not need supplemental explanation.2 Yet within itself and in its relations to other discourses, including the theatrical, early modern English law was vitally contentious and constantly evolving. The essays collected here represent heterogeneous voices in the longestablished and recently reinvigorated field of the law in Shakespeare. There are many ways to organize such a collection, each with its own strengths and limitations. Rather than focusing on a single kind of law, such as marriage or treason, or on a narrow group of Shakespeare’s plays, or a single genre, this collection highlights the eclectic in both the legal and the literary territories that the authors explore. The essays that follow include the voices not only of professional academics but also of professionals at law. They study a spectrum of legal issues, ranging from questions of property, equity, and fraud to those of the sovereign’s prerogative. And they interrogate a range of Shakespeare’s plays, from the early comedies through the late tragedies. Contributors were not asked to adhere to a particular theoretical or methodological agenda about the theater or the law. The result is a diverse collection in which each essay has its own specific focus and idiolect. What unites them is their focus on the plays of Shakespeare and the legal discourses (official and unofficial) of early modern England. Official discourses of law emanating from parliamentary statute and the courts of common law and equity were designed to persuade subjects of the justice of the nation’s legal system, and it is precisely this subject of equity upon which much of the scholarship on Shakespeare turns. Progressive theorists tried to resolve differences and close gaps between the letter of the law (the lex of Roman law) and the justice (or ius) it sought to realize. The interpretation of the letter of the law was fundamental to this end; in practice, however, mere literalism proved frustrating. The concept of justice repeatedly opened up to contingent pressures and reflected current political and economic interests. Those who interpreted the law, both professionally and as a matter of civic interest, drew on ideas of honor, fairness, and traditions of community life that spoke to social practices that while not strictly legal had the power to compel attention and performance. The idea of equity – especially as expressed by civil lawyers such as Christopher St. German, in his Dialogues in English between a Doctor of Divinity and a Student in the Laws of England (published continuously from 1543), and Edmund Plowden, in his Commentaries ou reportes (1571, 1579) – addressed a pervasive difficulty: the application of a general rule to a particular case. The letter,

English Law in Shakespeare’s Plays 3

it was obvious, did not always fit the situation it was supposed to cover. Responding to such disjunction, equity courts, like the consistory courts designed to remedy special grievances and the prestigious Star Chamber created to give speedy relief to litigants, paid attention to claims of conscience. Increasingly, the common law courts also heard arguments reflecting equitable principles. In any case, lawyers both civil and common sought to persuade their courts by exploiting the arts of rhetoric. To persuade was also to clarify, to establish, and to justify how a decision might or ought to be rendered in a given instance. Rhetoric, taught in the schools, illustrated the illocutionary functions of language;3 its practices made vital to an understanding of the law “the common opinion of the multitude, old customs, ancient fashions, or any such like.”4 Literary criticism on law in Shakespeare’s plays has represented, in the first instance, those aspects of Tudor and Stuart life that were affected by the law in one way or another and that find obvious illustration in the plays. Studies of the terms and conditions in which English subjects experienced contracts, dealt with rights to property, undertook to observe the privileges and constraints of marriage, and, perhaps most conspicuously, obeyed the power of the sovereign have recognized their representation in the plays.5 Virtually no English subject was free from one or another tie to property, whether they possessed it in some measure, however small, or did not possess it at all, at least licitly. Real property, whose terms effectively dictated a range of social relations, was especially important: it was either corporeal, consisting of land, or incorporeal, often expressed as a right to a use (as in grazing, foraging, and collecting fuel) on land that was not the user’s property.6 Equally important were the obligations that real property solicited and the rights it conferred, considered as various kinds of tenure.7 A magisterial study by Paul S. Clarkson and Clyde T. Warren, The Law of Property in Shakespeare and Elizabethan Drama (1942), details Shakespeare’s extensive references to all kinds of property and analyzes the dramatic conflicts in which they appear.8 In cases involving disputes, ordinary subjects were often caught in currents directed to two grand public ends: first, to maintain a stable society ensured by the uncontested transfer of land from one generation to the next, and, second, to promote the commonwealth. Nor was their interest merely theoretical. As Patrick Collinson has observed, the “middling sort” regularly served as “the bottom line of early modern government” in small towns and villages.9 Shakespeare’s various constables and magistrates, his Dogberry and his Escalus, are not entirely fantastic figures. The interpretation of evidence in criminal cases was the task of a jury, and Shakespeare’s representation of law throughout the plays is informed


by this popular agency, although it may not be directly dramatized.10 Evidence was routinely open to question, and it was understood that even well-intentioned witnesses could be mistaken about the act on which they reported. At trial, the prosecution’s task was to limit the meanings of evidence in order to fit it to a narrative of guilt. The defendant attempted, in turn, to offer alternative interpretations in order to demonstrate the weakness of the evidence. The procedure of a criminal inquest – “Enquest is that inquiry which is made by Jurors in all causes civill or criminall touching the matter of fact”11 – as reported by Sir Thomas Smith, indicates not only how the facts of a case were adduced but also how Shakespeare’s fellow subjects participated in the performance of justice. Smith’s typical judge opens an inquest by stating the reason for it: One of the judges briefly telleth the cause of their coming, and giveth a good lesson to the people. Then the prisoners are called for by name, and bidden to answer to their names. If [they] plead not guilty, as commonly all thieves, robbers and murderers do, though they have confessed the fact before the Justice of the Peace that examined them, though they be taken with the manner which in Latin they call in flagranti crimine [in the act of committing the crime], howsoever it be, if he [a prisoner] plead there not guilty, the clerk asketh him how he will be tried. And telleth him he must say, by God and the country, for these be the words formal of this trial after indictment and where the prince is party.12 The accused then participates in the selection of the jury, choosing among “the honest men that be come in the place and stead of the country. . . . The clerk calleth the first juror. . . . If the prisoner [i.e. the accused] objecteth nothing against him, he calleth another, till there be twelve or above.”13 Having heard the evidence, the jury is sequestered; it can hear again any of the evidence presented at trial. As critics have noted, a procedure that allows the accused to lodge peremptory challenges against prospective jurors conveys how the experience of an inquest (or trial) can have a dramatic character and suggests why the public can on occasion witness inquests or trials as virtual “morality plays.”14 Smith concludes by celebrating English jury-based justice as opposed to continental agencies of the law by stressing its universal appeal: “all men may hear what is said.” This is to be understood, although it will seem strange to all nations that do use the civil law of the Roman emperors, that for life and


death there is nothing put in writing but the indictment only. All the rest is done openly in the presence of the judges, the justices, the quest, the prisoner, and so many as will or can come so near as to hear it, and all depositions and witnesses given aloud, that all men may hear from the mouth of the depositors and witnesses what is said.15 Criticism of law in Shakespeare has done more than account for references to legal topics, cases, and procedures in the plays, however; it has also reflected developments in the methods of literary criticism generally. Building on detailed accounts of Shakespeare’s legal language and references by Edward J. White in his Commentaries on the Law in Shakespeare (1913) and Sir Dunbar Plunket Barton in Links Between Shakespeare and the Law (1929), later criticism has increasingly focused on Shakespeare’s apparent commitment to ambiguity, his unwillingness to resolve the legal issues in the plays by reducing them to neat points of law. Promoted by an interest in nonscripted natural law and acknowledging the power yet also the indeterminacy of ideas of reason, what it was and how it functioned, critics have sought to understand how Shakespeare’s contemporaries interpreted authorities in the law who announced dicta that posed further questions. St. German, for example, who stated that positive law was always trumped by natural and eternal (divine) law – “against this law, prescription, statute, nor custom may not prevail” – invited the reader to identify in what those laws consisted. Edward Coke seconded St. German when he observed that a statute that conflicted with the dictates of reason could not prevail, for “the Common Law is the perfection of reason.”16 But how to define natural law; how to know reason? The words of the fifteenth-century lawyer Sir John Fortescue, citing Romans 13.1 – “since the Apostle says ‘All power is from the Lord God’, laws established by man, who receives power to this end from God, are also formulated by God” – might have given the doubtful some comfort, but not much certainty.17 Does the Apostle mean all laws, even those instituted by the words of a tyrant? So, apparently, thought the authors of the homilies enjoining subjects to obey duly instituted authority. So also thought James I when he wrote The Trew Law of Free Monarchies (1598). Correspondingly, however, constitutionalists regularly denied the tyrant any legitimacy. Theorists as moderate as Smith would locate the sovereign in the king in Parliament: The most high and absolute power of the realm of England is in the Parliament. . . . And upon mature deliberation, every bill or law being


thrice read and disputed upon in either house . . . the Prince himself in presence of both parties doeth consent unto and alloweth. That is the Prince’s and whole realm’s deed: whereupon justly no man can complain, but must accommodate himself to find it good and obey it. And to be short, all that ever the people of Rome might do either in Centuriatis comitiis or tributis, the same may be done by the Parliament of England, which representeth and hath the power of the whole realm both the head and the body. For every Englishman is intended to be there present, either in person or by procuration and attorneys, of what preeminence, state, dignity, or quality soever he be, from the Prince (be he King or Queen) to the lowest person of England. And the consent of the Parliament is taken to be every mans consent.18 Shakespeare’s open-ended conflicts, his apparently deliberate refusal to resolve the quandaries he posed, illustrate the difficulties raised by views as divergent as those of Smith and James I. Criticism has accordingly acknowledged how the representation of a particular conflict, dramatizing outcomes that might have been but did not in fact result, could provoke a critic to imagine his or her own solution. O. Hood Phillips, relating how Sir Frederick Pollock had decided Shylock’s case – “Declare the bond void at law, involving as it does consent to be maimed. (There is no question of equity in the technical sense.) Judgment for the plaintiff for 3000 ducats, and interest at the current rate, as on a simple contract debt” – speculates on what Venetian law might have required of the debtor Antonio, allowing, as it did, for forfeiture of bodily parts were the terms of a contract not met.19 Raising other comparable questions, the law in Shakespeare has often appeared to be a series of pretexts designed to test the wit of audiences, much as the moots rehearsed for students at the Inns of Court were intended to instruct them in fashioning artful argument.20 More broadly, literary criticism on the law in Shakespeare’s plays has focused on the work of the imagination in constituting the subjects and how Shakespeare represents them. James Boyd White’s The Legal Imagination (1985) identifies the hermeneutics at work in understanding law generally; Richard Weisberg makes the case for reading literature that deals with law because it contributes to what law can embrace as “ethical awareness.”21 Critics have recognized that Shakespeare’s plays compel the imagination to find solutions, however provisional, to the problems they pose; these critics have read the law in the plays as elusive and yet also ubiquitous. The more expansive the perspective that critics


take, the more generously they understand the function of law as paradoxical, as constructing (as Paul Kahn puts it) a “community beyond law.”22 Thus, in Kahn’s words, “the legal imagination does understand the ‘other’ against which it builds its world as this Hobbesian state of nature, but it also understands the world beyond law as one of revolution and of love.” On this account, “the culture of law’s rule” can be understood to build our relations to nature, to allow for change, and to create new communities.23 Particular registers of law appear in Shakespeare’s representation of the body politic, the commonwealth, and the monarchy, and it is fair to say that in these registers critics have recognized that Shakespeare’s legal imagination has worked to produce political fictions.24 Like the plays dramatizing issues involving usual actions in common and civil law, plays focusing on politics are structured on “incompatible principles”: the divine right of kings and the natural rights of subjects; the monarch’s responsibility to maintain the commonwealth, especially in times of war, and the citizen’s obligation to resist authority that contravenes divine or natural law. To mend this incompatibility there is no law per se; rather, there is conscientious reflection producing acts of courage, escape, and deceit.25 The English history plays, especially the second tetralogy, are further complicated by historical difference; in a sense they play cards with two decks. Historically, medieval kings had much greater latitude than did sixteenth-century kings; Shakespeare’s medieval kings, while constrained through plot by the events of history as recorded in chronicle, can be understood to work anachronistically, constrained by the terms of Tudor constitutionalism, however much they are also energized by the prospect of their own absolute rule.26 Anachronism and the uncertainties it creates have prompted critics to entertain questions of legitimacy as Shakespeare poses them in order to ask other questions that are more immediate: is Henry IV a legitimate monarch? Where do we rest our acceptance of a law as legitimate? Can we do better than search our “political imagination?”27 To know how that imagination works becomes a matter for the individual critic. If the texts of the plays are transparent entities, windows on preexistent worlds whose features are both obvious and unchanging over time, then interpretation becomes transcription. But this glassy stasis is not what the critic can be said realistically to encounter; rather, he or she confronts language, a text to be interpreted. Summarizing the work of Terence Hawkes, Ward declares: “Shakespeare doesn’t mean: we mean by Shakespeare.”28 This claim finds support in the work of “alternative Shakespeareans” who, in 1985, contributed to criticism that identified itself as “reading,” though


not the kind of reading that represents “itself as an exclusive effect of the text” but rather as an effect of the reader’s cultural milieu, its historical, social, and philosophical determinants.29 This kind of self-consciousness has made possible a criticism that takes account of and often explicitly states the assumptions upon which its representations are based. It sees a benefit in the ambiguities of its textual politics because, like the moots of Tudor Inns of Court, these politics encourage debate.30 Archival research has provided essential information about how Shakespeare and his contemporaries experienced the public force of the law in their daily lives, a force that obtained prior to any particular instance of its exercise, and critics have reflected this history.31 Subjects of Elizabeth and James VI/I, mindful that law guaranteed the power and authority of the state, understood that its objectives were public. They agreed that the “wilde justice”32 of aggrieved and vengeful subjects, unchecked by positive law and responsible magistrates, doomed a society to uncivil savagery. The law of God was not a law that permitted revenge: God protected the murderous Cain by setting a mark on him “lest any finding him should kill him.” And Paul instructed his readers to “give place unto wrath” for the Lord said: “Vengeance is mine.” The divine “I” echoed in scripture was for practical purposes vested in institutions of the state dedicated to preserving the social order. To a noble subject, of course, revenge could seem a right and its cooptation by the state an action of trespass on traditional prerogatives, and in effect an injustice. Despite (or perhaps because of) these differences, early modern theorists of jurisprudence continued to seek corroboration from inspired accounts of the law. It is hard to imagine a more exalted defense of English law than Fortescue’s Learned Commendation of the Politike Laws of England (1573), which discusses criminal law. [I]t is also necessary to discuss how in matters criminal the laws of England do fetch out the truth. . . . If any man accused of felony or treason in England do at his arraignment before the same judges deny the offence, forthwith the Sheriff of the County, where the deed was done, shall cause to come before the same Judges four and twenty good and lawful men dwelling nigh to the village, where the fact was done, such men as to the party accused by no thing allied . . . to certify the judges upon the truth of the crime. Which at their appearance the party accused . . . in favor of his life may challenge five and thirty men such as he most feareth; which upon his challenge shall be canceled in the panel; or shall be noted with such marks that they shall not pass upon him; though he be not able to show any cause of his exception and


challenge. Who then can unjustly die in England for any criminal offence, seeing he may have so many helps for the favor of his life, and that none may condemn him but his neighbors, good and lawful men, against whom he hath no matter of exception. Indeed I would rather that twenty evil doers to escape death through pity then one man to be unjustly condemned. And yet it is not to be suspected, that any offender can under this form escape the punishment of his offence, forasmuch as his life and conversation shall be afterward a terror to them that have thus cleared him of the crime. In this kind of proceeding there is no cruelty or extremity used. Neither can the innocent and unguilty person be hurt in his body or limbs. Wherefore he shall not stand in fear of the slander of his enemies, because he shall not be racked or tormented at their will and pleasure. Thus under this law a man may pass his life with quietness and safety.33 Admittedly, Fortescue’s description is idealistic, and to Shakespeare’s contemporaries it may well have appeared out of date. Despite Fortescue’s claim that “there is no cruelty or extremity used” in criminal actions, assorted kinds of social, political, and physical violence and torture were often included at various stages of sixteenth-century criminal process.34 Yet what is important here is that Fortescue has created a sustained discourse of what we might call (borrowing from Fredric Jameson) an imaginary of a legal ideal:35 an imaginary that declares that principles of justice and humanity are essential in shaping civil society. Critics have drawn on the records of other voices – those of authors of broadsides, of ballads, and of plays – who took exception to this ideal, greeting it with skepticism and an interrogative spirit, and substituting their own imaginary. Some of these authors drew on Raphael Holinshed’s Chronicles of England, Ireland, and Scotland (1587), yearbooks from the Inns of Court, and reports of lawyers such as Plowden and Coke (continuously published from 1600 to 1614). The history of theatrical performances, difficult to retrieve but nonetheless registered in casual conversations, “tavern cases” argued in pubs, and moot courts performed in the law schools together illustrate a dialogue between the goals of an ideal justice and the practical exigencies of applied law, between honoring the spirit of the law and pursuing admittedly self-interested ends. * * * The essays in this volume take their place in the criticism of law in Shakespeare, both mirroring and contesting its most important


assumptions and practices. Reflecting the cultural turn in early modern studies, these essays regard the law as one text among others, comprising culturally specific meanings and having no prior claim to superior authority. As Allen D. Boyer shows, rhetorical training was as much at the foundation of legal education as an acquaintance with texts of statute and common law. An attorney himself, Boyer finds that rhetoric’s power to give meaning to the words of an argument through figures of speech shaped early modern legal discourse in England. The education of lawyers at the Inns of Court involved participating in disputes or controversiae argued by way of exempla, instances, illustrations, and cases; these in turn proved their point by inventio, the discovery and capture of effective figures. Exemplifying the results of such training, chief justice Coke distinguished “natural reason,” a human property, from the “artificial perfection of reason,” an attribute of the lawyer and the result of his training in the arts of language and argument. Coke was correct in showing that the lawyer’s speech was not like that of his fellow subjects untrained in law, however exalted their status. Rather, it was pointed, contrived, and indeed artful. Playwrights had a comparable view of the role of the language of the stage, where the logic supporting a character’s case or a position had to be measured in the music of figures of speech and style to capture and hold the attention of audiences. Dympna Callaghan and Chris R. Kyle refer to a world without law and troubled by revenge, what Francis Bacon called “wilde justice.” Ideally, the power of the state prevented punishments that were entirely personal in nature. But, as the action of Titus Andronicus (1590) reveals, when the state failed to take charge, “wilde justice” flourished in a horrible way. The situation it dramatizes is not, however, very unlike the situation of a person whom the early modern state perceived as its enemy, despite the norms that justice was supposed to observe. Such enemies, men and some women, were marked, maimed, and mutilated in the process of being tortured. Many suffered martyrdom. Callaghan and Kyle suggest that the anarchy concluding Titus Andronicus constituted a warning. “Getting even” involved distinguishing justice from extrajudicial vengeance, a distinction that in practice eluded officers of the state. While English lawyers referred to the English subject as categorically different from the servile subject of a foreign prince because he enjoyed a liberty under the law, William O. Scott reveals how Shakespeare’s Richard II (1595) illustrates the actual harms to property and self that the subject may suffer when the king abuses his rights as sovereign. By delegating the obligations of his stewardship of the realm and its


property to favorites and tenants turned fee and rent collectors, Richard created a “waste” of resources that the crown should have used to govern and sustain the people. In this essay, which is reprinted here in a condensed and updated form, Scott identifies the king’s behavior with “absolutism,” a theory of rule in which the monarch is above positive law; constrained only by divine and natural law, he is virtually free to do what he likes, the common law and the imposing power of Parliament notwithstanding. Bolingbroke’s resistance to the king fits a constitutionalism only fully articulated after the accession of James I, but already adumbrated in Fortescue’s Commendation. As a theory of rule, constitutionalism stipulated a sharing of power between subjects and monarch, and a fully coordinated body politic in which each part is reserved for a particular function. Once thwarted, the integrity of the kingdom is in jeopardy. Also interrogating Shakespeare’s fictional representation of property relations, Nancy E. Wright and A. R. Buck read 2 Henry VI to confirm that private property and a “law of nature” promoting self-interest were considered necessary consequences of the Fall. (These ideas opposed the important mythoi of the paradisal garden and the locus amoenus, both suggestive of a property-less world in which all was “common.”) Inviting belief in a perfectly congenial community constituted to mirror the amenities of the golden age, Sir Alexander Iden masks his real interest in securing exclusively private rights to property and ensures the prosecution of trespass by rebels such as Jack Cade. In As You Like It (1599), Duke Senior’s representation of a locus amoenus serves a congenial end, admitting a notion of “common” that is predicated on a prior commitment to an ideal community. The economic advantages to poor tenants of property rights held in common, often to a use, were considerable: the disappearance of common lands by enclosure and in some cases their disafforestation were much debated. To the real hardships that ensued, the action in Shakespeare’s Forest of Arden illustrates a corrective: when Oliver promises his younger brother Orlando the property he has inherited from his father, a community interest overcomes self-interest. Examining the action of conveyance as it is dramatized in Othello (1602–04) and The Merchant of Venice, Charles Ross considers transfers of property associated with marriage arrangements; those that might have been entered into but for an elopement were known for being susceptible to fraud. Marriageable property (the woman) and marital property (what she would bring to a properly arranged marriage) could easily be fraudulently conveyed. In Othello, Desdemona’s abduction defrauds her


father Brabantio, her secrecy in the matter of the handkerchief defrauds Othello, and Othello’s suicide defrauds Venice of his execution for murder. These actions speak to the most common characteristics of fraudulent conveyance: property owed to creditors is conveyed out of their reach, and property paid for by one party is passed to another who has taken title. In The Merchant of Venice, Portia commits fraud more than once and of more than one kind. When she claims property that is her husband’s under the terms of her father’s will, she behaves as if this property is hers. Assuming proprietorship of it, she conveys it away from him and to herself. This is a fraud clearly associated with a reasonable self-interest: Portia wants to inform Bassanio that although she has been traded as chattel, she is actually a person. Any survey of the scholarship of law in Shakespeare reveals that The Merchant of Venice is a central text. Touched on by Ross in terms of fraudulent conveyances, it is also the subject of essays by Thomas C. Bilello and Luke Wilson. Bilello, a practicing attorney, opens his interpretation of the court’s judgment in the play by observing that Portia fraudulently assumes judicial authority; she is neither a lawyer nor a judge by training or license. Indeed, her interest in punishing Shylock forestalls the kind of unbiased justice Fortescue had celebrated. Equity, a concept designed to match the letter of the law to the situation it is supposed to address, is not a subject that the play represents. English equity courts provided relief to debtors faced with rigorous rulings in common law courts, and there was a precedent for deferring payment of a debt in Umfraville v. Lonstede, a case decided in the fourteenth century. But Portia and the Venetian court do not consider the remedy in Umfraville and rather support Shylock’s demand for payment of the full penalty – a demand that then renders Shylock a criminal within the Venetian state under the alien statute. By comparison to the rulings of English equity courts, which took account of particular hardships, Bilello shows that Portia’s justice is little better than a sophisticated form of revenge and the court itself a forum for vengeance. The widespread use of marine insurance in Shakespeare’s day invites Luke Wilson to ask why Antonio, the merchant of The Merchant of Venice, does not insure his fleet. Marine insurance, widely issued in Shakespeare’s era, was a reminder of risk and also of ways to mitigate its worst effects. Does Antonio fail to grasp the concept of probability that underlies the experience of risk; does he not ask whether an event is more or less likely to occur? Does the risk he faces as a result of this failure prompt his “sadness,” a misery before the fact of loss? Wilson answers these questions by pointing to the structurally crucial absence of insurance


as the enabling condition of the play. In the play as a whole, law – the institution that makes insurance a fact of commerce – functions as an absent presence: first, as suppressed at the level of plot (by Antonio’s uninsured fleet) and, second, as occluded at the level of character (by Portia’s indifference to or ignorance of the law she could have practiced). Portia’s final claim, never proved, that Antonio’s fleet is in fact safe, covers the first of these absences by making up for what insurance would have guaranteed. Wilson suggests that the play resolves Antonio’s failure to recognize risk and his sadness by the introduction of a generic norm: comedy provides him and the audience with a kind of compensation. Refuting the tradition of identifying early modern legal processes with decisions of official court figures, Lorna Hutson argues for an emerging sense of “participatory justice” of the kind Smith described in Shakespeare’s treatment of evidence in 2 Henry VI. This justice depended upon the collection of evidence rendered to the court by the testimony of witnesses who, expecting to be interrogated, needed to have “forensic or detective habits of mind.” English juries were drawn from the community in which the accused was to be tried; they were apprised of information collected from local sources. Hutson questions whether their participatory justice has a negative aspect: massed together, even in the interest of preserving justice, a community, any community, could obviously threaten the peace. Shakespeare shows that the “commons” of 2 Henry VI who demand evidence by which to bring Duke Humphrey’s murderer to justice can sting like bees; however, without their buzzing, betokening a lethal force, justice might not be realized at all. Slander is at the center of Cyndia Susan Clegg’s contribution, which shows how the mistakes of witnesses color the quasi-judicial procedures in Much Ado About Nothing (1598–99) and taint an innocent party. In its representation of the instability of evidence, the play signifies a recurring Shakespearean concern. When Claudio, assuming the role of witness, jury, and judge, rushes to declare Hero dishonest, Shakespeare illustrates the occasion of slander at its most primitive. Had Claudio considered more than he saw (he has seen “Hero” with another man in her chamber window) – that is, had he examined the circumstances and considered the history of the scene – he might not have come to his conclusion. There are two important factors in this process. The first is memory – the Friar believes that the real Hero is innocent because her reputation is unblemished – and the second is patience – the Friar asserts that in time parties estranged by slander find ways to be reconciled. Identifying the play’s events with contemporary occurrences, Clegg further suggests that the timing of the play’s production, 1599, may have been taken to imply


a reference to the Earl of Essex’s fall from royal favor and consequent subjection to slander and libel. Attending to one of the most famous legal allusions in the Shakespeare canon, the Clown’s reference in Hamlet (1599) to the “three branches of action,” Carolyn Sale links the representations of the relations of women and property with legal conceptions of agency in three cases – Hales v. Petit, Wimbish v. Tailbois, and Eyston v. Studd – to discover how the law’s narrative control of a dead man’s actions, its constructions of the relationship of women to property, and a paradox at the heart of Plowden’s famous conception of equity converge in Shakespeare’s play. Reading Plowden’s notion of equity as a contention that legal discourse achieves equity where it permits itself to be shaped by things outside it, Sale asks, “in what ways might a dramatic fiction help to shape, from a site outside both the law’s ‘letter’ and the venues in which law is interpreted and applied, the ‘moral virtue’ of equity?” She finds part of the answer in Gertrude’s desire to see Ophelia as the victim of an accident and not a suicide. Gertrude inverts Henry Bracton’s dictum (in On the Laws and Customs of England, c. 1220–50) on the noncausality of inanimate objects – “Stationary things . . . provide neither the cause nor the occasion for murder”36 – which allows her to attribute Ophelia’s death to “the envious sliver” of a tree. In this moment, the play opens up a concept of “agentless action,” which extends to Hamlet in adopting this feminized position when he kills Laertes. The logic of the law constructs a discursive field in which Hamlet acts, so that he may act as (in Plowden’s words) an “amending hand”: the instrument that ensures the correct functioning of the law. Both Peter C. Herman and Rebecca Lemon turn their attention to the broader issue of the sovereign’s authority. Herman establishes how far Smith’s essentially Tudor vision of this sovereign was troubled by a contrasting view of an absolute monarchy, especially as announced by James I. His endorsement of a “free” monarchy beyond the reach of positive law, distressing to his new English subjects, might, of course, have admitted the practice of absolute rule guided by the unratified provisions in natural and divine law. But absolute rule more radically suggested a drift to tyranny and a correlative scorn for the legal rights of English subjects. Such were the rights under what came to be called the “ancient constitution.” The action in Macbeth (1606) can be seen to pose the following question: How far is monarchic disorder allowable before subjects can entertain deposition? The response the play provides is ambiguous. The distance measuring such an allowance is aporos, unbridgeable. The crux appears when the heir apparent, Malcolm, confronts his dutiful subject,


Macduff, who while horrified at the prospect of a tyrant, cannot quite entertain rebellion against him. Asked to consider both tyranny and rebellion, Macduff expresses irresolvable doubt: “ ’Tis hard to reconcile.” Rebecca Lemon focuses on the “decisionist power” that a condition of war permits a head of state as it is represented in Coriolanus (1608). According to Bracton and Fortescue, this power suspended the rights and liberties of English subjects during war; in this respect, it was a power similar to that conferred by the monarch’s prerogative but registered pervasively, without the constitutional checks provided by law and custom. In the play, the plebeians’ appeal for rights under law is met by Rome’s patrician hero’s objection to republican rule: an executive power coupled with legislative authority and subject to legal control is an unwarranted compromise with the interests of inferiors, and Coriolanus predicts “confusion.” His objection raises a second issue: the status of the exception from circumstantial necessity termed “reason of state.” Yet if Shakespeare’s Coriolanus requires the exceptionalist to yield to law, as it does, it also reveals a law changed by – that has yielded to – the voice of the exceptionalist. The figure of the “lawful sword” suggests that the tools of government are both necessary and incompatible. The volume concludes with Elizabeth Hanson’s look at an emergent discourse in legal thought – one that brought science to bear on the question of natural law, eventually to transform an idea of God’s will into a more mechanical notion of law. Interest in empirical science by Francis Bacon and his followers piqued an understanding of nature that considered its workings in terms of laws to which all creation was subject, though in different ways. Shakespeare links the erring sexuality of the characters in Measure for Measure with these laws, and more generally with the law of nature, a rhetorical move that appears to set a limit to what positive law can effect by way of establishing a lawful society. Shakespeare’s Vienna remains intractably lustful. Although positive law is designed to maintain civility, it falls short of its goals; Angelo’s extravagant magistracy is in keeping with tensions between positive law and the law of nature. Even those possessing the power and authority conveyed by positive law, such as the Duke who seeks Isabella in marriage, must yield to the promptings of the law of nature. * * * As this brief overview of the critical history and of the essays here collected suggests, the subject of the law in Shakespeare does not lend itself to tidy categories. Like Shakespeare’s plays themselves, whose texts have invited


centuries of scholarly conversation, these essays aim not to silence but to provoke. The reader will not discover the last word on any single law or play, but a continuing conversation. Like any collection of this kind, this one suffers from its inability to include all that it might – more plays by Shakespeare, more laws that are here unmentioned, or more reaching out to other early modern writers. Our notes can only begin to register our debt to the works of others and to suggest the pervasiveness and the open-endedness of considering “the law” in “Shakespeare.”

Notes 1. The Second Part of King Henry the Sixth, 4.2.73, ed. David Bevington, in The Complete Works of Shakespeare (Glenview, IL: Scott, Foresman, 1980), pp. 587–627. 2. Stanley Fish, Doing What Comes Naturally (Durham, NC, and London: Duke University Press, 1989), p. 7. 3. See J. L. Austin, How to Do Things with Words (Oxford: Clarendon Press, 1962). 4. Thomas Wilson, The Rule off Reason (1551; rpt. New York: Da Capo Press, 1970), sig. M5r–M6r. See also Allen Boyer, “Drama, Law and Rhetoric in the Age of Coke and Shakespeare” (Chapter 2); Joel B. Altman, The Tudor Play of Mind (Berkeley, CA: University of California Press, 1978); Marion Trousdale, Shakespeare and the Rhetoricians (Chapel Hill, NC: University of North Carolina Press, 1982); and Sister Miriam Joseph, Shakespeare’s Use of the Arts of Language (New York: Columbia University Press, 1947). 5. See among others Rebecca Lemon, Treason by Words: Literature, Law and Rebellion in Shakespeare’s England (Ithaca, NY: Cornell University Press, 2006); Brian Jay Corrigan, Playhouse Law in Shakespeare’s World (Madison, Teaneck, NJ: Fairleigh Dickinson University Press, 2004); A. G. Harmon, Eternal Bonds, True Contracts: Law and Nature in Shakespeare’s Problem Plays (Albany, NY: State University of New York Press, 2004); Craig Bernthal, The Trial of Man: Christianity and Judgment in the World of Shakespeare (Wilmington, DE: ISI Books, 2003); B. J. Sokol and Mary Sokol, Shakespeare, Law, and Marriage (Cambridge: Cambridge University Press, 2003); Luke Wilson, Theaters of Intention: Drama and the Law in Early Modern England (Stanford, CA: Stanford University Press, 2000); William M. Hawley, Shakespearean Tragedy and the Common Law: The Art of Punishment (New York: Peter Lang, 1998); Gillian Murray Kendall, ed., Shakespearean Power and Punishment (Madison, Teaneck, NJ: Fairleigh Dickinson University Press, 1998); Constance Jordan, Shakespeare’s Monarchies: Ruler and Subject in the Romances (Ithaca, NY: Cornell University Press, 1997); M. Lindsay Kaplan, The Culture of Slander in Early Modern England (Ithaca, NY: Cornell University Press, 1997); Daniel J. Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton, NJ: Princeton University Press, 1994); Darryl J. Gless, “Measure for Measure,” the Law, and the Convent (Princeton, NJ: Princeton University Press, 1979); O. Hood Phillips, Shakespeare and the Lawyers (London: Methuen, 1972); George W. Keeton, Shakespeare’s Legal and Political Background (New York: Barnes and Noble, 1967). See also Nancy E. Wright, Margaret W. Ferguson, and


6.

7.

8. 9. 10.

11. 12. 13. 14.

15. 16.

17. 18.

A. R. Buck, eds, Property and the Letters of the Law in Early Modern England (Toronto: University of Toronto Press, 2004). For this distinction see A. B. W. Simpson, “Incorporeal Things,” in An Introduction to the History of the Land Law (London: Oxford University Press, 1961), pp. 97–111. “Tenure in capite is where any hold of the King as of his person being King, and of his Crowne, as of a Lordship by itselfe in grosse and in chiefe above all other Lordships.” [John Rastell], Les Termes de la Ley (London, 1641), sig. Kk6 verso. See also Socage: “To hold in socage is to hold of any Lord Lands or tenements, yielding to him a certaine rent by the yeare for all manner of services” (sig. Kk verso); and the conditions of its possession, described as kinds of estate: “Estate is that tittle or interest that a man hath in lands or tenements as estate simple other wise called fee simple, and estate conditionall, or upon condition, which is either upon condition in deed, or upon condition in Law” (sig. V3). For a study of property transfers, see Charles Ross, Elizabethan Literature and the Law of Fraudulent Conveyance (Aldershot: Ashgate, 2003). De Republica Anglorum, Or, History with the Politics Put Back (Cambridge: Cambridge University Press, 1982), p. 33. For a comprehensive overview of the prosecution of crime, see John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Boston, MA: Harvard University Press, 1974), pp. 5–125. Termes, sig. 137b. Sir Thomas Smith, The Commonwealth of England and the manner of government thereof (London, 1601), sig. N2 verso, N3. Smith, The Commonwealth of England, sig. N3. Bernthal, The Trial of Man, p. xxi. The function of the jury is the same in both inquest and trial. Black’s Law Dictionary, edited by Bryan A. Garner (St. Paul, MN: West Group, 2004), says under “inquest” that a jury is “a group of persons selected according to law and given the power to decide questions of fact and return a verdict in the case submitted to them.” In the Oxford History of the Laws of England (New York: Oxford University Press, 2003), Sir John Baker writes that “by the Tudor period nearly all issues of fact in the common law courts were tried by a jury of twelve men” (p. 351). According to Black’s, there is a special category of jury known as an inquest jury that is summoned “to inquire about the facts concerning a death,” but this is not what Smith is referring to. There is a general category of inquest which states that it is “an inquiry into a certain matter empaneled for that purpose.” This seems to be what Smith indicates, the “certain matter” being some crime. Smith, The Commonwealth of England, sig. O3. Quoted in Keeton, Shakespeare’s Legal and Political Background, pp. 74–75. See Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, CA: Stanford University Press, 2003); and Richard Helgerson, “Writing the Law,” in Forms of Nationhood (Chicago, IL: Chicago University Press, 1992), pp. 63–104. On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge: Cambridge University Press, 1997), p. 7. De Republica Anglorum, ed. Mary Dewar, Book II, ch. 1 (Cambridge: Cambridge University Press, 1982), pp. 78–79.

18 Constance Jordan and Karen Cunningham 19. Phillips, Shakespeare and the Lawyers, pp. 105–07, quoting Sir Frederick Pollack, “A Note on Shylock v. Antonio,” Law Quarterly Review 30 (1914), 175. 20. On pedagogical and literary aspects of mooting, see Karen Cunningham, “Fugitive Forms: Imagining the Realm,” in Imaginary Betrayals: Subjectivity and the Discourses of Treason in Early Modern England (Philadelphia, PA: University of Pennsylvania Press, 2002). For an analysis of this instruction with special reference to the revels, see W. R. Elton, Shakespeare’s Troilus and Cressida and the Inns of Court Revels (Aldershot: Ashgate, 2000). For an essay incorporating a judgment based on a case argued in moot using Shakespeare’s works as “law,” see Desmond Manderson and Paul Yachnin, “Love on Trial: Nature, Law, and Same-Sex Marriage in the Court of Shakespeare,” McGill Law Journal 49 (2004), 476–511. 21. Poethics: And Other Strategies of Law and Literature (New York: Columbia University Press, 1992), p. 3; cited in Kornstein, Kill All the Lawyers?, p. 7. 22. Paul W. Kahn, Law and Love: The Trials of King Lear (New Haven, CT: Yale University Press, 2000), p. xi. In the fearful situation of war, critics have discerned a role for a law of honor; Shakespeare’s soldiers both observe and violate that law. See Theodor Meron, Bloody Constraint: War and Chivalry in Shakespeare (New York: Oxford University Press, 1998), p. 5. See also Constance Jordan, “Henry V and the Tudor Monarchy,” in Early Modern English Drama, ed. Garret A. Sullivan Jr., Patrick Cheney, and Andrew Hadfield (New York: Oxford University Press, 2006), pp. 108–19. 23. All quotations from Kahn, Law and Love, p. 172. 24. Ian Ward, Shakespeare and the Legal Imagination (London, Edinburgh, and Dublin: Butterworth’s, 1999), pp. 1–2. 25. Phillips, Shakespeare and the Lawyers, pp. 49–55. For an analysis of resistance, see Richard Strier, Resistant Structures: Particularity, Radicalism, and Renaissance Texts (Berkeley, Los Angeles, and London: University of California Press, 1995), pp. 165–202. 26. The literature on the history plays is extensive; much of it touches on conceptions of law. See among others Phyllis Rackin, Stages of History: Shakespeare’s English Chronicles (Ithaca, NY: Cornell University Press, 1990); Alexander Leggatt, Shakespeare’s Political Drama: The History Plays and the Roman Plays (New York: Routledge, 1988); Robin Headlam Wells, Shakespeare: Politics and the State (London: Macmillan, 1986); Edna Zwick Boris, Shakespeare’s English Kings, the People and the Law: A Study in the Relationship between the Tudor Constitution and the English History Plays (London: Associated University Presses, 1978); M. M. Reese, The Cease of Majesty: A Study of Shakespeare’s History Plays (London: Edward Arnold, 1961); Lily B. Campbell, Shakespeare’s “Histories”: Mirrors of Elizabethan Policy (London: Methuen, 1947); E. M. W. Tillyard, Shakespeare’s History Plays (New York: Macmillan, 1946). See also Keeton, Shakespeare’s Legal and Political Background, pp. 225–370; Phyllis Rackin and Jean Howard, Engendering a Nation: A Feminist Account of Shakespeare’s English Histories (New York: Routledge, 1997). 27. Ward, Shakespeare and the Legal Imagination, p. 1. 28. Ward, Shakespeare and the Legal Imagination, p. 15, citing Terence Hawkes, That Shakespeherian Rag: Essays on a Critical Process (London and New York: Methuen, 1986).

English Law in Shakespeare’s Plays 19 29. John Drakakis, ed., Alternative Shakespeares (London and New York: Methuen, 1985), p. 23. 30. Ward, Shakespeare and the Legal Imagination, p. 16. 31. For a lucid summary of this law, see Sokol and Sokol, Shakespeare, Law, and Marriage, pp. 3–9. 32. The term is Bacon’s; see his essay “On Revenge.” 33. Sir John Fortescue, A learned commendation of the politique laws of England, trans. Robert Mulcaster (London, 1599), f. 61 verso–62 verso. The work of Fortescue (1394?–1476?) that we cite here, an edition of De laudibus legum Angliae with the text printed in Latin and English parallel columns, was first published in 1573 by Richard Tottel; the original Latin text was first published in 1543 by Edward Whitechurch. 34. For an account of official torture, see Elizabeth Hanson, Discovering the Subject in Renaissance England (Cambridge: Cambridge University Press, 1998); and R. A. Foakes, Shakespeare and Violence (Cambridge: Cambridge University Press, 2003). 35. See Fredric Jameson, The Political Unconscious: Narrative As a Socially Symbolic Act (Ithaca, NY: Cornell University Press, 1981). 36. Henry Bracton, On the Laws and Customs of England, ed. George Woodbine, trans. Samuel E. Thorne, vol. 2 (Cambridge, MA: Belknap Press with the Selden Society, 1977), p. 384. See Carolyn Sale, “The ‘Amending Hand’: Hales v. Petit, Eyston v. Studd and Equitable Action in Hamlet” (Chapter 11).

2 Drama, Law, and Rhetoric in the Age of Coke and Shakespeare Allen D. Boyer

In 1601, in February half-light, England’s greatest common lawyer and greatest playwright crossed courses. Edward Coke, the Queen’s AttorneyGeneral, pushed into the theatrical world of the Globe, to take the testimony of Augustine Phillips, William Shakespeare’s fellow-player. Coke was investigating the earl of Essex’s failed coup d’etat. He questioned Phillips about a play which Essex had paid the company to stage, The Tragedy of King Richard the Second (1595).1 His questions answered, Coke departed, but on his own terrain, the lawyers’ precincts of Holborn and Westminster, the Attorney-General found himself shadowed by two Stratford men, Richard Quiney and Thomas Greene. Quiney and Greene were Shakespeare’s allies in a property dispute. They had come to London to consult with Coke. They tipped Coke’s clerk and doorkeeper “that we might have access to their master for his counsel,” Quiney wrote, and Coke ultimately accepted their retainer, but they “could not have him at leisure by the reason of these troubles.”2 Did Coke and Shakespeare speak face to face? They may have met as many as four times, and there is more than one sense in which they may have exchanged words.3 Shakespeare’s works are packed with legal terms and concepts which Coke had helped define. Legal literalism hangs over The Merchant of Venice (1596–97), just as judgment and punishment loom above Measure for Measure (1604). With a peculiar rigor, Hamlet (1599) dramatizes the numerous varieties of Elizabethan homicide.4 Shakespeare’s verse speaks of love in legal language – in terms of leases, mortgages, pleadings, impediments to marriage, and the manor-court proceedings which overshadow Sonnet 46: “to ’cide this title is impannellèd, a quest of thoughts, all tenants to the heart.” Coke seems in turn to have borrowed from Shakespeare. Five years after he questioned Phillips, Coke quoted and paraphrased Richard II. To 20

Drama, Law, and Rhetoric 21

hearten a crowd at the Norfolk assizes, he echoed the long patriotic speech which Shakespeare had assigned to John of Gaunt. Here is Gaunt’s praise of his native island: This royal throne of kings, this scept’red isle, This earth of majesty, this seat of Mars, This other Eden, demi-paradise, This fortress built by Nature for herself Against infection and the hand of war, This happy breed of men, this little world, This precious stone set in the silver sea . . . This blessed plot, this earth, this realm, this England.5 Coke clearly caught the tenor of the passage. Had the Gunpowder Plot succeeded, he reminded his listeners, “This sea-environed island, the beauty, and the wonder of the world. . . . This so well planted, pleasant, fruitful world, accounted Eden’s paradise, should have been, by this time, made a place disconsolate.”6 Coke borrowed Shakespeare’s tropes and phrases, even his meter: so well planted, pleasant, fruitful world.7 The Elizabethan age, a distinguished scholar has said, was an age peculiarly receptive to such patterning of language, “a world in which rhetoric and literature were at home with the law itself.”8 Rhetorical forms had penetrated the vernacular self-expression of early modern England; where the discipline influenced letters, journals, diaries, even meeting agendas, it was no accident that it shaped the language of the law courts and the language of the Elizabethan stage.9 For the lawyers, the mastery of rhetoric was tantamount to eloquence – and the lawyers pressed further, to equate eloquence with wisdom and wisdom with their command of the common law. For those who worked in Shakespeare’s world, the playwrights’ craft drew on the rhetoricians’ art. In these different contexts, rhetoric supplied methodology. That Coke and Shakespeare’s paths crossed, in the gray, wintry days which were lengthening into the new century, reflects their sharing of a common culture.

Rhetoric and the Tudor curriculum For some twelve hours a day, approximately thirty-six weeks a year, and six years of what could have been a more carefree childhood, the schoolboys of Tudor England were drilled in grammar and rhetoric. They memorized tropes and figures of speech, the three styles of rhetoric, and

22 Allen D. Boyer

the five parts of an oration.10 In these circumstances, as C. S. Lewis observed, Elizabethan thinkers must be pictured growing up from boyhood in a world of “prettie epanorthosis,” paranomasia, isocolon and similer cadentia. . . . You adored sweet Tully and were as concerned about asyndeton and chiasmus as a modern schoolboy is about county cricketers or types of airplanes.11 The standard text from which Tudor schoolboys worked their way into the rhetorical tradition was the Apthonium Progymnasmata, an exercise book first drafted twelve centuries earlier by the grammarian Apthonius of Tyre.12 As well as providing plots and preparing students to embroider language, this text introduced students to writing dialogue and imagining characters. The Progymnasmata prescribed an exercise known as the ethopoeia in which the student imagined the words that a well-known fictional character might utter in some dramatic situation. (Achilles viewing the body of Patroclus, Apthonius suggested.) Another writer favored by the grammar schools, Quintilian, writing for orators who would work as lawyers, took this further, shrewdly recognizing where the advocate could learn from the tragedian: Impersonation may also be employed with profit in such passages, and by impersonations I mean fictitious speeches supposed to be uttered, such as an advocate puts into the mouth of his client. . . . Consequently Cicero, to quote him once again, although he will not put entreaties into Milo’s mouth, and prefers to commend him by his staunchness of character, still lends him words in the form of such complaint as may become a brave man. “Alas!” he says, “my labors have been in vain! Alas for my blighted hopes! Alas for my baffled purpose!”13 The Ad Herennium treated such subjects more extensively. Under notatio, “character delineation,” this treatise sketched the plotline of a farce. It supplied the tale of a down-at-heels braggart who passes himself off as rich, through presumption, mistaken identity, the confusion of street addresses, and the complicity of a quick-witted slave boy.14 Such lessons, meant for young orators, would prove invaluable to journeymen playwrights. In these same grammar-school years, the students were taught the figures of rhetoric. Anaphora is to begin a series of phrases with the same


word. Epistrophe is to end a series of phrases with the same word. Ploce is the repetition of individual words throughout a passage. Isocolon is to construct a passage from successive phrases of the same length, or from sentences of parallel structure. Zeugma is to omit a word from one phrase and supply it in another. Since classical times, it had been maintained that such figures could be counted on to reflect emotion and that in a master’s hands they would magnify emotion among an audience, perhaps harness such feelings as a persuasive force.15 “The chief praise and cunning of our poet is in the discreet using of his figures,” George Puttenham wrote, and reiterated the point: to avoid the “use of figure[s] at all” makes “our writing and speeches public . . . but as our ordinary talk.”16 As the exercises progressed, students learned to debate. The Controversiae of Seneca the Elder, collections of judicial declamations, were frequently used in the grammar schools.17 The topics debated in such cases were recklessly unrealistic. One controversia, “The Man Who Raped Two Women,” set forth a law which provided that a woman who had been raped might choose either that her attacker be executed or that he marry her without a dowry – then asked how that law should be applied when one of a rapist’s victims demanded that he die for his crime and the other claimed him as her bridegroom. Another controversia, “The Woman Tortured by the Tyrant Because of Her Husband,” narrated the story of a faithful but unfortunate wife, tortured by a tyrant to make her confess her husband’s plotting against the regime, who was put away by her husband for barrenness and sued him for ingratitude. For student orators seeking themes of filial obligation and paternal authority, a livelier narrative was provided by another tale, known as “The Archipiratae Filia”: A youth, captured by pirates, wrote his father for a ransom; no ransom was sent. The daughter of the pirate chief forced the youth to promise he would marry her if he were freed; he promised. She left her father and followed the young man. He returned to his father and married her. An orphan heiress appears; the father orders his son to marry her, abandoning the daughter of the pirate chief. When he refuses, his father disinherits him.18 The topics of the Controversiae were familiar in the grammar schools. To win acclaim, a debater had to find a novel way of reworking the material: by elaborating a topic, by imagining details, by inventing facts. Rather than following a plausible narrative or orchestrating a logical argument, the orator heightened drama and elaborated the language.

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Humanist teachers required that their pupils keep notebooks, commonplace books, and write down in them phrases from the classical authors whom they were reading.19 The illustrations which the students collected were classed as exempla. Literally, exemplum meant “example” or “instance,” a similar incident: pattern, model, precedent, case.20 The category was broadly defined: exempla could be fables, parables, proverbs, analogies, or scenes from poetry, prose, or drama – any compelling example or pithy remark, virtually anything that could be persuasively quoted. “There are past deeds and past sayings for example,” Erasmus remarked, “and common customs of people are adduced in exempla.”21 At the same time, however, the individual exemplum could be considered a miniature case study. Erasmus noted that “the exemplum pertains to the deeds of individual men” (unlike the parable, a generalized illustration).22 The humanist practice of collecting illustrations was matched by a practice of drawing morals, applying sententiae. Every moral was illustrated by example; every anecdote offered the chance to point a moral. Erasmus reviewed the many different interpretations which one could apply to the death of Socrates. [T]he death of Socrates provides not only an exemplum that death should not be feared by the good man, since Socrates drank the hemlock with such a cheerful countenance. . . . And here this fact may itself be developed both to praise Socrates and to censure him. For he should be praised who, condemned through no crime of his own but solely through envy, was so bravely indifferent to death; he should be censured who by his useless study of philosophy and neglect of the general mores brought the bitterest grief upon his friends, wife, and children.23 The rhetorical techniques learned in the Elizabethan schoolroom identified rhetorical practices with cultural identity. Oratory had created society, Cicero had argued: cities had first been built because orators convinced a scattered people of the value of living in civilized company.24 This claim was now revived. In his Arte of English Poesie (1589), following the lead of Sir Philip Sidney, George Puttenham claimed that the achievements of the first orators should be credited to the poets. “[T]he poet is of all other the most ancient orator,” Puttenham wrote, “he that by good and pleasant persuasions first reduced the wild and beastly people into public societies and civility of life.”25 Nor were the common lawyers slow to make the same assertion.26


As Stephen Hawes had argued during the reign of Elizabeth’s father: Before the law / in a tumbling barge The people sailed / without perfectness . . . They had no order / nor no steadfastness Till rhetoricians / found justice doubtless Ordaining kings / of right high dignity Of all commons / to have the sovereignty The barge to steer / with law and justice Over the waves / of this life transitory.27 For the Elizabethans, as Edmund Spenser phrased it, the challenge of the age was to construct “the kingdom of our own language.”28 The claim that orators organized society – that language created culture – speaks to the cultural enterprise in which the dramatists and the lawyers found themselves engaged.

From rhetoric to drama The strength a dramatist could draw from rhetoric was amply illustrated in Christopher Marlowe’s Tamburlaine (1587). The mighty five-beat lines of this tragedy are stocked with rhetorical figures, and its scenes may be studied as a series of declamations. Even the shortest speech may be lengthened by distributio, the individualized elaboration of a single item’s parts. The mass of an army, for example, is described as “one hundred and fifty thousand horse, two hundred thousand foot, brave menat-arms, courageous and full of hardiness.”29 More elaborately, a virgin herald asks that Tamburlaine spare the inhabitants of besieged Damascus: Pity our plights! O, pity poor Damascus! Pity old age, within whose silver hairs Honor and reverence evermore have reign’d! Pity the marriage bed, where many a lord In prime and glory of his loving joy, Embraceth now with tears of ruth and blood The jealous body of his fearful wife, Whose cheeks and hearts so punish’d with conceit, To think thy puissant, never-stayèd arm Will part their bodies, and prevent their souls From heavens of comfort yet their age might bear,

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Now wax all pale and wither’d to the death. . . . O, then, for these, and such as we ourselves, For us, for infants, and for all our bloods, That never nourished thought against thy rule, Pity, O pity, sacred emperor, The prostrate service of this wretched town. (5.2.17–37) The virgin pleads in turn for the elderly, the married, the innocent, and the young – not for the city as a whole, but for categories of its residents, seriatim.30 Another figure is at work in Marlowe’s early masterpiece. The drama lavishes upon Tamburlaine fully as much attention as that proud conqueror might have himself demanded, a process in which an educated theatergoer would have recognized the figure of amplificatio.31 Marlowe also often put into the mouths of other characters, even minor or feckless characters, speeches which resounded with the fluent and forceful eloquence of Tamburlaine himself. Such single-mindedness would circumscribe the play’s linguistic range and limit the development of other characters, but it heightened the tragedy’s focus on its hero and intensified the themes of power, will, and grandeur.32 Among the playwrights of Shakespeare’s era, it was John Fletcher who applied most liberally the learning of the Controversiae. In The Queen of Corinth (1617), which Fletcher wrote with Massinger and Nathan Field, a queen’s degenerate son, Theanor, forbidden to marry the woman of his choice, Merione, assaults Merione and plans to rape a second woman, Beliza. Merione twists these schemes by disguising herself as Beliza and being raped a second time, then pleading that Theanor be required to marry her, at a trial at which Beliza demands his execution. Obviously, The Queen of Corinth took its plot directly from “The Man Who Raped Two Women.” In The Double Marriage (1620), on which Fletcher collaborated with Philip Massinger, a patriotic conspirator whose wife has been tortured by the tyrant of Naples is captured by pirates and, having put his wife aside, wins his freedom by promising to marry the pirate chief’s daughter. As its title may have suggested, The Double Marriage combined the plotlines of two other Senecan controversiae, “The Woman Tortured by the Tyrant Because of Her Husband” and “The Archipiratae Filia.”33 In Fletcher’s plays, where plots were driven relentlessly by passion, where dramatic action raced recklessly through changes of fortune, shifts in mood, and reversals of characters’ loyalties, a narrative of sensation was matched with a fanciful, poetic diction. In this dramatic language, Eugene Waith has written, “virtuosity is cultivated at the expense of relevance.”34


Fletcher’s father was a bishop. The father of his best-known collaborator, Francis Beaumont, was a judge. Where the fathers governed, the sons entertained. With their taste for implausible plots and ornate language, they approached the bombast and empty wit which Cicero had scorned – but the mentality of the rhetorician inescapably shaped their work. The verbal embroidery with which the playwrights surrounded these plots recalls the student orators’ reworking of the same material. If Beaumont and Fletcher did not observe the responsibilities of eloquence, the vigor of their language honored such duties in the breach. Such intensity was something that Ben Jonson mocked. Jonson derided “the Tamerlanes, and Tamer-Chams, of the late age, which had nothing in them but the scenical strutting, and furious vociferation, to warrant them to the ignorant gapers.”35 Jonson further remarked that he would “no more choose a rhetorician for reigning in a school than I would a pilot for rowing in a pond.”36 In showing such disdain, however, Jonson may have masked his own ambition to claim the traditional laurels. Of all the poets, he proclaimed, “the comic comes nearest” to the role of the orator, Because in moving the minds of men, and stirring of affections (in which oratory shows, and especially approves her eminence) he chiefly excels. What figure of a body was Lysippus ever able to form with his graver, or Apelles to paint with his pencil, as the comedy to life expresseth so many and various affections of the mind? [There is] no perturbation in common life, but the orator finds an example of it in the scene.37 However presumptuous Jonson meant to be in claiming that the comic poet was the orator’s true heir, his assertion outlines a suggestive way of assessing Shakespeare’s achievement. As Walter Ong perceptively phrased it, to the Elizabethans, eloquence meant life.38 To see literature in such terms, as a connection of life and eloquence, offers a particularly useful approach to Shakespeare, whose genius is reflected in his broad treatment of humanity and language – in numberless vivid characters and varied scenes, a fearlessly wide-ranging choice of vocabulary, and a capacity to make poetry fit any level which drama demanded. Shakespeare had thoroughly learned the lessons of the orator. In Julius Caesar (1599), he drew on Plutarch with an ease that Erasmus would have praised. Beyond that, when Brutus broods upon the impending assassination, envisioning Caesar as an adder to be killed in the egg, Shakespeare follows a lesson that he had likely learned in the Stratford

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grammar school. The dramatic scene is patterned on the exercise of the locus communis, a study in “amplifying the evil” of its subject.39 Another well-remembered lesson shapes Othello (1602–04). Early in the play, when Othello defends himself against the charge of bewitching Desdemona, he asserts his innocence in an address which runs to nearly a hundred lines, following strictly the form prescribed for such orations: exordium, propositio, argumentatio, peroratio.40 Shakespeare’s achievement as a dramatic poet is nowhere more remarkable than in his growing mastery of rhetoric. By the most painstaking count, he knew and used more than two hundred rhetorical figures.41 The stamp of this learning is strongly set on the youthful masterpiece Richard III (1591). Richard’s opening soliloquy sets the model: Now is the winter of our discontent Made glorious summer by this son of York . . . Now are our brows bound with victorious wreaths, Our bruisèd arms hung up for monuments, Our stern alarums changed to merry meetings, Our dreadful marches to delightful measures. (1.1.1–8) This passage is a study in ironies. Half choric exposition, half an aside, it sets the dramatic scene while revealing a character’s secret thoughts. A murderously ambitious soldier describes the peace that he plans to disrupt and the victory of a brother whose heirs he plans to overthrow. The irony of this incipient drama is bolstered by a checkerboard of contrasting metaphors: winter and summer, struggle and celebration. The motif of seasonal change is enriched with a verbal pun (“this son of York”) – which both notes the accession of the Yorkist monarch Edward IV and makes a further visual pun, the sun employed by the new king as a heraldic badge. Embracing these metaphors, rhetorical figures provide an elegant superstructure. Anaphora and isocolon shape the passage. Zeugma buttresses the parallel structure with the rhythmic omission of the verb, turning the phrases into smooth iambics. Alliteration ties the lines and thoughts together (merry meetings, dreadful marches, and delightful measures); assonance and rhyme quicken the verse (arms, alarums). These balances and pairings put a final polish on Richard’s words. Few passages ever written are more measured. And that provides a final irony: the speech is a verbal reflection of that order which Richard’s falsehoods and blandishments will shatter. In Richard III, rhetoric provides the shaping strength of an exoskeleton – also its rigidity. Speeches march to the beat of rhetorical form rather


than course with the flow of everyday speech. By the time Shakespeare came to write King Lear (1604–05), he had mastered his craft more fully. When Kent addresses Lear, trying to prevent the king from dividing his kingdom, the courtier shifts from stately measures (“Royal Lear, whom I have ever honored as my king / Loved as my father, as my master followed . . .” [1.1.139–40]) to blunt and forthright language (“Be Kent unmannerly when Lear is mad. What wouldst thou do, old man?” [1.1.145–46]). No less than in Richard III, rhetorical figures function here. Rhetoric offered ways for a subject to cautiously broach a topic which a monarch might resent. Puritan gadfly Peter Wentworth, protesting his queen’s stern handling of the House of Commons, voiced dissent in the form of a chreia, a generalized, stylized address in praise of freedom of speech – trusting that he might win a hearing “by minutely observing the expected forms of Elizabethan discourse.”42 Yet rhetoric also offered more strenuous forms of protest, as Shakespeare too observed. Kent’s outburst represents the figure of “uncontrolled vociferation” – “liberty” to Cicero, “license” to Quintilian, “frankness of speech” in the Ad Herennium.43 This was recognized in Elizabeth’s day as the justified outburst of a loyal subject’s protest to a monarch, but the playwright makes it more: the break from respectful verse to reckless prose reflects the disorder into which Lear’s unwise choice will send the realm. The measure of Shakespeare’s artistry is the way in which, more skillfully than Marlowe, he fitted different rhetorical figures to different characters’ voices, and melded sound with sense at a level that Fletcher could only seldom reach.

The lawyers’ use of rhetoric The rhetorical training which students received in the Elizabethan grammar school continued at the Inns of Court. In The Book Named the Governor (1531), Sir Thomas Elyot considered that rhetorical concepts had been woven into the fabric of legal training. [I]n the learning of the laws of this realm, there is at this day an exercise wherein is a manner, a shadow or figure of the ancient rhetoric. I mean the pleading used in court and Chancery called moots, where first a case is appointed to be mooted. . . . The case being known, they which be appointed to moot, do examine the case, and investigate what they therein can espy which may make a contention, whereof may rise a question to be argued (and that of Tully is called constitutio, and of Quintilian status causae).44

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The common lawyers worked and thought as rhetoricians.45 They learned from Thomas Wilson’s The Art of Rhetoric (1551) to argue “artificial proofs,” extrapolations which could prove a perpetrator’s guilt.46 They analyzed such great cases as Shelley’s Case (1581) and Slade’s Case (1602) in terms of syllogism and material cause.47 The common lawyers were often mocked for their cultural insularity – in particular, for putting intellectual stock in the “ancient constitution” of their kingdom, the belief that their nation’s common law and political institutions had operated, unchanged, since the days of the Druids.48 Yet only superficially was this belief insular; it had classical foundations. To maintain that the common law had existed since British society came into being was of a piece with arguing that rhetoricians and lawyers had brought public society into being. The rhetoricians’ exemplum, and the concept of the case which lay behind it, took on new significance in the Elizabethan period. The term exemplum had enjoyed a long, illustrious association with the common law. First used in Roman jurisprudence, it reached England in the time of the Year Books, received into Law French as ensample, which judges used when speaking of single precedents. Francis Bacon described exempla similarly, as occasional decisions which might be acknowledged as persuasive and lawful.49 To the student of rhetoric, exempla were cases, relevant and analogous instances. To the student of law, exempla were opinions entitled to respect. That a single word combined both meanings helped import into the common law the concept of the case, the individualized set of facts upon which a reasoned judgment is passed. A particular category of exempla – judicia, or judgments – brought rhetoric and law even closer together. Erasmus commented: Judicia . . . are also, as we have said, classified as exempla. And they are the sententiae of famous writers, of peoples, of wise men or renowned citizens. . . . Likewise the apothegms of wise men are useful, of which type are the sayings of famous men reported by Plutarch. . . . To this class also belong proverbs, either those taken from authors, or popular sayings. For I do not see that public practices of people differ from exempla.50 A very similar passage in Thomas Wilson’s The Rule of Reason (1555) makes clear the connection between legal reasoning and the rhetorical paradigm. All such testimonies may be called sentences of the sage, which are brought to confirm any thing, either taken out of old authors, or else


such as have been used in this common life. As the sentences of noble men, the laws in any realm, quick sayings, proverbs, that either have been used before, or be now used. Histories of wise philosophers, the judgments of learned men, the common opinion of the multitude, old customs, ancient fashions, or any such like.51 Erasmus spoke of serious sayings and public practices. Wilson shifts the emphasis to laws, judgments, common opinion, and old customs – the raw material with which the common-law judge worked. The ease of this transposition may explain the self-confidence of the common law’s masters. From regarding public practice and common opinion as judicia, it was a short step to confirming custom with legal judgments.

Artifice in rhetoric and law The Elizabethan era was the period in which English law shifted from a medieval focus on doctrinal principle to a new model of jurisprudence, judge-made law reflected in decisions. Merchants sought better ways to pay creditors or sue debtors, patriarchs to replace women’s dower rights with jointure claims, landlords to wring money out of feudal obligations. New issues demanded new court decisions. Out of Year Book materials which focused on procedure, rules of substantive law had to be made. In this Coke led, first among equals. “Coke’s spurious Latin maxims,” Samuel Thorne wrote, perhaps too facetiously, “which he could manufacture to fit any occasion . . . are apt to introduce a new departure.”52 The exemplum had become the case report, a set of facts to which interpretations could be applied. New cases were decided, and new law was made, as the lawyers clinched their arguments by applying newly coined maxims to the facts of a case – using sententiae to put an advocate’s gloss on exempla. To hear the Queen’s Attorney end a courtroom appearance with a volley of Latin phrases might have recalled similar bursts of Latin taglines in Marlowe’s Doctor Faustus.53 New scrutiny was paid to the process by which the common lawyers shaped the emerging law. To explain their discipline, the common lawyers spoke in terms of artifice and convention. This was the familiar landscape of rhetoric, and the lawyers chose their terrain well. Rhetoricians claimed a special privilege for their discipline, that the highest eloquence could be achieved only by employing rhetorical forms. As Thomas Wilson declared, “Many speak wisely which never read logic, but to speak wisely with an argument, and to know the very foundations of things: that can none do, except they have some skill in

32 Allen D. Boyer

this art.”54 The comments of Puttenham are equally revealing: And though grave and wise councilors in their consultations do not use much superfluous eloquence, and also in their judicial hearings do much mislike all scholastical rhetorics: yet in such a case as it may be (and as this Parliament was) if the Lord Chancellor of England or Archbishop of Canterbury himself were to speak, he ought to do it cunningly and eloquently, which cannot be without the use of figures.55 In short, the rhetoricians claimed that the sophistication of their discipline made rhetorical discourse the only appropriate discourse for public life. The rhetoricians’ art and the lawyers’ discipline showed a common preference for art over nature. In 1588, Abraham Fraunce wrote: Logic is an art, to distinguish artificial logic from natural reason. Artificial Logic is gathered out of divers examples of natural reason, which is not any art of logic, but that ingraven gift and faculty of wit and reason shining in the particular discourses of several men, whereby they both invent, and orderly dispose. . . . This as it is to no man given in full perfection, so diverse have it in sundry measure. . . . And then is this logic of art more certain then that of nature, because of many particulars in nature, a general and infallible constitution of logic is put down in art.56 Fraunce’s concept of “artificial logic” bears close comparison with Coke’s concept of “artificial reason,” the wisdom of the judges, which represents his definition of law. The artifice applied by the rhetorician comes out of orderly invention and disposition, examination and discussion among thinkers schooled in the rhetorical arts. The artificial reason of the lawyer, likewise, is not natural reason, simple native intelligence; it is a proficiency which can be acquired only by an apprentice steeped in lawyers’ conventions. Coke put it thus: [R]eason is the life of the law, nay the common law itself is nothing else but reason; which is to be understood of an artificial perfection of reason, gotten by long study, observation, and experience, and not of every man’s natural reason; for Nemo nascitur artifex. This legal reason est summa ratio. And therefore if all the reason that is dispersed into so many several heads were united into one, yet could he not


make such a law as the law in England is; because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience grown to [such] perfection, to the government of this realm.57 Coke printed this passage in 1628, in his magisterial Commentary Upon Littleton. Twenty years earlier, facing an angry King James, he had dared to make the same assertion – to tell the king that, despite his majesty’s accomplishments, he lacked the professional training to decide cases at the common law.58 If rhetoric was held to be the highest form of expression, the orator was held to be the most honorable of men. Cicero had claimed that the orator combined eloquence with wisdom; Quintilian that the orator combined eloquence with virtue. Coke echoed this forcefully. Among students of the common law, he wrote, “I never saw any man of excellent judgment in these laws, but was withal . . . honest, faithful, and virtuous.”59 Coke’s own epitaph asserted similar claims – that the old judge had been integritas ipsa, verae semper causae constantissimus assertor, nec favore, nec muneribus violandus (the soul of honor, ever the steadfast champion of the cause of truth, not to be corrupted by bias or bribes). The rhetoricians’ equation of eloquence with rhetorical accomplishment could be given a corollary: that no trained rhetorician need accept an argument which did not employ the figures and conventions of rhetoric. To this corollary might be added a second: that as judges were wise and virtuous, the stewardship of the laws might well be entrusted to such savants. The master’s command of his discipline, in law as in rhetoric, provided an unanswerable claim to superior wisdom. Privileging rhetoric cleared the way for Coke’s privileging of the judges’ reason.

Conclusion As Spenser had urged, the Elizabethans framed a new kingdom for their expanding language. The best of them went beyond their masters. Not content merely to celebrate eloquence, they found in rhetoric new temptations and new strengths. What the lawyers claimed – that the true rhetorician was honest and virtuous – was not what the poets believed. Shakespeare doubted that rhetoric taught virtue. As Brian Vickers has written, [T]he good people in Shakespeare do not need to be persuaded: they are good already. . . . Persuasion in his plays is either evil, or has

34 Allen D. Boyer

unexpectedly bad results, or is futile. It is seldom glorious, or admirable, or Christian.60 Shakespeare’s most plausible rhetoricians are his greatest monsters, Richard of Gloucester and the insidious Iago. This skepticism may provide a critical component of Shakespeare’s artistry. Just as he created characters whose brilliant language deceived others, so he created characters who deceived themselves, and whose magnificent language could reflect their progress from self-deception into self-awareness: the eloquence, loss, and consolation of tragedy. And yet the lawyers did not deceive themselves completely. Beneath their self-congratulation, their talk of virtue and eloquence, one finds a hard core of professional consensus and intellectual cohesion. If the judges’ wisdom was summa ratio, it followed that judges might overrule opinions or rules which were less soundly considered. In 1610, in Bonham’s Case, Coke claimed for the judges the power to overrule statutes. “The common law will control acts of Parliament,” Coke wrote, “for when an act of Parliament is against common right and reason . . . the common law will control it, and adjudge such act to be void.”61 From this decision flows the doctrine of judicial review, the judge’s power to strike down insupportable laws. The lawyers, as ever, had been less subtle than the poets, but they claimed this triumph of their own. They had found a way to enforce what they found persuasive and just, a new way to follow eloquence with action.

Notes 1. Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (Palo Alto, CA: Stanford University Press, 2003), pp. 286–88. 2. Mark Eccles, Shakespeare in Warwickshire (Madison, WI: University of Wisconsin Press, 1961), pp. 97–98. 3. In 1603, both Coke and Shakespeare marched in the coronation procession of King James I. In 1615, Coke ruled on a dispute on enclosures at Welcombe, outside Stratford, where Shakespeare owned tithe revenues, and, later that same year, Coke supplied the Privy Council with an opinion on the lawfulness of erecting a new playhouse in the Blackfriars precinct. Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston, MA: Little, Brown & Co., 1957), p. 564; Victoria History of the County of Warwick, ed. L. F. Salzman and Philip Styles, vol. 3 (London: A. Constable, 1904), p. 267; Irwin Smith, Shakespeare’s Blackfriars Playhouse (New York: New York University Press, 1964), pp. 197–98. 4. Thomas Glyn Watkin, “Hamlet and the Law of Homicide,” Law Quarterly Review 100 (1984), 282–310.

Drama, Law, and Rhetoric 35 5. William Shakespeare, The Tragedy of King Richard the Second, 2.1.40–50. This and subsequent citations refer to William Shakespeare, The Complete Works, ed. Alfred Harbage (New York: Viking Press, 1969). 6. The Lord Coke His Speech and Charge, with a Discoverie of the Abuses and Corruption of Officers (1607; rpt. New York: Da Capo Press, 1972), sig. F1 r–v. On Coke’s literary connections, see John Marshall Gest, “The Writings of Sir Edward Coke,” Yale Law Journal 18 (1909), 504–32. 7. Boyer, Sir Edward Coke, p. 288; Marc L. Schwarz, “Sir Edward Coke and ‘This Sceptr’d Isle’: A Case of Borrowing?” Notes and Queries 233 (1988), 54. 8. Richard Schoeck, “The Borromeo Rings: Rhetoric, Law and Literature in the English Renaissance,” in Rhetoric and Pedagogy: Essays in Honor of James J. Murphy, ed. Winifred B. Horner and Michael Leff (Mahwah, NJ: Lawrence Erlbaum, 1995), p. 269. 9. See Peter Mack, Elizabethan Rhetoric: Theory and Practice (Cambridge: Cambridge University Press, 2002). 10. Brian Vickers, In Defense of Rhetoric (Oxford: Clarendon Press, 1983), pp. 258–83; Joel Altman, The Tudor Play of Mind: Rhetorical Inquiry and the Development of Elizabethan Drama (Berkeley, CA: University of California Press, 1978), pp. 43–53; Lawrence D. Greene, “Grammatica Movet,” in Rhetorica Movet: Studies in Historical and Modern Rhetoric in Honor of Heinrich Plett, ed. Peter L. Oesterreich and Thomas O. Sloane (Leiden: Brill, 1999), pp. 73–115; and particularly T. W. Baldwin, William Shakspere’s Small Latine and Lesse Greeke (Urbana, IL: University of Illinois Press, 1944). Schooling seems to have been less standardized for young women. Although the number of schoolgirls was not inconsiderable – dozens of licensed schoolmistresses have been identified in Elizabethan London – their instruction was more informal and irregular, leaving fewer traces. Jay P. Anglin, The Third University: A Survey of Schools and Schoolmasters in the Elizabethan Diocese of London (Darby, PA: Norwood Editions, 1985), pp. 75–90. 11. C. S. Lewis, English Literature in the Sixteenth Century Excluding Drama (Oxford: Clarendon Press, 1962), p. 61. 12. Donald Lemen Clark, “The Rise and Fall of Progymnasmata in Sixteenth and Seventeenth Century Grammar Schools,” Speech Monographs 19 (1952), 261; Ray Nadeau, “The Progymnasmata of Apthonius in Translation,” Speech Monographs 19 (1953), 264–85. 13. Quintilian, Institutio Oratoria, 6.1.25–26, trans. H. E. Butler (Cambridge, MA: Loeb Classical Library, 1920). 14. Ad Herennium, 4.49.62–4.51.64, trans. H. Caplan (Cambridge, MA: Loeb Classical Library, 1954). 15. Brian Vickers, Classical Rhetoric in English Poetry (New York: St. Martin’s Press, 1970), pp. 83–121. 16. George Puttenham, The Arte of English Poesie, ed. Gladys Doidge Willcock and Alice Walker (1589; rpt. Cambridge: Cambridge University Press, 1936), p. 138. 17. The following discussion draws on Eugene M. Waith, The Pattern of Tragicomedy in Beaumont and Fletcher (New Haven, CT: Yale University Press, 1952), pp. 87–98. 18. Waith, The Pattern of Tragicomedy, p. 89.

36 Allen D. Boyer 19. R. R. Bolgar, The Classical Heritage and Its Beneficiaries (Cambridge: Cambridge University Press, 1954); Ann Moss, Printed Commonplace Books and the Structuring of Renaissance Thought (Oxford: Clarendon Press, 1996); see also Desiderius Erasmus, On Copia of Words and Ideas [De Copia], trans. Donald B. King and H. David Rix (Milwaukee, WI: Marquette University Press, 1963), p. 90. 20. Lewis & Short, A Latin Dictionary (1980 ed.), s.v. “exemplum.” 21. Erasmus, De Copia, p. 68. 22. Erasmus, De Copia, p. 76. 23. Erasmus, De Copia, pp. 90–91. 24. Cicero, De Inventione, 1.2.2, trans. H. M. Hubbell (Cambridge, MA: Loeb Classical Library, 1949). 25. Puttenham, The Arte, p. 196. 26. Brian Vickers, “The Power of Persuasion: Images of the Orator, Elyot to Shakespeare,” in Renaissance Eloquence: Studies in the Theory and Practice of Renaissance Rhetoric, ed. James J. Murphy (Berkeley, CA: University of California Press, 1983), p. 415. 27. Stephen Hawes, The Pastime of Pleasure (1517), quoted in Vickers, “The Power of Persuasion,” p. 415. 28. Quoted in Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago, IL: University of Chicago Press, 1992), p. 1. 29. Christopher Marlowe, Tamburlaine, 4.3.53–55, ed. J.B. Steane (Harmondsworth, Middlesex: Penguin Books, 1969). Subsequent citations to Marlowe refer to this edition. Marlowe was never more a schoolman than when, among the atrocities of St. Bartholomew’s Day, he focused on the murder of the Huguenot rhetorician Pierre de la Ramée, alias Petrus Ramus. John Ronald Glenn, “The Martyrdom of Ramus in Marlowe’s The Massacre at Paris,” Papers on Language and Literature 9 (1973), 365–79. 30. Donald Peet, “The Rhetoric of Tamburlaine,” English Literary History 26 (1959), 143. 31. Peet, “The Rhetoric,” 146. 32. Peet, “The Rhetoric,”139–40, 150–54. 33. Waith, The Pattern of Tragicomedy, pp. 132–38, 203–07. 34. Waith, The Pattern of Tragicomedy, p. 174. 35. Alexander H. Sackton, Rhetoric As a Dramatic Language in Ben Jonson (New York: Columbia University Press, 1948), pp. 116–17; Ben Jonson, Works, ed. Charles Harold Herford, Percy Simpson, and Evelyn Simpson, vol. 8 (Oxford: Clarendon Press, 1925), pp. 116–17. 36. Sackton, Rhetoric As a Dramatic Language, p. 22; Jonson, Works, pp. 576–77. 37. Sackton, Rhetoric As a Dramatic Language, pp. 41–42; Jonson, Works, pp. 640–41. 38. Walter J. Ong, Ramus: Method and the Decline of Dialogue (Cambridge, MA: Harvard University Press, 1958), pp. 121–26. 39. Nadeau, “The Progymnasmata,” p. 271; Altman, The Tudor Play of Mind, p. 47. 40. Othello, 1.1.76–170. See Heinrich F. Plett, “Shakespeare and the Ars Rhetorica,” in Rhetoric and Pedagogy, ed. Horner and Leff, pp. 243–59, 249. 41. Sister Miriam Joseph, Shakespeare’s Use of the Arts of Language (New York: Columbia University Press, 1947); Vickers, In Defense of Rhetoric, p. 279. 42. Mack, Elizabethan Rhetoric, pp. 1–2.

Drama, Law, and Rhetoric 37 43. Diane Parkin-Speer, “Freedom of Speech in Sixteenth Century English Rhetorics,” Sixteenth Century Journal 12 (1981), 65–72. 44. Sir Thomas Elyot, The Book Named the Governor, ed. John M. Major (1531; rpt. New York: Columbia University Teachers’ College, 1969), p. 125; Wilfrid Prest, The Inns of Court under Elizabeth I and the Early Stuarts 1590–1640 (London: Longman, 1972), pp. 115–73. 45. Richard Schoeck, “Lawyers and Rhetoric in Sixteenth-Century England,” in Renaissance Eloquence, ed. James J. Murphy, pp. 274–91; Allen D. Boyer, “Sir Edward Coke, Ciceronianus,” International Journal of the Semiotics of Law 10 (1997), 3–36. 46. Barbara Shapiro, “Classical Rhetoric and the English Law of Evidence,” in Rhetoric and Law in Early Modern Europe, ed. Victoria Kahn and Lorna Hutson (New Haven, CT: Yale University Press, 2001), pp. 54–72. 47. Sir John Dodderidge, The English Lawyer (1631; rpt. New York: Da Capo Press, 1973), pp. 146–47; David Harris Sacks, “The Promise and the Contract in Early Modern England: Slade’s Case in Perspective,” in Rhetoric and Law, ed. Hutson and Kahn, p. 30. 48. See J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957). 49. Sir John Baker, Manual of Law French, 2nd ed. (Aldershot, Hampshire: Scolar Press, 1990), s.v. “ensample”; Daniel R. Coquillette, Francis Bacon (Edinburgh: Edinburgh University Press, 1992), pp. 245–46. 50. Erasmus, De Copia, p. 80. 51. Thomas Wilson, The Rule of Reason (1551; rpt. New York: Da Capo Press 1970), sig. M5r–M6r. 52. Samuel Thorne, Essays in English Legal History (London: Hambledon Press, 1985), p. 227. 53. See Doctor Faustus, 2.1.45–67. 54. Wilson, The Rule of Reason, sig. O2r–O2v. 55. Puttenham, The Arte, p. 139. 56. Abraham Fraunce, The Lawiers Logic, exemplifying the praecepts of Logic by the practise of the common Lawe (1588), sig. Bii. 57. Sir Edward Coke, A Commentary Upon Littleton (1628), 97b. 58. Roland G. Usher, “James I and Sir Edward Coke,” English Historical Review 18 (1903), 664–75. 59. Cicero, De Oratore, 3.14.54–3.15.57, trans. H. Rackham (Cambridge, MA: Loeb Classical Library, 1942); Quintilian, Institutio Oratoria, Preface to Book I, trans. H. E. Butler (Cambridge, MA: Loeb Classical Library, 1936); Sir Edward Coke, Preface to the Second Part of the Reports (1602), rpt. in Selected Writings and Speeches of Sir Edward Coke, ed. Steven Sheppard, vol. 1 (Indianapolis, IN: Liberty Fund, 2004), p. 40. 60. Vickers, “The Power of Persuasion,” p. 423. 61. Bonham’s Case, 8 Co. Rep. 107a, 118a (1610).

3 The Wilde Side of Justice in Early Modern England and Titus Andronicus Dympna Callaghan and Chris R. Kyle

“I racked him,” is the triumphant handwritten insertion against the name of a Catholic priest in the history of the Jesuit mission to England, kept as a convenient guide to England’s most wanted by the notorious Elizabethan pursuivant and torturer Richard Topcliffe (1531–1604). The doodle of a stick figure hanging from the gallows serves as the gleeful marginal record of another priest’s execution.1 Topcliffe could be a character out of William Shakespeare and George Peele’s Titus Andronicus (1590). Mutilation and dismemberment are the signatures of that play, techniques in which, albeit on a slightly more mundane level, Topcliffe also specialized: distending limbs on the rack, applying “the manacles” (the English version of the strappado), and a variety of other techniques including the use of hot tongs, bone saws, and sharp objects. Topcliffe had, in addition, a particular predilection for torturing members of the Society of Jesus (founded by Ignatius Loyola in 1540), who sought to bring Counter-Reformation Catholicism to England. Officially this constituted prealable or preliminary punishment insofar as it was the precursor to the execution of a capital sentence (in this case for treason), which automatically applied to Jesuits, whose very presence contravened a statute of 1584/85.2 Priests were tortured by Topcliffe, therefore, not only for evidence that would incriminate or convict them, but importantly also for information about Jesuit activity in the realm. Just as the characters in Shakespeare and Peele’s play mete out their cruelty with zeal and relish, Topcliffe similarly enjoyed his work: he had a torture chamber installed in his living quarters at Bridewell.3 Among those he tortured, by all accounts with fanatical zeal, were the Catholic poet Robert Southwell and the Jesuit priests John Gerard and Henry Garnet; he also interrogated Ben Jonson and Thomas Nashe regarding their scandalous play The Isle of Dogs. Feared and loathed by his contemporaries, who 38

The Wilde Side of Justice 39

coined the word “Topcliffian” to refer to brutal excess and monstrous reprisal,4 Topcliffe became so synonymous with an insatiable appetite for sadistic pleasure that his nephew endeavored to rid himself of the stigma by changing his name.5 Topcliffe emerges from the historical record bearing a distinct similarity to the characters in Shakespeare’s early tragedy, that is, gruesomely comic, deranged, a figure of lurid fascination. It is significant that despite his notoriously grisly operations, Topcliffe worked entirely within the legal jurisdiction of the crown, and immediately under the direction of the Queen’s Privy Council. An established member of the gentry, he had a respectable past and close connections to the government. He married a peer’s daughter, received patronage from the earls of Leicester, Warwick, and Shrewsbury, and also served as a member of Parliament on three occasions.6 Topcliffe was, to use a contradiction in terms, a kind of legal avenger. While in this he may have been more hands-on than men more advanced in the judicial hierarchy, he was not alone. Edward Coke and Francis Bacon, along with other members of Queen Elizabeth’s legal counsel, played an integral part in the torture of suspected traitors in the late 1590s,7 and Bacon, in a letter to King James in 1603, rationalized torture as a necessary part of the judicial process of discovery.8 The key point was not that torture per se was wrong, but only that it should be used wisely and carefully in the service of the state. There was, of course, a fine line – indeed, sometimes only a specious distinction – between the use of force with the authority of the state and the zealousness of individual operatives. We know that on one occasion at least Topcliffe fell foul of his “masters,” the Privy Council, who deemed that he had gone too far and imprisoned him.9 That Topcliffe’s operations sometimes crossed even the widely drawn boundary of state-sanctioned torture is instructive. Topcliffe’s zealousness caused him to stray into the murky arena designated by Francis Bacon as “wilde justice.” Bacon’s telling phrase, of course, refers specifically to revenge, the subject of his essay entitled “Of Revenge,” which was added to his Essays or Counsels, Civill and Morall10 in the first decade of James I’s reign as king of England: “Revenge is a kinde of Wilde Justice; which the more Mans Nature runs to, the more ought Law to weed it out. For as for the first Wrong, it doth but offend the Law; but the Revenge of that wrong, putteth the Law out of Office.”11 In “wilde justice” Bacon thus acknowledges that a significant range of practices both legal and criminal are motivated by the endeavor to right wrong, whether the aim (ostensibly Topcliffe’s) is the legitimate intention to expose perceived villainy and bring culprits to justice or the extralegal attempt to retaliate. “Wilde justice,” then, uncovers a key insight about

40 Dympna Callaghan and Chris R. Kyle

the whole gamut of operations of early modern English law and order, in particular the problematic contiguity between legal and extralegal reprisal. Most of Topcliffe’s operations, however, suggest the many ways in which justice might itself be inherently excessive, that is, synonymous with rather than different or distinct from “wilde justice.” This idea is generally occluded in legal discourse because “the Law” needs to differentiate itself from the chaotic violence of extralegal reprisal. Since the “wilde” side of justice is therefore a covert element, we deliberately do not take the period’s understanding of justice on its own terms. Thus, we do not seek to elucidate technical distinctions between, for example, torture used for “discovery” and torture used to coerce confession, let alone the well-worn distinctions between public and private vengeance.12 Rather, the object of our inquiry is the contiguity between “wilde justice” and “justice,” which reveals itself plainly enough in actual cases of physical mutilation and in the drama of the period, most especially in revenge tragedy. It is in the context of the attempts by the Tudor and Stuart state to gain a monopoly over retaliation for injuries and of the ideological struggle to differentiate the state’s frequently bloody operations from those of “wilde justice” that revenge drama becomes one of the most popular genres on the early modern stage. There are, as we shall see, revenge comedies as well as tragedies, and by dint of its emphasis on justice in “excess” and overkill, revenge tragedy presents the messily interconnected forms of both “wilde justice” and the “wilde” side of justice in distortedly comic forms. This is nowhere more clear than in the hysterically retributive Titus Andronicus, where “getting even” is literalized and parodied as grotesque mutilation. In that play, as readers will recall, the Roman victory against the Goths is sealed with the ritual slaying (“sacrifice”) of Alarbus, the eldest son of Tamora, the Queen of the Goths, and serves to instigate a bloodbath in the heart of the Roman Empire. Lavinia, Titus’s daughter, is raped and mutilated by Tamora’s sons, Chiron and Demetrius, who are in turn incited by the black villain, Aaron. In the course of the play, several characters lose limbs (Titus loses his hand), and Titus has the brothers who violated his daughter baked into a cannibalistic pie for their mother to eat. It is tempting to think that from the safe distance of theatrical representation, the gallows humor of Titus is not analogous to the serious business of state justice. However, especially in the torture, mutilation, and martyring of people for their religious beliefs, we encounter at times an accurate reflection of historical reality. Titus, then, reflects both the state’s struggle to appropriate revenge and the aberrant, arbitrary, and excessive justice alive and well in England at the time that gives rise to a


certain “horrid laughter” – precisely the kind of justice epitomized by revenge tragedy.13 * * * There were direct connections in Elizabethan England between literature and “wilde justice,” whether the latter is understood as (legal) judicial excess or as the extravagance and outrage of (illegal) private retribution. The playwrights Thomas Norton and Anthony Munday, the authors of Gorbuduc14 and Fidele and Fortunio, were, for example, themselves dispensers of Elizabethan justice, “searchers of secrets,” who applied “the intolerable torment of the rack” to Catholics.15 That the play of “Rackmaster” Norton, Gorbuduc, was probably a source for Titus Andronicus offers a disturbing but direct link between judicial torture and the violence of the stage.16 Awareness of this very immediate context might transform our understanding of an important critique of state justice formulated by Titus late in Titus Andronicus, in reference to the instigation of the iron age, which renders the entire play a consequence of the state’s failure to appropriate revenge and gain a monopoly on reprisal. TITUS: Terras Astraea reliquit. Be you rememb’red, 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: No, Publius and Sempronius, you must do it; ’Tis you must dig with mattock and with spade, And pierce the inmost center of the earth: Then, when you come to Pluto’s region, I pray you deliver him this petition: Tell him, it is for justice and for aid, And that it comes from old Andronicus, Shaken with sorrows in ungrateful Rome. Ah, Rome! Well, well; I made thee miserable What time I threw the people’s suffrages On him that thus doth tyrannize o’er me. Go, get you gone, and pray be careful all, And leave you not a man-of-war unsearched: This wicked emperor may have shipped her hence, And, kinsmen, then we may go pipe for justice.17


The 1590s, at least from the official point of view, were a period when one might expect to do more than “pipe” (whistle) for justice, especially after having gone through such appropriate mechanisms as “suffrage” and “petition.” The increasing centralization of justice through the Tudor regime sought to make the arbitrary violence of baronial license a thing of the past.18 However, in the world with which Titus Andronicus opens, responsibility for justice has been abandoned by the state and we enter a realm of moral and judicial chaos and escalating violence where the mortal antagonisms between Titus, the general who has valiantly defended Rome, and the Goths is pursued without even the rules of engagement that exist in wartime. Furthermore, enmities are exacerbated rather than assuaged by the “peace-time” marriages effected at the opening of the play, especially that between Tamora and the Roman Emperor, Saturninus. While Astraea’s desertion of the earth was well known from Ovid’s Metamorphoses (1.150), this is a particularly resonant iteration of the idea in an era defined by the iconography of Elizabeth I as Astraea, the virgin prophesied by Virgil to have returned to the earth (rather than to have abandoned it) to reestablish the Golden Age.19 There is something incongruent about the fact that it was in this allegedly Elizabethan Golden Age that Titus is one of what R. A. Foakes calls “the Rose spectaculars,”20 in which bloody theatrical exhibition holds sway. As one of its earliest viewers, a French tutor in the household of Sir John Harington, famously remarked, “le monstre a plus value que le sujet” (the spectacle is more valuable than the subject matter).21 But with hindsight, specifically that of Bacon’s essay on revenge, spectacle is instructive insofar as it demonstrates, admittedly with salacious enjoyment rather than moral condemnation, that revenge is the savage and chaotic reprisal for wrong. Lavinia’s ravished and mutilated body, “lopped and hewed” (2.3.17), is made a spectacle for much of the play in a cycle of mimetic vengeance which begins when “Alarbus’ limbs are lopped / And entrails feed the sacrificing fire” (1.1.146). In Titus we are presented with rabid and rapid decimation, and there is particular emphasis on bodily mutilation: “Give us the proudest prisoner of the Goths, / That we may hew his limbs on a pile” (1.1.96–97). Lavinia, too, is “trimmed,” which connotes both sexual intercourse and the preparation of meat in butchery: AARON: They cut thy sister’s tongue and ravished her And cut her hands and trimmed her as thou sawest. LUCIUS: O detestable villain, call’st thou that trimming? AARON: Why, she was washed and cut and trimmed, and ’twas Trim sport for them which had the doing of it. (5.1.93–97)


This was a spoof of Seneca – hacked limbs take quite literally the notion of “getting even” and in the process create staggering deformity, a perpetual lopsidedness.22 In a motif analogous to the balance wrought by the scales of justice, the ostensible aim of revenge was parity, the inflicting of an injury equivalent to the one that was suffered. As Bacon put it: “[I]n taking revenge a man is but even with his enemy.” However, the pursuit of retributive equity, according to Bacon, leads to the phenomenon of mimetic violence: “[V]indicative Persons live the Life of Witches; who as they are Mischievous, So end they Infortunate.”23 Just as the vengeful become “like witches” – that is, they become the very image of the ill they strive to combat – justice itself operates in a mimetic relation to the revenge it appropriates – hence the vicious circle of violence. The two severed heads, the dismembered hand, and the raped Lavinia, with neither hands nor tongue, ordered to carry her father’s severed hand between her teeth in Titus Andronicus quite literally represent overkill, in which death itself is an insufficient remedy for perceived wrongs (3.1.283).24 The play puns relentlessly on mutilation, especially on “hands.” The audience first encounters Lavinia’s handlessness when her uncle compares her with Philomela25 in describing her inability to sew, as Philomela did, the names of her attackers: But, lovely niece, that mean is cut from thee. A craftier Tereus, cousin, hast thou met, And he hath cut those pretty fingers off, That could have better sewed than Philomel. O, had the monster seen those lily hands Tremble like aspen leaves upon a lute And make the silken stings delight to kiss them, He would not then have touched them for his life. (2.3.40–47) Despite the complex sensuality with which both sewing and female musicianship were sometimes associated, “the pretty fingers” and “those lily hands” serve as a kind of rhetorical prosthesis, compelling the audience to focus on the missing limbs. Mutilation had, of course, been a key principle of retributive justice since the Code of Hammurabi (c.1780 BCE), sixth king of the Amorite Dynasty of Old Babylon, who claimed to have received the law from Shamash, the god of justice: “If a son strike his father, his hands shall be hewn off. If a man put out the eye of another man, his eye shall be put out. If he break another man’s bone, his bone shall be broken.” The dispensation of this justice was


often left to the victim’s family, and it is precisely this principle of violent but measured reprisal that Lucius invokes when Titus is finally killed by Saturninus: “Can the son’s eye behold his father bleed? / There’s meed for meed, death for a deadly deed” (5.3. 64–65). In the Law of Moses, these principles of retributive exactitude were rendered as “Eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, stripe for stripe” (Exodus 21:24–25), which the Geneva Bible of 1575 annotated in a way that confined it to the princes of the judiciary: “the execution of this law only belonged to the magistrates.”26 The metaphor of retributive exactitude is taken up in the play in Act 3 when Titus asks, “Lavinia, what accursed hand / Hath made thee handless in thy father’s sight?” (3.1.66–67). He then volunteers to chop off his own: “the one will help to cut the other” (68). He succeeds in doing so after a brief competition with his son, Lucius, as to which of them will sacrifice a hand in the mistaken belief it will save the lives of Lucius’s brothers. There is in these lines a sense that there is something essentially self-mutilating about the dizzy cycle of retribution, as well as an eerie resemblance to Christ’s radical revision of Judaic law in the Sermon on the Mount: “And if thy right hand offend thee, cut it off, and cast it from thee” (Matthew 5:30). The irreligious Aaron describes his own reaction to these events in a way that may also articulate the audience’s own complex response: “When for his [Titus’s] hand he had his two sons’ heads” (5.1.115), “[I] almost broke my heart with extreme laughter” (113). But it is not only someone similar to the Machiavel-like Aaron or the sadistic Topcliffe who might take delight in revenge. For Edward Coke, Attorney-General, justice was sweetest when it was speediest, which mirrors both the notion of “swift revenge” and the idea that there inheres within the execution of vengeance a certain perverse pleasure. Of course, when justice operates effectively, the state’s processes must provide resolution in a timely manner, and this type of judicial efficiency is different in kind from dispatching an enemy immediately in a moment of extreme ire. “Wilde justice” is, in contrast, always executed with violent speed – axe wielding, bloody, and fueled by uncontrollable choler like the “coals” carried by the servants of the feuding houses at the opening of Romeo and Juliet (1595; 1.1.1). As in the case of the Montague and Capulet quarrel, the initial wrongdoing is not always selfevident. Crucially, it is the perception of injury, rather than its absolute fact, that motivates revenge. Justice, in contrast, articulates the original wrong and, ideally at least, controls and contains intemperate and especially potentially bloody or sadistic retributive impulses. The idea of


revenge as “a dish best served cold,” as something that could be executed with anything other than swift, albeit Machiavellian, rage, was not fully articulated until the eighteenth century – for instance, delay provides no satisfaction to Hamlet. The idea that La vengeance est un plat qui se mange froid could emerge only when legal remedy had so thoroughly appropriated the mechanism of revenge that belated retribution allowed the avenger to savor all the more the return of his injury and to refine the new art of inflicting exquisite torment without violence.27 The impulses and energies that inform the practice of vengeance do not vanish from the cultural horizon as the state attempts to appropriate them. Rather, they emerge in other forms within the judiciary itself – within the state-sanctioned mechanisms of crime and punishment. Thus, despite the state’s efforts to confine and rhetorically reposition the bodily violence that characterized revenge, it persisted as a continuing (if unacknowledged) formal element assimilated into official punishment. Since justice modifies and moderates “wilde justice” and aims to transform revenge into deserved punishment, it is interesting that by the time the blood and horror of Senecan revenge tragedy are rendered in an Elizabethan and Jacobean context, they become mildly risible. Thus, Ferdinand in The Duchess of Malfi, who wants vengeance on his widowed sister for what is hardly a criminal remarriage, suffers hysterically from the disease lycanthropia – that is, he thinks he is a wolf who has hair on the inside. Although the gore of Titus Andronicus is not unique (Shakespeare’s coauthor, George Peele,28 had produced a dish of heads for a bloody banquet in his earlier play The Battle of Alcazar, published in 1594), the connection between horror and humor is nowhere more apparent than in Titus, the play from which Jacobean tragedy picks up its representational thread with risibly grisly plots. Some, including Cyril Tourneur’s The Atheist’s Tragedy (1611), end with hideously hilarious conclusions: D’Amville accidentally becomes the instrument of providential justice by striking off his own head with an axe.29 Notoriously, Titus laughs “Ha, ha, ha!” in Act 3.1.261, despite the fact that laughter “fits not with this hour” (3.1.266) and the appropriate response is the one his brother Marcus dictates, “Now is a time to storm” (3.1.264). The comic response is associated with villainy, and further it is the pleasure of revenge registered in the drama by comedy that transforms the victim into the image of the perpetrator. John Kerrigan has pointed out this natural affinity between revenge tragedy and the ridiculous, and his remarks on the drama could be equally applied to Topcliffe: “Sour wit and giggling sadism are recurrent traits of the revenger.”30 We would argue that the risibility of revenge arises as a consequence of its


inherently mimetic mechanism. The avenger’s doomed victim attempts duplication, paying back the original wrong in kind and with interest; avenger and victim are somewhat analogous to twins who are cute in their identical dress in childhood but become ludicrous when they persist in the practice into adulthood. The province of their identity is now a freak show because it represents the determined exhibition of similitude as well as its extension and exaggeration. Thus, the mimetic momentum of revenge toward exaggeration, repetition, and exhibition sweeps it into the sphere of comedy. This admixture of humor and horror was also apparent in the exhibition of public punishments.31 Before the Armada in 1588, priests were hanged as traitors at distant Tyburn; thereafter, identified as potential collaborators with an invasion force, they were strung up on new gibbets in the most public spaces all over London, including Finsbury Fields in Holywell near the Theatre and Curtain, where William Gunter was hanged on August 28, 1588, and William Harley on October 5, 1588.32 That is to say, there was a new attempt by the crown and by William Cecil, Lord Burghley, and his operatives to make a spectacle of the culprits and to make that spectacle as popularly available and accessible as possible. A briefe Treatise Discovering in substance the offences, and ungodly practices of the late 14. Traitors condemned on the 26. Of August 1588 gives an account of these events: Then was William Guntur convaied into Hollywell fieldes neere to the Theator or Playhouses where maiseter sheriffe willed him to call upon God for pardon and acknowledge his offences to hir majestie whereat he aunswered that he would aske pardon of God, but not of hir Maiestie, saying he had never offended her, and so he was hanged upon a newe Jebbit prepared for him.33 In response to all this, the crowd then sang the humorous rhyme “This man for the Pope is hanged with a rope.”34 In Titus Andronicus’s most serious consideration of mutilation, the audience is invited in Act 3 to look again with Titus at Lavinia’s “martyred signs,” first displayed in the stage direction in 2.3: “LAVINIA, her hands cut off and her tongue cut out, and ravished.” The word “martyred” is a pun. Until at least the mid-seventeenth century, “martyr” was a verb meaning to spoil or mutilate as well as a noun designating one who suffers and dies for his or her faith. In terms of this latter meaning, the word was probably best known from Foxe’s Acts and Monuments (1563), the widely disseminated book of Protestant propaganda popularly


known as Foxe’s Book of Martyrs, which detailed the sufferings of those who died under the murderous rule of Bloody Mary (Tudor) among others. “Martyred,” then, had decidedly religious overtones in reference to those who died for their faith (both Protestant and Catholic). In the context of the scene in the play, “martyred” literally means “mutilated,” but the word “martyred,” and therefore its double meaning, is emphasized by repetition at line 3.3.108, and again at line 82: “who hath martyred thee.” Religious martyrdom itself had a disfiguring dimension. The Jesuit Edmund Campion’s thumb was hacked from his body after his execution at Tyburn, and later divided into two and enshrined at Rome and Roehampton.35 Jesuit Robert Parsons remarks that “the loss was quickly discovered, but the thief could never be found.” The hangman “reluctantly refused twenty pounds for another joint.”36 Indeed, the souveniring of body parts of martyrs seems to have been a common practice. William Hart’s execution in 1583 saw the sympathetic crowd steal away with both his clothes and various parts of his body. Heads, arms, shoulders, fingers, thumbs, and even intestines were whisked away from other executed Catholics both as relics and to prevent the state from further defiling the bodies. As Peter Lake and Michael Questier have noted, these practices and “handkerchief-dipping” in the blood of the executed were “all the rage.”37 Whatever this tells us about Catholicism in England, it also tells us about the fray that might accompany execution – which could include, for whatever motivation, the desecration, specifically the dismemberment, of the corpse. Shakespeare may have had such relics in mind, and given that he was the son of a glovemaker, the sixty references to hands in Titus may indicate that hands had a particular significance for him.38 Be that as it may, the play’s retributive violence is connected, as it was in early modern England, with religion. After ten years of warfare, the hero has returned to Rome, and at this day To the monument of the Andronici Done sacrifice of expiation, And slain the noblest prisoner of the Goths. (1.1.35–38) That this killing, the first reprisal at the very beginning of the play, is an act of specifically religious violence whose altar has been the tomb of the Andronici suggests that the play’s meditation on justice and reprisal is deeply entrenched in the internecine struggle of Christianity in postReformation England. Alarbus’s murder is committed to expiate the


ghosts of the Andronici, the sons of Titus, who have been killed in the war by the Goths. The latter, unsurprisingly, view this neither as an act of justice nor as a legitimate religious rite, but as “cruel irreligious piety!” (1.1.30) and Scythian-like barbarity: “Was never Scythia half so barbarous” (1.1.131). Scythia was an uncivilized region north of the Black Sea, and it is used here to epitomize all that is wild and uncultivated. That this act, the murder of Alarbus, instigates the subsequent murders and mutilations in the play has further significance in light of the fact that it is an element missing from Dutch and German versions of the story, and thus seems to have been an element, and a pointedly religious one, that Shakespeare and Peele sought to emphasize.39 The play focuses to a curious degree on the brutal violence that, as we have seen, was associated with religious torture by the likes of Topcliffe, Norton, and Munday. In the bloody banquet of Act 5, Titus’s revenge is complete. In his desecration of commensality to celebrate newly wrought concord, he has finally gone one better than all his enemies and, in addition, killed Lavinia to save her from living disfigured and disgraced: TAMORA: TITUS:

Why hast thou slain thine only daughter thus? Not I; ’twas Chiron and Demetrius: They ravished her and cut away her tongue; And they, ’twas they, that did her all this wrong. SATURNINUS: Go fetch them hither to us presently. TITUS: Why, there they are, both baked in this pie, Whereof their mother daintily hath fed, Eating the flesh that she herself hath bred. (5.3.54–62) While the cannibalistic banquet prepared by Titus reflects classical precedent – namely, that served by Tantalus to the gods – there are also more immediately contemporary reverberations. In Reginald Scot’s Discoverie of Witchcraft (1584), a chapter on “The Cannibals crueltie, of popish sacrifices exceeding in tyrannie the Jewes or Gentiles” bears the following marginal note “Against the papists abhominable and blasphemous sacrifice of the masse”: The incivilitie and cruell sacrifices of popish preests do yet exceed both the Jew and the Gentile: for these take upon them to sacrifice Christ himselfe. And to make their tyrannie the more apparent, they are not contented to have killed him once, but dailie and hourelie torment him with new deaths; yea they are not ashamed to sweare,


that with their carnall hands they teare his humane substance, breaking it into small gobbets; and with their external teeth chew his flesh and bones, contrarie to divine or humane nature; and contrarie to the prophesie, which saith: “There shall not a bone of him to be broken” (Psalms, 34, 20). Finallie, in the end of their sacrifice (as they say) they eate him up rawe and swallow him into their guts everie member and parcel of him: and last of all, they conveie him unto the place where they bestowe the residue of all that which they have devoured that daie. And this same barbarous impietie exceedeth the crueltie of all others: for all the Gentiles consumed their sacrifices with fier, which they thought to be holie.40 Like all avengers, Scot perceives the enemy as possessing the capacity for terrifying depravity. Although ostensibly he takes the Catholic doctrine of transubstantiation (the actual rather than the symbolic transformation of the Eucharist into the body and blood of Christ) to be nonsense, he does suggest (though surely he cannot actually believe) that papists are guilty of, or at least fully capable of, cannibalism. Like the banquet, there is an analogous motif in the initial killing of Alarbus, which is specifically referred to as a sacrifice (1.1.147) and further as an explicitly Roman rite, a term which was in early modern English synonymous with the Mass: “See, lord and father, how we have performed / Our Roman rites” (1.1.144–45). This is not, however, to align the play with either a Protestant or a Catholic ideology – in fact, the play displays an enormously complex response to religious sectarianism – but it is to say that mutilation and dismemberment had both judicial and religious dimensions.41 * * * Excess, mutilation, and “wilde justice” in early modern England were not confined to the realm of religion and the Protestant/Catholic divide. When Bacon wrote his essay on revenge near the beginning of the Jacobean era, it was at a moment when there was an exponential increase in the settling of private scores among dueling gentlemen, and his remarks, which necessarily reflect that immediate context,42 may at first seem a long way from the butchery of Titus Andronicus. Uncontained, aristocratic unrest could lead (as it did in 1569 in the rebellion of the Northern earls) to a threat to the crown, and even, as was feared in the wake of the Armada, an allegiance with hostile powers. In light of the threat, the 1590s, the decade in which Titus was written,


saw a renewed concern to appropriate violence to the state. Further, while Shakespeare and Peele’s tragedy does not on the whole reflect accurately types of judicial punishment in early modern England43 (for example, felons did not have their hands cut off), other forms of mutilation were used as a legal redress for both felonies and libels.44 Mutilation was a more extreme version of branding, which also marked the crime indelibly on the body of the criminal. There was, of course, a difference even in terms of the desired effects of judicial mutilation. In the case of most ordinary criminals sentenced at the assizes, punishments such as public whipping were meant not only to punish but also to provide the spectacle of punishment to deter the crowds of witnesses from committing similar offences. The state was shown to be meting out justice. Justice, too, was the end point of most brandings in early modern England. The thief who had escaped the gallows for grand larceny by pleading benefit of clergy was branded on the thumb with a “T” (“thief”) not so much to deliberately mutilate the body as to make the person recognizable to the courts as someone who had pleaded clergy once and thus could not do so again. Ben Jonson, who had narrowly escaped the extreme interrogatory techniques of Topcliffe, was himself branded with an “M” for “murderer,” having pleaded the neck verse to avoid execution for killing the actor Gabriel Spencer in a duel.45 However, if we take the cause célèbre of “justice” in the 1630s, the Puritan William Prynne, then we can see the state meting out not only justice but vengeance as well. Prynne’s trials before Star Chamber in 1633 for authoring and publishing Histrio-Mastix, which criticized the theater and other recreations, and in 1637 for attacking the “popish practices” of some bishops, notably the Archbishop of Canterbury, William Laud, display the state’s justice in a different light and with different consequences.46 Indeed, the physical mutilation of Prynne as part of his punishment by Star Chamber rebounded upon the state, turning him into one of the most recognizable figures in mid-seventeenthcentury England and providing Prynne with a great propaganda weapon against his archenemy, William Laud.47 In fact, the state’s retribution against Prynne served him, in the long run, much better than it did the state. Taking pride in the branding of “S.L.” for “seditious libeler” upon his face, Prynne composed the following widely circulated verses, which identify his brand, and thereby his sufferings, with the wounds of Christ. Prynne thus appropriates his mutilation as a “martyred sign”: Triumphant I return, my face discryes Laud’s scorching scars.


God’s grateful sacrifice. S.L. Stigmata Laudis. Stigmata maxellis baiulans insignia Laudis Exultans remeo victima grata Deo.48 There seems little doubt that vengeance was in the minds of his accusers, as in 1633 the Star Chamber judges practically fell over each other to suggest greater mutilation. Lord Dorset, for example, wanted not only branding and ear-cropping but also the rare punishment of noseslitting.49 In the end, Prynne was “trimmed” twice – his ears were first cut in 1633 and then severed completely in 1637. One might assume that it was not funny at the time; however, there are suggestions that it did provoke humor, at least among those who sought to bring him down. The Attorney-General, William Noy, was said to have laughed so hard at Prynne’s suffering that, Aaron-like, he hemorrhaged blood – an affliction from which he later died.50 It is not without irony that for a vehement opponent of theatrical exhibition, Prynne’s judicial mutilation lent fuel to the Puritan cause and made him the most recognizable man in England. His image was so widely known that when he was feted in Chester upon his release from prison in 1637, the local bishop ordered his portrait destroyed. Unsatisfied with imprisoning the painter and destroying the portrait, the bishop then insisted that the frames themselves be publicly burnt in front of an orchestrated crowd of a thousand cheering citizens – as Prynne commented, the frames were but “poor innocents.”51 Prynne was, of course, to have his own measure of revenge when he was released from prison and celebrated upon his return to Westminster in late 1640. While he was being feted, the Commons charged Laud with high treason and Prynne searched his study. Relying on the archbishop’s personal papers, he penned A New Discovery of the Prelates Tyranny in their Late Prosecutions of Mr William Pryn (1641), a work roundly condemning the religious practices of Laud and other Arminians. His “revenge” was nearly complete in 1645 when Laud was executed for treason. But even after Laud’s demise, Prynne continued his campaign against the memory of the archbishop in Canterburies Doome (1646), an account of Laud’s trial, and the Sword of Christian Magistracy (1647).52 Revenge could continue beyond the grave. What was mirrored in the judicial practice of mutilation Prynne embodied was not only the civil offense for which justice was thus dispensed, but a justice returning to the “wilde,” that is, enacting behaviors of precisely the same species that judicial operations were invented to


end. That such punishments are “ridiculous” acts of judicial revenge does not make them straightforwardly comic, but rather places them in the realm of travesty. State-sanctioned mutilation was not widely utilized, and by the end of the sixteenth century it appears to have been dying out.53 But it cannot be too much emphasized that both defacement and deformity as arbitrary or asymmetrical operations of justice were pervasively accepted in early modern England. For instance, Bacon was head of the court of Chancery, a court notorious for its irregular application of the law. Indeed, John Selden, for this reason, referred to Chancery as “a rouguish thing” “because it had no measure more constant than the chancellor’s foot.”54 William Lambarde’s Archeion, or, A Discourse Upon the High Courts of Justice in England (written before 1591, but first published in 1635) explains the role of the chancellor as being to correct the written record of the law and therefore “to cancel, deface, or make void a Record” by striking through it.55 In other words, the chancellor’s role was to deface or mutilate the written law. Even God Himself, according to Stephen Batman’s The Doome warning all men to the Judgement (1581) found God avenging, among other crimes, that of revenge itself by afflicting “deformities” upon the world: On the Earth deformed shapes both of men, byrdes, beastes, and fishes after which of every of these death of princes, alteration of kingdoms, transmutations of religion, treason, murthers, thefe, inceste, whoeredome, Idolatrie, usurie, revenge, persecution, sworde, fyre, famine, hunger, death and damnation, presently followed.56 The idea that vengeance produces a kind of preternatural lopsidedness or multilation is deeply embedded in early modern concepts of justice. In fact, Bacon’s own essay “Of Deformity,” published in the 1612 expanded collection, explicitly connects deformity with revenge: Deformed Persons are commonly even with Nature: For as Nature hath done ill by them; So doe they by Nature: Being for the most part, (as the Scripture saith) void of Naturall Affection; And so they have their Revenge on Nature.57 The biblical passage quoted, Paul’s letter to the Romans, probably bore a reasonable resemblance to the characters jockeying for power at James’s court.58 Bacon had to exercise some caution, adding a passage about how some deformed persons manage to overcome their otherwise inherently evil natures, possibly in deference to his cousin the hunchbacked Lord Treasurer, Sir Robert Cecil, earl of Salisbury. However, Cecil had


died a few months before the essay was published and the letter writer, Sir John Chamberlain, considered that despite the apparent qualification, Bacon sought to exact a measure of revenge on Salisbury for his failure to support Bacon’s advancement at Court: “Sir Fraunces Bacon hath set out new essayes, where in a chapter of deformitie the world takes notice that he paints out his late little cousin to the life.”59 Deformity and justice also conjoin in Shakespeare’s revenge comedy Much Ado About Nothing (1598–99):60 “Seest thou not, I say, what a deformed thief this fashion is, how giddily a turns about all the hot-bloods between fourteen and five-and-thirty” (3.3.115–21). The “hot-bloods” are the choleric, urban gentlemen whose aggressive masculinity is all too prominent (“his codpiece seems as massy as his club” [3.3.134]), precisely the gallants addressed both by popular fencing manuals and by legislation designed to curb the revenge practices of dueling.61 When the bumbling watch overhear this conversation between the villains who have undone the virtuous Hero, they mistake references to “deformed” fashion for allusions to a suspect: “I know that Deformed. A has been a vile thief this seven year. A goes up and down like a gentleman. I remember his name” (3.3.108–12); “I know him – a wears a lock” (3.3.164). In the dueling gentleman, the “deformity” of fashion manifests itself as a “love-lock” and elaborate curl, sometimes ornamented with hair jewelry, the gift of a mistress. In the lower orders, however, among these inept operatives, disfiguration is linguistically performed in Dogberry’s mangled, malapropistic speech and its satire on the inefficiency of provincial justice. Although the watch held an unpaid and unpopular position at the low end of judicial operations, Dogberry is in a sense inadvertently like a chancellor, in that he defaces the law by his garbled expressions; and, like those of the chancellor, Dogberry’s operations are ultimately effective and even aligned with divine mercy (Dogberry opposes hanging).62 The Pauline capacities of discernment with which the watch are endowed (“What your wisdoms could not discover, these shallow fools have brought to light” [5.1.217–18]), are comically anticipated when Dogberry selects the handsome George Seacoal as “the most desertless man to be constable” simply because he is “well-favored” (3.3.8–14). The comedy ends where Titus begins, with the anticipation of torture for the Duke’s illegitimate brother, Don John: “Think not on him till tomorrow, I’ll devise thee brave punishments for him” (5.4.121–2).63 * * * Sir Edward Coke noted in his commentary on Littleton in the First Institute, “It is against reason, that if wrong be done any man, that he


thereof should be his own judge. For it is a maxime in law, aliquis non debet esse judex in propria causa.”64 Titus reveals the conceptual and practical struggle to appropriate retaliation for injury to the state as well as the intractable problem of extricating private revenge from the social order. Revenge was not yet fully identified with extralegal retaliation, nor was judicial punishment yet fully differentiated from extrajudicial vengeance; both involved a violently lopsided process of trying to get even. The results were, like Titus Andronicus itself, simultaneously tragedy and travesty. In a startling sense, the state’s execution of justice in both torture and public punishments had a purpose not dissimilar to the purposes either of revenge tragedy or of literature more generally. Public executions, whipping, and the bodily mutilations of the torture chamber had, after all, at their core the same, albeit distorted, motivations Sidney ascribes to poetry, “to teach and to delight.”65

Notes 1. Girolamo Pollini, Historia Ecclesiastica della Rivoluzion d’Inghilterra (Douai, 1592). See Frank Kermode, The Age of Shakespeare (New York: Modern Library, 2004), p. 143. 2. House of Lords Record Office, 27 Elizabeth I, O.A. 2. 3. James Heath, Torture and English Law (Westport, CT: Greenwood Press, 1982), p. 130; Richard Wilson, Secret Shakespeare (Manchester: Manchester University Press 2004), p. 89; Frank Kermode observes “Monstrous reprisals were thought to have been a deterrent, an argument the Queen seems to have accepted, though she was not herself a particularly vindictive or sadistic woman” (The Age of Shakespeare, p. 144). 4. Paul E. J. Hammer, The Polarisation of Elizabethan Politics (Cambridge: Cambridge University Press, 1999), p. 174 n. 130; Thomas Birch, Memoirs of the Reign of Queen Elizabeth, vol. 1 (London, 1754), p. 160. 5. Oxford Dictionary of National Biography (hereafter ODNB). 6. ODNB; P. W. Hasler, ed., History of Parliament, House of Commons 1558–1603, vol. 3 (London: Published for the History of Parliament Trust by HMSO, 1981), pp. 513–15. 7. Heath, Torture, pp. 119, 120; John H. Langbein, Torture and the Law of Proof (Chicago, IL: University of Chicago Press,1976), pp. 67, 68, 69, 72, 77. 8. Elizabeth Hanson, Discovering the Subject in Renaissance England (Cambridge: Cambridge University Press, 1998), p. 31, quoting Francis Bacon, Letters and Life of Francis Bacon, ed. James Spedding, Robert Ellis, and Douglas Heath, vol. 3 (London, 1868–90), p. 114. 9. ODNB. 10. Michael Kiernan, ed., Sir Francis Bacon: The Essayes or Counsels, Civill and Morall (Cambridge, MA: Harvard University Press, 1985), pp. 16–17. 11. Keirnan, Sir Francis Bacon, p. 16. 12. See Langbein, Torture and the Law, passim.

The Wilde Side of Justice 55 13. See Nicholas Brooke, Horrid Laughter in Jacobean Tragedy (New York: Barnes and Noble Books, 1979). 14. Norton coauthored Gorbuduc with Thomas Sackville. 15. Wilson, Secret Shakespeare, p. 98. 16. James D. Carroll, “Gorboduc and Titus Andronicus,” Notes and Queries 51:3 (2004), 267. On Norton see Michael A. R. Graves, Thomas Norton: The Parliament Man (Oxford: Blackwell, 1994). On Munday see ODNB; J. C. Turner, Anthony Munday: Elizabethan Man of Letters (Berkeley, CA: University of California Press, 1928); David Bergeron, ed., Pageants and Entertainments of Anthony Munday: A Critical Edition (New York: Garland, 1985). 17. Titus Andronicus, 4.3.3–24. All references to the play are taken from Jonathan Bate, ed., Titus Andronicus, The Arden Shakespeare (London: Routledge, 1995). 18. Ronald Broude, “Revenge and Revenge Tragedy in Renaissance England,” Renaissance Quarterly 28:1 (1975), 38–58, esp. 47. 19. See F. A. Yates, Astraea: The Imperial Theme in the Sixteenth Century (London: Routledge and Kegan Paul, 1985), and “Elizabeth as Astraea,” Journal of the Warburg and Courtauld Institutes 10 (1947), 27–82, which explore the numerous references to Elizabeth as Astraea in both the poetry and the painting of the period. Mary Sidney, Countess of Pembroke’s poem “Dialogue between Two Shepherds in Praise of Astraea” is but one example of the traditional pastoral tribute to Elizabeth. 20. Foakes thus designates Marlowe’s plays and Shakespeare’s Titus Andronicus and Henry VI. R. A. Foakes, Shakespeare and Violence (Cambridge: Cambridge University Press, 2003), pp. 9, 53–58. 21. Bate, Titus Andronicus, pp. 33–37. 22. On Lavinia’s rape and mutilation, see Karen Cunningham, “Renaissance Execution and Marlovian Elocution: The Drama of Death,” Publications of the Modern Language Association 105 (1990), 209–222; and her “ ‘Scars can Witness’: Trials by Ordeal and Lavinia’s Body in Titus Andronicus,” in Shakespeare’s Early Tragedies, ed. Mark Rose (Englewoood Cliffs, NJ: Prentice Hall, 1995), pp. 65–78; Catherine R. Stimpson, “Shakespeare and the Soil of Rape,” in Shakespeare’s Early Tragedies, ed. Rose, pp. 58–64; David Willbern, “Rape and Revenge in Titus Andronicus,” English Literary Renaissance 8 (1978), 159–82; and Molly Smith, Breaking Boundaries: Politics and Play in the Drama of Shakespeare and his Contemporaries (Aldershot, Hampshire: Ashgate, 1998), p. 45. 23. Kiernan, Sir Francis Bacon, p. 17. 24. See Heather James, “Cultural Disintegration in Titus Andronicus: Mutilating Titus, Vergil and Rome,” in Violence in Drama, ed. James Redmond (Cambridge: Cambridge University Press, 1991), pp. 123–40; Willbern, “Rape and Revenge,” 159–82. 25. Raped by Tereus and silenced by having her tongue cut out, Philomela sews the name of her assailant in a sampler and is eventually transformed into a nightingale. The story comes from Ovid’s Metamorphoses. 26. See Broude, “Revenge and Revenge Tragedy,” 51. 27. Pierre Ambroise Francois Choderios de LaClos’s Les Liasons Dangereuses (1782); see also Matthew 13: 24–30 for the idea of cosmic justice delayed until the Last Judgment. 28. On the coauthorship of the play, see Brian Vickers, Shakespeare, Co-author (Oxford: Oxford University Press, 2002), pp. 148–243.

56 Dympna Callaghan and Chris R. Kyle 29. Katharine Eisaman Maus, Four Revenge Tragedies (Oxford: Oxford University Press, 1995), p. 328. 30. John Kerrigan, Revenge Tragedy: Aeschylus to Armageddon (Oxford: Clarendon Press, 1996), p. 196. 31. On executions as punishment in early modern England see Cynthia Herrup, The Common Peace (Cambridge: Cambridge University Press, 1987), esp. ch. 7; Katherine Royer, “Dead Men Talking: Truth, Texts and the Scaffold in Early Modern England,” in Penal Practice and Culture 1500–1900, ed. Simon Devereaux and Paul Griffiths (Houndsmills, Basingstoke: Palgrave Macmillan, 2004), pp. 63–84; Peter Lake with Michael Questier, The Archbishop’s Lewd Hat (New Haven, CT: Yale University Press, 2002), ch. 7; Anne Dillon, The Construction of Martyrdom in the English Catholic Community, 1535–1603 (Aldershot, Hampshire: Ashgate, 2002); J. A. Sharpe, Judicial Punishment in England (London: Faber and Faber, 1990). 32. Thomas Whitfield Baldwin, William Shakespeare Adapts a Hanging (Princeton, NJ: Princeton University Press, 1931), p. 30. 33. Baldwin, William Shakespeare, p. 33. 34. Baldwin, William Shakespeare, p. 33. 35. Wilson, Secret Shakespeare, p. 191. 36. Wilson, Secret Shakespeare, p. 191. 37. Lake and Questier, The Archbishop’s, p. 248. 38. Albert Tricomi, “The Aesthetics of Mutilation in Titus Andronicus,” in Shakespeare’s Early Tragedies, ed. Rose, pp. 31–42. Tricomi notes: “In a play preeminently concerned with the mutilation of the human body, Titus makes nearly sixty references, figurative as well as literal, to the word ‘hands’ and eighteen to the word ‘head’ ” (p. 31). Tricomi’s reading treats these references as part of the play’s rhetorical strategy, as copia, “figures of speech which saturate the play” (p. 31), rather than as elements of visual spectacle. 39. Fredson Thayer Bowers, Elizabethan Revenge Tragedy 1587–1642 (Princeton, NJ: Princeton University Press, 1940), p. 110. 40. Quoted in Richard Marienstras, New Perspectives on the Shakespearean World, trans. Janet Lloyd (Cambridge: Cambridge University Press, 1985), p. 56. 41. See Bate, Titus Andronicus, p. 19; Samuel Kliger, The Goths in England (Cambridge, MA: Harvard University Press, 1952; rpt. 1972), pp. 33–34. 42. Kiernan, Sir Francis Bacon, p. xxv. 43. Francis Barker, “A Wilderness of Tigers: Titus Andronicus, Anthropology, and the Occlusion of Violence,” in The Culture of Violence: Essays on Tragedy and History, ed. Francis Barker (Chicago, IL: Chicago University Press, 1993), pp. 43–206. For a critique of Barker see Foakes, Shakespeare and Violence, pp. 15–16. 44. On punishment in early modern England see Devereaux and Griffiths, Penal Practice; Sharpe, Judicial Punishment; Lake and Questier, The Archbishop’s, chs. 1, 9, 12; and J. M. Beattie, Crime and the Courts in England 1660–1800 (Princeton, NJ: Princeton University Press, 1986). 45. ODNB, “Jonson.” 46. For the details of Prynne’s trials see Documents Relating to the Proceedings Against William Prynne in 1634 and 1637, ed. S. R. Gardiner (Camden Society: new series 18, 1877). 47. The authors are grateful to Jason Peacey for a discussion of this subject. 48. Gardiner, Documents.

The Wilde Side of Justice 57 49. On the rarity of nose-slitting as a punishment see Martin Ingram, “Shame and Pain: Themes and Variations in Tudor Punishments,” in Penal Practice, ed. Devereaux and Griffiths, p. 46. 50. David Cressy, Agnes Bowker’s Cat (Oxford: Oxford University Press, 2000), p. 221. 51. Cressy, Agnes Bowker’s Cat, p. 229. 52. William M. Lamont, Marginal Prynne (London: Routledge and Kegan Paul, 1963), ch. 6. 53. Ingram, “Shame and Pain,” p. 46. 54. Quoted in The Mirror of Justice: Literary Reflections of Legal Cases, ed. Theodore Ziolkowski (Princeton, NJ: Princeton University Press), p. 170. 55. Quoted in Ziolkowski, The Mirror of Justice, p. 171. 56. Lily B. Campbell, “Theories of Revenge in Renaissance England,” Modern Philology 28:3 (1931), 283. 57. Kiernan, Sir Fancis Bacon, p. 133. Italics in original. 58. This was a diatribe against men who leave off “the natural use of the woman”: “being fulled with all unrighteousness, fornication, wickedness, covetous, maliciousness, full of envy, murder, debate, deceity, malignity; whisperers” (Romans 1:29). 59. N. E. McClure, ed., The Letters of John Chamberlain, vol. 1 (Philadelphia, PA: American Philosophical Society, 1939), p. 397. 60. Linda Anderson, A Kind of Wild Justice: Revenge in Shakespeare’s Comedies (Newark, DE: University of Delaware Press, 1987). 61. Dympna Callaghan, ed., Romeo and Juliet: Texts and Contexts (Boston, MA: Bedford St. Martins, 2003), pp. 194–200, 208–44. 62. Broude points out that the watch is an instance when private citizens work for the state, thus further complicating the distinction between public and private justice (“Revenge and Revenge,” p. 48). See also Lorna Hutson, “Rethinking the ‘Spectacle of the Scaffold’: Juridical Epistemologies and English Revenge Tragedy,” Representations 89 (2005), 30–58. 63. Stephen Greenblatt, Walter Cohen, Jean E. Howard, and Katharine Eisaman Maus, The Norton Shakespeare (New York: Norton, 1997), p. 1384. 64. Sir Edward Coke, The First Part of the Institutes of the Laws of England, or a Commentary upon Littleton (London, 1628), section 141a. 65. Broude, “Revenge and Revenge Tragedy,” p. 50.

4 “Like to a Tenement”: Landholding, Leasing, and Inheritance in Richard II William O. Scott

A recent description of the rules of succession to the throne in modern Britain states that “under the common law, the Crown descends on the same basis as the inheritance of land.”1 It is evident that Richard II (1595) takes for granted an analogy between succession to the kingship and succession to at least the lands and titles of nobility. As Shakespeare presents the situation, the Duke of York warns Richard that if he seizes John of Gaunt’s lands and title, he will “take from Time / His charters and his customary rights” and will “Be not thyself; for how art thou a king / But by fair sequence and succession?”;2 likewise Gaunt’s son Bolingbroke, returning to claim that inheritance, argues, “If that my cousin king be King in England, / It must be granted I am Duke of Lancaster” (2.3.123–24). The point here is to strengthen the material content of the play’s discourse about property and kingship by paying attention to the practices of more mundane land transactions as well. The noblemen’s critique of Richard’s conduct is expressed not only through this argument about succession or inheritance but through an analogy with forms of property ownership and use that applied among commoners as well as among the nobility. Some of these had great urgency, for landowners and tenants, in the economy of Shakespeare’s own time. Principles of landholding shape the language of the arguments over the fiscal prerogatives of kingship, and therefore over the king’s power and status, and in turn Richard’s behavior is measured against these. Gaunt complains that England “Is now leased out . . . Like to a tenement or pelting farm” (2.1.59–60) and admonishes Richard, wert thou regent of the world, It were a shame to let this land by lease; 58

Landholding, Leasing, and Inheritance 59

But, for thy world enjoying but this land, Is it not more than shame to shame it so? Landlord of England art thou now, not king. Thy state of law is bondslave to the law. (109–14) One question here is just what Gaunt is comparing to the leasing of land. Though Shakespeare does not specify the object of this comparison, in Gaunt’s analogy the leasing of property seems to resemble Richard’s means of raising cash by farming out the privilege of tax collection to his supporters. Details of such a transaction are given in the early seventeenth-century anonymous work Thomas of Woodstock, in which Richard signs a document related to tax farming which provides that “These gentlemen here . . . all jointly here stand bound to pay your majesty, or your deputy, wherever you remain, £7,000 a month for this your kingdom. For which your grace, by these writings, surrenders to their hands all your crown lands, lordships, manors, rents, taxes, subsidies, . . . and all other duties that is, shall, or may appertain to the King or crown’s revènues.”3 Thus, although Richard is still nominal owner of the realm, he has leased out the use of it to the tax farmers, who function as tenants.4 Commenting similarly on Shakespeare’s lines, Andrew Gurr says, “A ‘tenement’ was a tenancy, a property used but not owned. . . . Gaunt is fusing the concept of tax farming with debasement of landownership.”5 Yes, and just what sort of debasement is a matter for further examination. In any case, for Gaunt this misuse of the national property compromises Richard’s tenure as hereditary monarch; just before this, he declares, Oh, had thy grandsire with a prophet’s eye Seen how his son’s son should destroy his sons, From forth thy reach he would have laid thy shame, Deposing thee before thou wert possessed, Which art possessed now to depose thyself. (104–08) Abuses of what the king possesses – both property and kingship – threaten the status of kingship itself. The threat to kingship is true in two senses: although the second quoted line could apply to Richard’s murder of his uncle Woodstock (reading both uses of “his” as relating to the grandsire, Edward III), another meaning (taking the second “his” to refer to Richard) is that Richard deprives his posterity of their patrimony by his abuse of the realm. In either of these ways, the practices of leasing

60 William O. Scott

and other land transactions bear on the power and status of the king, whose actions against either the life or livelihood of his kinsmen may unsettle his own position. The charge that Richard leases out the nation like a tenement should be understood within landholding practices of the time. The varieties of ownership or possession of land in medieval and early modern England fall in a range within which different sorts of leasehold are among the weaker kinds.6 High on the social scale, feudal principles figure in the theory that lords hold their lands from the king or overlord in return for knight service or cash fees, along with homage, and that others in turn hold their lands from the lords in return for homage and rent (which, under a vestigial feudalism, was still compatible with ownership). Though these lands could be seized by the crown in the event of treason, they would be vested, largely outright, as freeholds or frank tenancies, with the right (sometimes restricted) to designate an heir. However, most property was held only in customary tenancy, usually on the basis of a copy of a statement of customary ownership made from the manor records, that is, by copyhold, and such ownership was enforceable, at first, only in the manor court rather than directly in royal courts under common law. Although the lord still had the freehold, the tenant had a kind of contractual possession that was confirmed by the custom of the manor, and he paid a fixed customary rent. Custom conferred a legally valid ownership, but it was not as strong as a freehold, and a particular individual’s tenancy might be disputed. The terms of this tenancy and the degree of control over inheritance could vary, and in some situations the land could revert to the lord, who could collect a fee on a tenant’s entry into possession and at other times. (Such fines were an important leverage, and source of income, for lords.)7 The strongest forms of copyhold carried the right of inheritance without limit, and so were almost as good as freeholds; others allowed inheritance for specified persons and a limited number of lives (usually up to three); and still others gave possession for a term of years (from 1540 onward, usually no more than seven, fourteen, or twenty-one). Still weaker copyholds lasted only a year, or at the will of the lord. Although there were actually more legal protections than this brief summary suggests, the forms of landholding shaded into copyhold arrangements that seem by modern standards more like mere rental. On the other side, there were leases whose length matched some of the copyholds: up to three lives, or twenty-one years. Others, though, were shorter. Clearly the terms were all-important: in addition to its length, a lease for more than one life would allow the tenant some


control over inheritance. A tenant might further find it appealing that, having paid an entry fine, he had a low rent for the term of the lease. From the landlord’s viewpoint, the lump-sum payment of the entry fine was desirable, and on expiration the lease could be renegotiated more favorably with either the same or another tenant. Indeed, surveyors who were employed by landlords calculated the difference between the rent paid by customary tenants and their estimate of the market value of the land.8 Thus, although there may have seemed to be an immediate benefit for both sides in a lease, eventually it proved illusory for tenants. A leasehold need not imply an ongoing relationship between lord and tenant as did customary tenure.9 The lessee might have a right to name an heir, and at some points could be protected from high rents and high entry fines (insofar as custom could influence the outcome of negotiations), but would not enjoy the same security of tenure that copyhold would afford. These technicalities of ownership or possession – especially the differences in security between copyholds and leases – figured in large social and economic changes. One of the major transformations in English agriculture from the later middle ages through the sixteenth century – a change which could give an ironic (if seemingly almost incidental) bite for Shakespeare’s audience to the words of even the aristocratic Gaunt – was the conversion of copyholds into such less secure leases. Although this development must have seemed of little importance as long as there was a shortage of tenants, a growing market for land in the latter half of the sixteenth century made the terms of tenancy suddenly critical for the tenant’s security and made obvious the reasons for keeping a copyhold (especially one granted to one’s heirs without limit), if possible, and rejecting a lease.10 From the point of view of a landlord who sought more profit, it may well already have been true for some time that “The breaking of a line of inheritance [i.e. the failure of a tenant to produce an heir] was seen as releasing the grip of custom, and enabling payments more in line with the true market value to be exacted.”11 Although this quotation describes a time before conversion to leaseholds became as prevalent as in the sixteenth century, it expresses well how a traditionalist viewpoint could be supplanted by a capitalist one, and how the replacement of copyholds by leases could eventually facilitate the development of agrarian market capitalism and the breaking of inheritance among small copyhold farmers. Landlords became increasingly bold in taking advantage of opportunities to convert to leases. By the later sixteenth century, then, bargaining over leaseholds gave landowners considerable power.12 And this power in turn enabled an even better-known

62 William O. Scott

change in the agrarian economy: enclosure of both common and demesne land, with displacement of families who might once have possessed copyholds.13 For these reasons, the very idea of leasing might well have aroused controversial associations, quite apart from what Gaunt makes of it. Of course, Gaunt’s actual complaint against Richard’s tax farming is not that he is exercising too much power but the contrary, that such a transaction gives undue influence to the lessees. Moreover, Gaunt, the wealthiest man in England after the king, is hardly an advocate for tenant farmers. Rather, he and especially his brother York speak for the legitimating value of custom (which figures in York’s language as a right of time and thereby of the nobility), and custom can cut many ways.14 Customary rents and fines limited the profits of landlords and gave an economic windfall to tenants with rising crop prices, until the very restraints of custom moved landlords to press for conversion to leases; however, insofar as custom remained effective, it helped tenants in their resistance to such conversion. On the level at which Gaunt and York argue, custom could have varied results too. It would assert the right of inheritance for the nobility against royal interference, but on the basis of equal protection for royal legitimacy. The separation, through tax farming, of ownership of the realm from its use, connected in this reasoning with the breach of custom in leasing, would also be an abuse of royal power that ultimately weakened and discredited the customary basis of kingship. Custom is supposed to moderate the contests of power, whether of king against nobles or arguably of tax farmers (if they were allowed at all) against king. In the view that the noblemen try to present, then, self-discipline by respect for custom would preserve power by inhibiting transactions that would be ultimately ruinous to that power. Gaunt nostalgically views England’s past as devoid of struggles. In his idealized version, the description of England as an “other Eden” and “This blessed plot, this earth, this realm” and as “This nurse, this teeming womb of royal kings” (2.1.42, 51–52) suggests unhistorically a fecundity, both agrarian and human, beyond needs for tillage, calculation, or struggles for ownership. As James E. Berg says, the speech expresses “the values of an agrarian economy,” portraying the land as “real” in a vividly particular (as well as legalistic) sense.15 The cause of all the present internal conflict is simply the folly of the current ruler. Of course, these noblemen are themselves very much implicated in ethical and political struggles. Gaunt is torn between his sister-in-law’s clamor for vengeance for her husband’s murder and his fealty to the


king, and again between partiality for his son and the advice he must give for banishment.16 York too finds his sense of duty stretched by Richard’s decisions that wrong Bolingbroke. But Bolingbroke most of all gives the lie to nostalgia for harmony: he appeals to a chivalric form of combat to strike indirectly at Richard, making the customary partisan. For all his idealization of kingship, even Richard sometimes thinks in property terms, to Bolingbroke’s disparagement. In recounting Bolingbroke’s “courtship to the common people,” his kneeling and doffing of his bonnet to draymen and oyster wenches, Richard thinks of him as conducting himself “As were our England in reversion his” (1.4.24–36). The OED defines “in reversion” as “conditional upon the expiry of a grant or the death of a person” and the single word as “The return of an estate to the donor or grantor, or his heirs, after the expiry of the grant”; B. J. and Mary Sokol, citing this passage, mention metaphorical usages “concerned with anticipated or conditional possession” (s.v. “Reversion”). Richard thinks of his kingship as a firm possession rather than such a conditional grant, even if for life – despite the irony, late in the play, that first his estate expires and then his life. Control over inheritance was one important feature of freeholds on property, and also of the stronger kinds of copyhold and leasehold. In addition, the high nobility in Edward III’s reign, who held their property directly from the king, adopted practices that assured inheritance by separating ownership of their estates from management or use of them: one was “enfeoffment to use,” delegation of management to feoffees or trustees. On the nobleman’s death, “his feoffees remained in control, and the king had no right to claim wardship of the estates during the period of vacancy before the heir rendered homage”; thus, a legal fiction of trusteeship maintained control of estates pending transfer to the heirs.17 Another device was entailment, specification of the precise succession of land and title. Some ironies about these practices remain outside Shakespeare’s story, but the habit among kings of seizing estates on any pretext whatsoever might be comparable to Richard’s treatment of Gaunt’s title and land. If one considers Richard’s act of confiscation a seizure by escheat of a traitor’s goods, it fails to meet the criterion because Gaunt’s admonishment of Richard had not gone as far as treason, nor was Bolingbroke proclaimed traitor.18 And, of course, without much choice in the matter, Richard will eventually adopt Bolingbroke as heir. One category of royal possession was treated differently in the minds of the nobility and Parliament than others: the royal demesne or crown lands. Since these were owned outright by the king himself, he could

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farm out or lease their administration to the highest bidder or to a favorite.19 The wealth of this demesne could be a reason for Parliament not to grant taxes, as at Richard’s accession; the maxim was that “the king should live of his own” (including also taxes and any other income to which he was entitled).20 The maxim also seemed to imply that royal demesne land ought not to be sold. Ironically, though, Queen Elizabeth made extensive sales of crown lands, especially to finance military activity in the 1590s.21 The crown lands are not distinguished from other sources of income as Shakespeare treats the situation – Richard gives up his “manors, rents, revenues” along with all the rest (4.1.213) – but their special role was of some current importance. Both Richard and Elizabeth used the costs of war to justify their need for revenue, but Richard also acknowledged the expenses of a lavish court (1.4.43–44), and he seized Gaunt’s wealth on a pretext rather than turn his own possessions into cash as Elizabeth did. Yet Elizabeth’s sales for immediate benefit also caused concern, because they reduced the crown’s revenue base and therefore the possibility of long-term income.22 Even she became so concerned about uncontrolled and unrecorded leases and other transactions, under her signature or affixed with the Great Seal, that she took measures to control access to the Great Seal for bills “brought from the Commissioners for leases [of crown lands].”23 Although Elizabeth was obviously much more competent in money management and in other aspects of rule, her sales of land perhaps showed just a touch of Richard in her short-term thinking; however, she learned the need to rein in the land deals by her agents, if only the better to control them herself. James R. Siemon has pointed out the continuing emphasis on property in the middle and later parts of the play: the “insistent economic inflections” of the rebels’ complaints; the assurance that Bolingbroke is coming “But for his own” (2.3.149) – where “own” means “property assumed as absolute, self-evident possession, not the reciprocal issue of kinship alliance or the dependent creature of ‘royalties,’ ‘tenure,’ or any such feudal or monarchical grant and qualification”; and Bolingbroke’s offers of patronage rewards to his followers and even some opponents.24 In contrast, Richard himself mainly dwells on figurative and symbolic aspects of possession, as when he salutes the earth and expends pathos on the wounds it sustains from the rebels’ warhorses, and he makes much of kingship as his God-given due.25 But at two points in the deposition scene his words allow of a property-law reading as well as the other meanings they bear. Of these, the second is the simpler. When Bolingbroke commands, “Go some of you, convey him to the Tower,” Richard answers, “O, good! ‘Convey’? Conveyers are you all, / That rise


thus nimbly by a true king’s fall” (4.1.317–19). Gurr says of this, “Richard develops the principal sense of ‘convey’ as ‘to escort’ with its two other meanings, ‘to transfer the title to property’, and ‘to steal.’ ”26 Richard juxtaposes these meanings in an effective comment on the emptiness of the formal abdication in which he has just been forced to participate. His other equivocal legalism is at once more elusive and more sweeping in its implications. When told that he must resign, he asks for the crown and first enacts a ritual of his own: Here, cousin, seize the crown. Here, cousin, On this side my hand, and on that side thine. Now is this golden crown like a deep well That owes two buckets, filling one another, The emptier ever dancing in the air, The other down, unseen, and full of water. That bucket down and full of tears am I, Drinking my griefs, whilst you mount up on high. (4.1.182–90) He has two token victories in this playlet: when he characterizes Bolingbroke as an empty bucket, and before that when he says three words, “seize the crown,” that are among the ones that Bolingbroke would least want to hear spoken explicitly. (Of course, Richard immediately endows them with an “innocent” meaning.) In a technical reading of his language, the word “seize” had legal associations through its cognate term “seisin.” Two of the senses of “seisin” are marked by the OED as primarily fifteenth century and as having shaded into meanings of “seize”: “To invest with the seisin of property; to put in possession” and “To confiscate (property).” A. W. B. Simpson’s explanation of “seisin” gets at the ironies of Richard’s usage: “Titles are better or worse according to the age of the seisin upon which they are based, and even a very recent (and perhaps transparently wrongful) seisin is to some extent protected. Thus any person who is seised of land has a protected interest in that land, good against all but those who have a title based on an older seisin.”27 With no other choice, Richard invites a transparently wrongful seisin, against which he tacitly can place his older claim. However, the connections with possession and confiscation alike make a harder notion for modern interpreters of earlier legal thinking. Describing the conditions under early feudalism, J. H. Baker says that “seisin,” or “possession as a feudal tenant,” “originally was associated

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with the act of homage which clinched the lord’s acceptance of his man.” Further, if the lord somehow received two men’s homage for the same land, one of them had a right to some other land of like value, but “the claim was essentially contractual: there was no question of upsetting seisin by reference to some more abstract notion of title.” Finally, “The tenant was seised of the land, and the lord was seised of the tenant’s services, but neither of them ‘owned’ the land in any absolute sense.”28 These strict qualifications of ownership certainly do not answer to Richard’s strong view of the rightness of his title. But in the question of “seising” or “seizing” the crown, they may correspond to a strangely almost-schizophrenic attitude that Richard seems to have toward de facto possession. He expresses this attitude in his self-pitying remarks before the abdication, God save the King! Will no man say amen? Am I both priest and clerk? Well then, amen. God save the King, although I be not he; And yet, amen, if heaven do think him me. (4.1.173–76) Yet he is more critical of himself afterward: if I turn mine eyes upon myself, I find myself a traitor with the rest; For I have given here my soul’s consent T’ undeck the pompous body of a king, Made glory base and sovereignty a slave, Proud majesty a subject, state a peasant. (4.1.248–53) He has colluded in an abdication that is exactly contrary to his absolutist beliefs about kingship – indeed, he has obliged Bolingbroke by making the offer unasked. In part, his absolutism actually promotes his renunciation inasmuch as, when he is forced to confront the realities of power, he yields to their stark divergence from his idealization. Likewise the practice of seisin, while bracketing the question of absolute right, grants an advantage to the power realities of possession, in this case secured by Bolingbroke. By this point in the play, Richard’s double vision of the politico-juridical situation informs an audience’s double vision of the realpolitik of unrightful possession of the throne, and therefore of self-divisions within the subjects. Throughout, absolutist doctrine thus comes up against the obstacle of the de facto, the opposing or limiting force. In abdicating, Richard washes away with his own tears


the anointing balm that he had said not all the water in the rough rude sea could remove. On his deathbed, Gaunt complains in the language of property of the damage to England in Richard’s rule: A thousand flatterers sit within thy crown, Whose compass is no bigger than thy head, And yet, encagèd in so small a verge, The waste is no whit lesser than thy land. (2.1.100–03) Gurr describes “waste” as, among other things, “a legal term for prejudicial damage to property by a tenant,” and Jack Benoit Gohn says that “Waste is used here in its legal sense, meaning destruction of the value of real property by those whose use of the land adversely affects the rights of others with presently vested interests in the land. . . . In this elaborate metaphor, King Richard’s flatterers, and by implication Richard himself, are liable for waste because their rule has destroyed the ‘land.’ ”29 This legalism is even more challenging to absolutism, for Gaunt uses a concept that applies only to tenants, not freeholders, and he seems to require their accountability to the whole nation as if to their lords. Moreover, as Dennis R. Klinck points out, “the penalty for waste is the loss of the thing wasted,”30 a sanction that is hinted at in Gaunt’s subsequent admonition (quoted earlier) that Richard is possessed to depose himself. The criticism is softened a bit, though, in that it is unclear (as reflected in Gohn’s wording) whether Gaunt is still blaming the flatterers or whether he has turned more directly on Richard to threaten an imagined dispossession by his grandfather. But Gaunt certainly qualifies rights with responsibilities, a message that is not at all welcome to the possessive Richard. The Gardener and his men, lamenting the state of the land that they tend without the interest of ownership, grieve, in language reminiscent of Gaunt’s, for the errors of “the wasteful King,” whose crown “waste of idle hours hath quite thrown down” (3.4.55, 66). The property-law sense of “waste” might have some oblique application to “hours” besides the more usual meaning of wasting time: as one maintains land by cutting or rooting out some of what grows on it, one would maintain or make best use of time by suitable, sometimes indeed destructive, activity.31 Ironically, what they seem to want from the king is curtailment of the power of both the established and emergent nobility, the “too-fast-growing sprays / That look too lofty in our commonwealth” (34–35), the “great and growing men” (61). In their view, social conflicts

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can be controlled within the metaphor of a due maintenance of property, and, with a perspective that differs from Gaunt’s, they look to the king for this action against the magnates. Richard himself acknowledges his waste of hours as king when he reflects in prison on his past. Now a critic of music that fails to keep time, he admits that “for the concord of [his] state and time” he had not had the same ear: “I wasted time, and now doth time waste me” (by forcing him to expend tears [5.5.42–54]). The property-law sense of “waste” would be questionable here, but perhaps still the active quality of its meaning is pertinent: one could read something like “to destroy; to ruin; to desolate; to wear away” for both uses of the word in the line, giving a symmetry of meaning (with also the usual meaning of “squander” for the waste of time).32 Richard achieves a truer perception, then, if he recognizes outright that he actually was destructive enough, as York warned, to “take from Time / His charters and his customary rights” (2.1.195–96). Such attention as this play gives to the legal status of property is rare; the closest analogues lie in the details of tax farming in Woodstock and in discussions of Alexander Iden’s freehold and of the Duke of Suffolk’s enclosure in 2 Henry VI (1590–92; 4.10.18–23; 1.3.23–39).33 King Lear tries to treat his whole kingdom as ordinary property in making a “retirement contract” as commoners did, but he is left without either power or income.34 When issues of property and customary rights figure in rebellions, censorship dictates their omission, and sometimes the rebels are depicted as illogical or clownish.35 Clearly such topics are potent. Although this reading of Richard II has taken as its model the arguably materialistic operations of land law, such restrictiveness alone could be too limiting: there may be analogies between attitudes toward real property and attitudes toward other possessions or less tangible advantages in which people have valid and vested interests. Citing cases in which monopolies given by Queen Elizabeth deprived people of the use of their property or the practice of their trade or craft, and the injured sued and won, J. H. Hexter concludes that “a man’s occupation is his property by inheritance or lawful acquisition” and that, in the belief of many, “the law favored property against mere power, that it supported men’s right to hold what custom and their labor made their own.”36 In this context, he mentions copyhold tenure of land, which was eventually given common-law protection. Thus, perhaps, the controversial notion of selfhood can be carefully defined for the sixteenth century through one’s inherited or lawfully acquired status, possessions, and skills; at least, inversely, Richard feels that the loss of his title and possessions amounts to a loss of selfhood, indeed of a face in the mirror.


Even within the received doctrine that legitimate kingly rule is God given, the terms and practice of property law and ownership or possession help to define contesting views in Richard II of the fertile ground of England and of its kingly nurturing. Though Richard pushes to the utmost the notion of absolute right as sanctioned by God, the peculiarities of law that allow for severance of judgments about possession and right correspond to the remarkable passiveness with which he confronts that severance in his own loss of rule. Gaunt, for all his deference to God’s position as sole judge of kings and his insistence that the king should be above the law, treats royal possession as distinctly conditional: it confers obligations on the king (like the ones laid on a tenant not to commit waste on the land). Gaunt even imagines a kingly forebear judging the present one. Yet he indulges too in an obviously idealized vision of a past without power struggles. York speaks for the moderating force of customary possession and obligation but cannot invoke it successfully to mediate contests. Even the statements of the ideal in the play smack of contention. For the audience, then, who knew of other contests of ownership and power in their own time, the play renews questions of struggle and its customary modulation.

Notes This essay is an abridged, updated version of an article that appeared as “Landholding, Leasing, and Inheritance in Richard II,” Studies in English Literature 42 (Spring 2002), 275–92. Material from that version is reprinted here with permission. 1. Vernon Bogdanor, The Monarchy and the Constitution (Oxford: Clarendon Press, 1995), p. 42. This means that male heirs have priority over females, and that primogeniture rules among males; he contrasts the Salic law, which barred succession by females in France, and the modern Swedish situation, which treats females and males equally. 2. William Shakespeare, Richard II, 2.2.195–99, in The Complete Works of William Shakespeare, 5th ed., ed. David Bevington (New York: Pearson Longman, 2004). Subsequent references are to this edition. 3. Thomas of Woodstock, 4.1.181–91, ed. Peter Corbin and Douglas Sedge (Manchester: Manchester University Press, 2002); see also the editors’ comment, p. 7, identifying this type of agreement with Gaunt’s allusion to “rotten parchment bonds” (Richard II, 2.1.64). Citing numerous linguistic examples, Macdonald P. Jackson argues that Woodstock dates from the early seventeenth century and is probably the work of Samuel Rowley; see “Shakespeare’s Richard II and the Anonymous Thomas of Woodstock,” Medieval and Renaissance Drama in England 14 (2001), 17–65. Jackson finds no precedent in the sources of Shakespeare’s play for the idea of Richard as landlord, and he takes both that and the reference to the “pelting farm” to be Shakespeare’s inventions (52, 54).

70 William O. Scott 4. The use of blank charters to create forced loans, which is sometimes read into Gaunt’s various complaints, is properly separate from the leasing practice that is described here: thus Richard first announces that he is farming the realm, but then that “If that come short” for his revenue needs he will resort to the blank charters (1.4.45–51). 5. Andrew Gurr, ed., Richard II (Cambridge: Cambridge University Press, 1984), p. 87. This meaning of “tenement” accords with the legal terminology of Richard’s time, according to W. F. Bolton, “Ricardian Law Reports and Richard II,” Shakespeare Studies 20 (1988), 62; and Dennis R. Klinck, “Shakespeare’s Richard II As Landlord and Wasting Tenant,” College Literature 25:1 (Winter 1998), 27, rept. in Un-disciplining Literature, ed. Kostas Myrsiades and Linda Myrsiades (New York: Peter Lang, 1999). 6. Most of what follows – a highly condensed version of a complex subject – comes from Eric Kerridge, Agrarian Problems in the Sixteenth Century and After (London: Allen and Unwin, 1969), pp. 32–64. See also R. W. Hoyle, “Tenure and the Land Market in Early Modern England: Or a Late Contribution to the Brenner Debate,” Economic History Review 2nd ser., 43:1 (1990 1–20); E. B. Fryde, Peasants and Landlords in Later Medieval England (New York: St. Martin’s Press, 1996); and B. J. Sokol and Mary Sokol, Shakespeare’s Legal Language: A Dictionary (London: Athlone Press, 2000), esp. s.v. “Lease” and “Copy.” (I would not contest the Sokols’ statement that Shakespeare does not refer directly to copyhold.) 7. One of the nastier deeds of which landlords were suspected in the 1590s was sending tenants off to war in hopes that, if they were killed, the lords could collect entry fines upon replacing them. See I. A. A. Thompson, “The Impact of War,” in The European Crisis of the 1590s: Essays in Comparative History, ed. Peter Clark (London: George Allen & Unwin, 1985), p. 276. 8. Ellen Meiksins Wood, The Origin of Capitalism: A Longer View (London: Verso, 2002), p. 101. Wood considers that conversion of copyholds to leases was not simply elective by landowners but was driven by the imperatives of “competitive standards of productivity” that threatened the survival of less-productive farms, and that “By the early modern period, even many customary leases in England had effectively become economic leases of this kind” (pp. 102–03). 9. Of the lease for term of years, as contrasted with life tenancy, A. W. B. Simpson says, “a lease for years was not conceived of as creating a tenurial relationship between lessor and lessee at all”; see A History of the Land Law, 2nd ed. (Oxford: Clarendon Press, 1986), p. 73. Likewise J. H. Baker: “Whereas the unit of feudal ownership was the holding for life, and the hereditary fee was of perpetual or indeterminate duration, the letting for years began not as a family interest but as a temporary financial interest. Its principal use was to secure a loan of money”; An Introduction to English Legal History, 3rd ed. (London: Butterworths, 1990), p. 338. See also Sokol and Sokol, Shakespeare’s Legal Language, p. 202. 10. Hoyle, “Tenure,” 1–20. He also provides the suggestions about perceived advantages of such conversions for both parties, under earlier economic conditions. On the “Brenner debate” whether these conversions and other developments, viewed as preparing the development of capitalism in agriculture, were brought about by application of the superior power of landlords as a social class, by demographic forces, or by economic forces, see my full article, “Landholding, Leasing, and Inheritance in Richard II,” Studies in English Literature 42 (Spring 2002), 288 n. 8.

Landholding, Leasing, and Inheritance 71 11. John Hatcher, “English Serfdom and Villeinage: Towards a Reassessment,” Past and Present 90 (February 1981), 18. Hatcher is describing a rationale, in the thirteenth and fourteenth centuries, for conversion of customary tenancy into leaseholds on failure of inheritance. 12. Fryde, Peasants and Landlords, pp. 272–73. Annabel Patterson cites Harrison’s Description of England on “the dailie oppression of copiholders,” pretexts for forfeiting their tenures, pressure to shorten terms, and increases in rents and fines to use up all their income; see Reading Holinshed’s Chronicles (Chicago IL: University of Chicago Press, 1994), pp. 82–84. 13. On these changes as facilitating evictions and enclosures, see Fryde, Peasants and Landlords, pp. 197, 272–73. Wood says that “enclosure meant not simply a physical fencing of land but the extinction of common and customary use rights on which many people depended for their livelihood” (Origin of Captalism, p. 108). Enclosure is discussed in relation to Richard II by James R. Siemon, “ ‘Landlord Not King’: Agrarian Change and Interarticulation,” in Enclosure Acts: Sexuality, Property, and Culture in Early Modern England, ed. Richard Burt and John Michael Archer (Ithaca, NY: Cornell University Press, 1994), pp. 17–33; and in Siemon, Word against Word (Amherst, MA: University of Massachusetts Press, 2002), pp. 119–36. The contribution of sixteenth-century inflation to enclosure is related to the play by James E. Berg, “ ‘This Dear, Dear Land’: ‘Dearth’ and the Fantasy of the Land-Grab in Richard II and Henry IV,” English Literary Renaissance 29:2 (Spring 1999) 225–45. Berg says that land is increasingly “a tool of narrowly economic production” (232). 14. A general argument for the economic and social force of custom in protecting the position of smallholders and other persons of modest status is made by E. P. Thompson, Customs in Common (London: Merlin Press, 1991), pp. 97–184. But one can also turn the argument another way, specifically in relation to customs such as inheritance of copyhold land as presided over by the manorial courts: “Manorial customs tied the lord’s hands very considerably, and most lords probably submitted to the restraint, just as kings submitted to their own law; their power was more secure for being regularised” (Baker, An Introduction, p. 263). At the same time, though, in using the word “charters” (Richard II, 2.1.196), York invokes a more securely entrenched power: the word is associated with freeholds, in contrast to copyholds (Berg, “This Dear, Dear Land,” 236). 15. Berg, “This Dear, Dear Land,” 239. 16. These conflicts are perceptively discussed by James R. Siemon, “ ‘Subjected Thus’: Utterance, Character and Richard II,” Shakespeare Jahrbuch 126 (1990), 69–71; and Siemon, Word against Word, pp. 149–52. In Siemon’s Bakhtinian analysis, the Duchess and Gaunt try to reckon with the organized discourses of “kinship-honor” and religiously sanctioned royal absolutism. 17. W. M. Ormrod, The Reign of Edward III (New Haven, CT: Yale University Press, 1990), pp. 113–14. 18. The inadequacy of treason as a ground is discussed by Jack Benoit Gohn, “Richard II: Shakespeare’s Legal Brief on the Royal Prerogative and the Succession to the Throne,” Georgetown Law Journal 70:3 (February 1982) 958 n. 83. 19. B. P. Wolffe, The Royal Demesne in English History (London: George Allen and Unwin, 1971), pp. 25, 61. 20. Wolffe, The Royal Demesne, pp. 54, 46–47.

72 William O. Scott 21. R. W. Hoyle, “Introduction: Aspects of the Crown’s Estate, c. 1558–1640,” in The Estates of the English Crown, 1558–1640, ed. R. W. Hoyle (Cambridge: Cambridge University Press, 1992), p. 29. See also in the same volume Madeleine Gray, “Exchequer Officials and the Market in Crown Property, 1558–1640,” pp. 116–17. 22. Hoyle, Estates, p. 21. 23. Calendar of State Papers, Domestic, 1592, no. 73 (February). See also William O. Scott, “Contracts of Love and Affection: Lear, Old Age, and Kingship,” Shakespeare Survey 55 (2002), 36–42. 24. Siemon, “Subjected Thus,” pp. 75–78, and Word, pp. 161–67. 25. For divine designation as one of the historical bases for claiming the throne, see Gohn, “Shakespeare’s Legal Brief,” 949, and his references. 26. Gurr, Richard II, p. 149. 27. Simpson, History of Land Law, p. 88. 28. Baker, An Introduction, pp. 262–63. 29. Gurr, Richard II, p. 89; Gohn, “Shakespeare’s Legal Brief,” 957. 30. Klinck, “Landlord and Wasting Tenant,” 27. 31. Klinck gives the instance of the felling of trees on leasehold property as a form of waste (“Landlord and Wasting Tenant,” 30). One ought to contrast the beneficial trimming advocated by the gardeners. 32. These meanings are taken from Alexander Schmidt’s Shakespeare-Lexikon. He cites the line for both meanings without giving details; presumably he means “squander” for the first and “destroy,” etc., for the second. For this passage as continuing the charges by York, Gaunt, and the Gardener, see Robert L. Montgomery Jr., “The Dimensions of Time in Richard II,” Shakespeare Studies 4 (1968) 78–79. 33. For controversy over Iden’s freehold, see Scott, “Landholding, Leasing,” pp. 290–91 n. 34. 34. See Scott, “Contracts of Love.” 35. See the discussions of Jack Straw, Heywood’s 1 Edward IV, and Sir Thomas More in Scott, “Landholding, Leasing,” 285–86. A further discussion of clownish elements in the rebellion in 2 Henry VI is Craig A. Bernthal’s “Jack Cade’s Legal Carnival,” Studies in English Literature 42 (Spring 2002), 259–72. On censorship of Sir Thomas More and carnivalization in Jack Straw, see Simon Hunt, “ ‘Leaving Out the Insurrection’: Carnival Rebellion, English History Plays, and a Hermeneutics of Advocacy,” in Renaissance Culture and the Everyday, ed. Patricia Fumerton and Simon Hunt (Philadelphia: University of Pennsylvania Press, 1999), pp. 299–300, 302. Janet Clare takes the omissions in Jack Straw as a sign of censorship; see her “Art Made Tongue-Tied by Authority”: Elizabethan and Jacobean Dramatic Censorship, 2nd ed. (Manchester: Manchester University Press, 1999), pp. 59–60. 36. J. H. Hexter, “Property, Monopoly, and Shakespeare’s Richard II,” in Culture and Politics from Puritanism to the Enlightenment, ed. Perez Zagorin (Berkeley, CA: University of California Press, 1980), pp. 15–16. Examples of such monopolies are sale of playing cards, registration of insurance policies, and manufacture of salt (in which case real property, land with salt pits, is made useless).

5 Cast out of Eden: Property and Inheritance in Shakespearean Drama Nancy E. Wright and A. R. Buck

Conflicts over property occur in courtly, urban, and rural settings in Shakespeare’s 2 Henry VI (1590–92) and As You Like It (1599).1 In the history play, grievances about landed property, varying from the enclosure of common lands to the loss of English territory to France, inspire laborers and nobles to rebel. Jack Cade, an urban laborer, leads a short-lived rebellion with the radical aim of abolishing all private property in order to eliminate the social hierarchy that differentiates poor laboring men from nobles and gentry. Nobles, who unite in order to defeat Cade’s rebellion and drive him from London, do so out of self-interest, which ultimately inspires their own rebellion against the king. Similarly, in As You Like It self-interest undermines social relationships. Frederick, the younger brother in a noble family, usurps its dukedom from the legitimate heir, Duke Senior, and Oliver, the eldest brother in a gentry family, not only neglects his responsibilities to Orlando, his youngest brother, but also threatens his life. In both plays characters flee from the city and the court to find protection from unruliness in secluded retreats: the Garden of Iden in 2 Henry VI and the Forest of Arden in As You Like It. It is these pleasant landscapes, modulations of the rhetorical and poetic convention of the locus amoenus, which explicate a nexus of property issues.2 Both allude ironically to the biblical Garden of Eden, which recurs in medieval and early modern writings concerning private property and inheritance in the postlapsarian world. The inheritance of private property was not intended simply to benefit its owners but instead obliged them to fulfill duties to both their king and their subordinates, particularly the poor. The plays represent law as mutable and subject to the self-interested human actions it was intended to control. Although a necessary basis of social relationships, property law proves to be a flawed instrument of social order. 73

74 Nancy E. Wright and A. R. Buck

Early modern political thought and the function of inheritance and private property In 2 Henry VI one of Jack Cade’s followers complains about the consequences of social hierarchy and status: “It was never merry world in England since gentlemen came up” (4.2.6–7). Gentlemen and nobles no longer recognize that property is a basis not only of their elite social status and privileges but, more important, of their obligation to provide for the less fortunate. The deterioration of the social relationship between the poor and great landowners is revealed by the dismissive response of the nobles to a petition presented by rural laborers “Against the Duke of Suffolk, for enclosing the commons of Melford” (1.3.20–22). The petition challenges the duke’s extinguishment of their customary use rights to land. Commons, which included open fields as well as waste and forest, were areas of land in which many different people held property interests. Game animals within a forest, for example, were the property of the king and manorial lords, as were the trees and the land itself; however, the local community held common use rights to the land, where they could graze animals and gather furze, peat, and other resources. Enclosure disrupts these property relationships by transforming common lands into the private property of Suffolk, a noble landowner who holds exclusive proprietary rights.3 Jack Cade uses grievances about enclosure and private property to unite “thrifty honest men” (4.2.186), who labor in the city and the countryside, in a rebellion against nobles and gentlemen. He urges, “you that love the commons, follow me” (4.2.183). This rally cry aptly expresses the twin causes of his rebellion; the noun “commons” denoted not only common lands shared by a community but also the social estate or status of laborers. The play positions Cade not simply as a rebel but, more important, as a London clothworker, a representative of urban laborers.4 He aims to provide for the material needs of the poor and wage laborers, and to remedy their differentiation from wealthy landowners reinforced by sumptuary laws, which determined the kinds of clothing worn by people of different social statuses. He recognizes that ownership of private property is a foundation of social hierarchy. For this reason he intends to “burn all the records of the realm” (4.7.14) so that “henceforward all things shall be in common” (4.7.18–19). Burning records, such as deeds recording titles to land, will establish customary use rights to all property within the kingdom and remove the economic basis of social hierarchy. Through the abolition of private property, he believes, laborers will recover their “ancient freedom” by casting off their subordination or

Property and Inheritance in Shakespearean Drama 75

“slavery to the nobility” (4.8.27–28). Only when “all the realm shall be in common” (4.2.68) will the social order again be like that in the Garden of Eden before the Fall. In contrast to Cade, medieval and early modern theologians and jurists justified the institution of private property as both a logical and necessary consequence of humankind’s fallen nature. The fall from a state of innocence, resulting in humankind’s expulsion from the Garden of Eden, was assumed not only to have introduced evil into the world but also to have undermined “whatever order still pervaded the universe.”5 The social institution of private property, St. Augustine argued, was a means to reestablish order.6 In the prelapsarian world, while humankind was innocent, all property had been held in common. After the Fall, however, humankind was “compelled to organize society and the diverse institutions which should regulate the ownership and use of the good things which men had once held in common. The institution of property thus represents both the fall of man from his primitive innocence, the greed and avarice which refused to recognize the common ownership of things, and also the method by which the blind greed of human nature may be controlled and regulated.”7 Only in a state of innocence, it was assumed, was the institution of private property unnecessary. The Fall, Richard Schlatter explains, “provided the social and political theorists of Christendom with a conservative argument more persuasive and more subtle than Aristotle’s theory of natural inequality and natural slavery. It accepts the position that men were created equal and insists that even now their souls are of equal worth in the eyes of God. But at the same time it insists that since the Fall the natures of men, all of them depraved, make necessary instruments of social domination.”8 Ideas of the law of nature, articulated by Aquinas, informed later Tudor and early Stuart discussions of both government and property.9 Although it was premised on, and facilitated the maintenance of, inequality and hierarchy, private property was understood as reasonable and just because it was necessary to bind people together in civil society and to maintain the social order threatened by their depravity and self-interest. Thomas Starkey is one of many Tudor counselors and jurists whose dialogues and treatises reveal the profound influence of Christianity and biblical narratives about the Fall upon concepts of property.10 In his Dialogue between Pole and Lupset (written c.1529–32),11 Pole criticizes laws and customs of inheritance, whereas Lupset justifies them as social conventions that secure social order and accord with the law of nature. During their discussion of English inheritance customs, Pole criticizes


primogeniture, the common law rule of aristocratic inheritance upon intestacy, by which “the eldest brother succeeds excluding all the other from any part of the inheritance.”12 This system of succession disadvantages younger brothers in an aristocratic family as if they were neither “the children of that father nor brethren to the heir.”13 He contends that all male siblings should share the patrimony. Primogeniture, which instead excludes younger sons “from all, as though they had committed some great offence and crime against their parents, is plain against reason and seems to diminish the natural love between brother and brother.”14 Lupset, however, contends that Pole’s argument would “take utterly away our policy and whole order of this our realm. You note such things to be faults wherein rests all the honor of our country and which is the ground of all good order and civility.”15 Lupset refers to the political purposes of primogeniture, which, he asserts, are necessary in a postlapsarian world in which “laws are made for the people and the order of them and not the people for the laws . . . therefore laws, ordinances and statutes which contain the people in good order and rule are to be allowed and justly to be received.”16 Laws that regulate society, he explains, have been shaped to correct the fallen nature of humankind; those who first instituted this law of inheritance . . . well considered . . . our people who by nature be somewhat rude and sturdy of mind, in so much that if they had not in every place some heads and governors to temper their rude and unruly affects there would among them be no order at all, and therefore it was . . . ordained and established that in every great family the eldest should succeed to maintain a head, which by authority, dignity and power should better contain the rudeness of the people.17 Customs such as primogeniture have a political function; they ensure an orderly government supervised by rulers representing great landed families. It is the fallen nature of humankind – its unruliness – that necessitates laws that order and structure relationships within the family and polity. Lupset assumes that if the lands of aristocratic families were distributed equally among brothers “in a small process of years, the head family would decay and by little and little utterly vanish away and so the people should be without rulers and heads which then by their rudeness and folly would shortly disturb this quiet life and good policy which by many ages they have laid here in our country.”18 Lupset uses terms such as “unruly,” “rude,” and “foolish” to describe those who lack


private property. These terms participate in what Keith Wrightson describes as a “terminology of social simplification” that elides more formal categories of social hierarchy and degree, such as nobility, clergy, gentry, and commonalty, in order to articulate ideas of “radical differentiation” that dissociate the propertied and unpropertied members of society.19 Lupset argues that the inequality suffered by younger sons in great landed families is outweighed in importance by the fact that “the rudeness of our peoples requires heads and governors to contain them in order and quietness.”20 Consequently, he asserts that the custom of primogeniture should be practiced only by “great houses, as princes, dukes, earls and barons.”21 This exclusivity merits emphasis. The ability to perpetuate noble estates from generation to generation was protected by entail and primogeniture, which enabled the aristocracy to consolidate both title and land as a basis of political and economic power. Entail was a legal device for transmitting property from one generation to the next in order to create a land–family bond that differentiated aristocrats from all others in terms of status, particularly the middling sort including the gentry.22 For this reason, Lupset argues, entail should be practiced only in “great houses”: “this entailing may be suffered for the maintenance of the [great] family, yet in the base families commonly, this is to be admitted surely as nothing convenient, for as much as it brings in great inequality and so much hate and malice among the commonalty.”23 Starkey’s dialogue justifies private property as a convention necessary to curb social unrest, created by the license of those unable to govern themselves. For Starkey, individuals blinded by self-interest will “invariably disregard the common interest, thus proving incapable of governing themselves well.”24 For this reason, the dialogue explains, English law has a political logic that justifies primogeniture only among the aristocracy. It fostered unequal property rights among the nobility, middling, and lower sorts. In a postlapsarian world, different statuses based in private property were socially desirable because they were assumed to produce order.

Rebels and Heirs in 2 Henry VI and As You Like It Property rights become a basis of complaint shared by the nobles and laborers in 2 Henry VI when they learn the terms set forth in the marriage contract of King Henry and Margaret of Anjou. Peace is established between England and France upon agreement “that the duchy of Anjou and the county of Maine shall be releas’d and deliver’d to the King her


father” (1.1.50–52). Because the army of Henry V conquered these territories for England, their return to France becomes “the common grief of all the land” (1.1.77). Anjou and Maine, in the minds of many of the king’s subjects, are the “true inheritance” (1.1.82) that Henry V left not only his son but all his people. Their inability to compel Henry VI to rescind his agreement to the marriage contract reflects the complex theory of the king’s relationship to all the lands of his kingdom. An English king by his coronation oath became responsible for preserving the state and its welfare. In order to maintain the estate and dignity of the crown, he was endowed with the hereditary and inalienable fisc, a complex of lands, revenues, and rights. As G. L. Harriss has explained, although in regard to the fisc the “king’s authority was sovereign, not shared, he was to exercise it for the support of the dignity of the crown.” Consequently, “the king had a duty not to alienate or impair the fisc so that it became insufficient for this purpose. Subjects could thus claim a legitimate concern with the management of the king’s ‘own,’ but that concern stopped short of the power to determine or constrain the king’s use of it.”25 Medieval, Tudor, and early Stuart writers compared the fisc to the soul of the state or its dowry to emphasize that the king was a trustee of it for the realm. The fisc in Roman law “had a public function for which the king was merely the trustee, [whereas] in feudal terms the fisc was the king’s demesne; he was lord of his own to do with it what he willed. Even though he should not alienate it (for it sustained his dignity and rule), he could not be prevented from so doing.”26 Although the feudal theory of his relationship to the fisc legitimizes Henry VI’s decision to surrender Anjou and Maine, it does not content his subjects. Cade voices his own and his followers’ sense of injury caused by the loss of French territory; to them the marriage treaty “hath gelded the commonwealth” and “thereby is England maimed and fain to go with a staff” (4.2.165, 162–63). Among the nobles, Warwick’s sense of grievance is unique; it arises from his role as the warrior who in the name of Henry V “did win them both. / Those provinces these arms of mine did conquer” (1.1.119–20). These responses identify an issue that produces conflicts about property throughout the play: the fact that many people could hold different interests in one property. Just as members of a local community, a manorial lord, and the king could hold different interests in common land, the king’s subjects – both nobles and laborers – understood themselves to hold property interests in the fisc sundered by the marriage contract. Gloucester, the Lord Protector, like other nobles, recognizes that the loss of Anjou and Maine is “the common grief of all” (1.1.77). He alone


among the nobles, however, accepts that this grievance that they share with other subjects of the king does not justify rebellion. York, in contrast, argues that Henry’s decision to cede territory to France indicates the king’s inability to fulfill the responsibilities of his office. This argument fails to disguise the ambitious self-interest of York’s assumption that he himself is not only “far better born than is the King” but also “More like a king, more kingly in my thoughts” (5.1.28–29). York’s argument that obedience is owed only by those who “know not how to rule” (5.1.6) proposes election on the basis of ability and is a valid alternative to inheritance of the crown according to rules of lineal succession. York and other nobles who question the king’s tenure of office and prerogative powers thereby undermine the political order based upon inheritance and lineal succession. The nobles initiate a concatenation of conflicts by challenging the principle of succession, which makes Henry the “legitimate” king, head of the kingdom. The principle of lineal succession to the crown, although based on a unique theorization of the king’s relationship to the land, is analogous to the principle of succession governing aristocratic inheritance. The succession of the eldest male heir of each generation of an aristocratic family was justified, as Starkey’s dialogue explains, only by its political purpose of maintaining social order. By questioning the king’s rightful tenure of his office, the nobles undermine their own hereditary rights and fail to honor their responsibilities as aristocratic landowners to maintain social stability. Their rivalry causes the failure of orderly government; indeed, their factionalism is contained only in response to Cade’s rebellion, which temporarily unites members of the nobility to protect their privileged social status. With the collapse of Cade’s rebellion, factionalism proliferates, leading to the failure of the “head” families to fulfill their social function. The nobles’ factionalism, which serves only their self-interest, indicates why Cade’s aim to abolish all private property and transform the realm into one vast common, like the Garden of Eden, cannot succeed. Only respect for the diverse but interrelated rights and interests in property – the fisc, private property, and the commons – can unite the king, nobles, and laborers. It is deference to property law and custom, which define and organize social relationships, rather than the mere existence of landed property that can maintain social order in a postlapsarian world. As You Like It explores the same themes as 2 Henry VI: familial conflict caused by customs of inheritance and social conflict caused by the erosion of common use rights to land. In this comedy the aristocratic custom of the lineal succession of the eldest male son, by which Duke


Senior succeeded to his title and family estate, is overturned when his younger brother, Duke Frederick, usurps the dukedom. The usurpation of the estate and title of Duke by the younger brother remains largely unquestioned within the play; a fait accompli as the play begins, this challenge to social customs of inheritance will be overturned at the conclusion of the play when the usurper willingly restores the dukedom to its rightful ruler. Although the usurper, fearing a challenge to his title from those loyal to the rightful duke, at one point pursues his brother with an army, Duke Senior and his courtiers accept a contemplative life of retirement in the Forest of Arden. Complaint about the disruption of the aristocratic custom of lineal succession is voiced not by Duke Senior but instead by Rosalind, his daughter and sole heir. It is Rosalind who complains that she cannot easily “forget a banish’d father” and the consequences of this fact upon “the condition of my estate” (1.2.15–16). She is persuaded to “be merry” only when her cousin, Celia, proposes to rectify the wrongs of her father, Duke Frederick. Celia assures Rosalind: “You know my father hath no child but I, nor none is like to have; and, truly when he dies, thou shalt be his heir: for what he hath taken away from thy father perforce, I will render thee again in affection” (1.2.17–21). The friendship of these young women, both potential heiresses to the same dukedom, provides a resolution not to the conflict between their fathers but instead to the intergenerational consequences of that conflict. Celia generously promises to restore to her cousin the estate necessary to maintain Rosalind’s understanding of herself as an “heiress.” When Duke Frederick impedes this plan by banishing Rosalind, Celia not only resolutely flees with her cousin but also forswears her inheritance, asserting, “let my father seek another heir” (1.3.99). Maintenance of the title and landed estate of the dukedom is threatened by the estrangement of the two heiresses from their fathers. The estrangement of siblings in the de Boys family is, as Starkey’s dialogue contends, a result of the gentry imitating aristocratic inheritance practices. Orlando, the youngest son of Sir Roland de Boys, complains of his ill-treatment by his eldest brother, Oliver, who, in accordance with his father’s will, succeeded to the family lands and wealth.27 Sir Roland’s will specifies that the family lands and estate descend to his eldest son, who was given the responsibility of educating his younger brothers in a manner appropriate to their gentry status. The conflict between Oliver and Orlando, as Louis Montrose has explained, represents the popular idea that younger sons were potential sources of social disruption and discontent, especially after the gentry began to imitate the inheritance customs of the nobility.28 Orlando complains that unequal distribution


of property among brothers allows an heir to abuse his younger siblings by denying them the means to maintain not only their economic status but also their familial identity. He accuses Oliver of having “train’d me like a peasant, obscuring and hiding from me all gentleman-like qualities” (1.1.68–70). After his life is saved in the Forest of Arden by Orlando, Oliver voluntarily gives him the family estate. Oliver is not required by custom or by law to transfer his property to Jacques, the brother closest to him in age. Oliver chooses to alienate his property to his youngest brother and adopts a new persona as a husband to Celia, a woman whom he believes to be only the sister of a small landowner who possesses a “cottage, pasture, and the flock” (2.4.92) within the forest. Oliver’s conduct is the comedy’s most obvious questioning of primogeniture as a social custom of inheritance. Whereas the play ends with the restoration of the dukedom to its rightful heir, the eldest brother Duke Senior, the de Boys’ estate is transferred away from the eldest and elder sons without transgressing customs of inheritance. The play suggests the irrelevance of aristocratic customs of inheritance to a gentry family such as the de Boys. Oliver’s decision to marry Celia and remain in the Forest of Arden “as a shepherd” is made possible by the enclosed lands that she has purchased. From the fifteenth century onward, disafforestation – the enclosure of the common lands within forests – limited the use rights of local communities to areas of the forest that supported their economy.29 Corin, a resident of Arden, works for another man, who intends to sell part of the forest lands that he has enclosed for grazing sheep. Corin’s description of the dwelling on the property as a “cottage” suggests that its owner is not a manorial lord or great landowner but instead a smallscale agriculturalist. As Neal Wood has explained, “the pioneers of early capitalist enterprise were usually free tenants, copyholders, and yeomen (tenants as well as freeholders in their own right). . . . The working, nongentlemanly capitalist farmers were among the first and most ruthless enclosers of common and waste land, engrossing their scattered holdings in the common fields and leasing arable and pasture from the gentry, all chiefly for the purpose of grazing their livestock.”30 The play represents the fact that these changes in land ownership have consequences for those whose livelihood depends on common land; an owner of enclosed private property can exclude Corin from lands to which the local community once held common use rights. The comedy does not direct criticism for enclosure and its consequences toward the aristocrats or gentry but instead toward an enterprising cottager whose


absence from his land and failure to perform “deeds of hospitality” reveal his “churlish disposition” (2.4.82, 80). The absent master’s willingness to sell his property to Celia indicates that he understands it merely as a profitable commodity. Its sale to Celia, a member of the aristocracy, who at the conclusion of the play weds Oliver, a member of the gentry, restores the pair’s original identities as people of propertied status.

The locus amoenus in 2 Henry VI and As You Like It The Garden of Iden in 2 Henry VI illustrates the nature of property relationships perpetuated by inheritance practices. It is in the Garden of Iden that Cade meets his death after the collapse of his rebellion and his retreat from London. Hunger forces Cade to leave the cover of the forest and trespass into the enclosed garden. The nature of the garden is not revealed by detailed description of its physical appearance but instead by topoi of epideictic rhetoric used by its owner, Alexander Iden, to explain why he values his property. To Iden the garden is best defined as a “small inheritance my father left me” (4.10.18). As a “fee-simple” property (4.10.25) to which he has exclusive proprietary rights, the garden is the basis of his status as a gentleman. He compares the garden’s attributes to those of “the court.” Praise and blame explain Iden’s personhood in terms of the property: the “small inheritance” is to him “worth a monarchy” (4.10.19). The seeming disparity of this comparison of a small property to an entire kingdom disguises a similarity: both a landed estate and a king’s demesne are inherited by lineal succession. The hereditary landowner, Iden, describes his landed estate as an idyllic retreat where he enjoys “quiet walks” (4.10.17) that allow him to escape a life “turmoiled in the court” (4.10.16). It fills him with contentment that, he asserts, orders both his life and his social relationships by freeing him from competitive and mean behavior: “I seek not to wax great by others’ waning / Or gather wealth, I care not with what envy” (4.10.20–21). Yet, Iden insists, it is not simply the garden’s seclusion from society that secures him from coveting others’ wealth and status; his property also enables him to maintain social relationships based on his paternal obligations to others: “Sufficeth that I have maintains my state / And sends the poor well pleased from my gate” (4.10.22–23). According to his own report, Iden values his property as a means to live as a benefactor who exercises bonds of reciprocity and obligation not only to his family but also to his social inferiors, the poor. But this speech in praise of a gentleman’s life on his private, landed estate, “a monarchy to him,” is also a critique of the manners and conduct of


the court, where a desire for self-aggrandizement determines the relationships of the nobles. Rather than accepting that their birth and inheritance fix their social status, the nobles at the court of Henry VI conspire to overthrow their peers and their king. Strife and competition among members of the royal court make its members ineffective governors. Inherited property, as Starkey’s dialogue explains, is not intended simply to benefit the wealthy but also to secure the status of the “heads” of great families, who as a result can counteract “unruliness” among the lower sort. Instead, in 2 Henry VI inheritance among the nobility neither prevents competition for power among them nor distinguishes governors who understand their responsibilities to their king and poor laborers. Iden’s epideictic rhetoric emphasizes the social obligations of propertied members of society whether they are of noble or gentry status. His speech endorses a conventional understanding of the political obligation of landowners to be content not only with their status as determined by their inheritance but also with their duty to provide for the poor. His words identify him as a man who respects the obligations that his private property imposes upon him, particularly an obligation to provide for the needs of the less fortunate, whom, according to his statements, he “sends . . . well pleased from my gate.” His actions upon actually seeing a poor, starving wretch in his garden, however, entirely contradict his words. He castigates the wretch by listing his offences: “Is’t not enough to break into my garden, / And like a thief to come to rob my grounds, / Climbing my walls in spite of me the owner, / But thou wilt brave me with these saucy terms?” (4.10.33–36). Iden determines to expel the “rude companion, whatsoe’er thou be” (4.10.31). Using a term of social simplification to denigrate a member of the lower sort, Iden contemptuously dismisses the trespasser as “rude.” This is Iden’s response to an unarmed intruder whose identity is unknown. It is only after he has mortally wounded the belligerent man that Iden discovers the identity of Jack Cade. Then Iden redefines his own conduct; he is no longer simply a landholder defending himself from the provocative words of a trespasser but instead a hero whose actions confirm his “triumph” (4.10.76). The significance of Iden’s response to an unarmed intruder who trespasses upon his fee-simple property and threatens him with belligerent language becomes more apparent when compared with Duke Senior’s response to Orlando in As You Like It. Orlando is armed when he first approaches the Duke and his courtiers in the Forest of Arden to demand that they provide him with food “till necessity be serv’d” (2.7.89). The


Duke’s response is first to question Orlando about the cause of his behavior and then advise him, “Your gentleness shall force, / More than your force move us to gentleness” (2.7.102–03). Learning that Orlando is “bolden’d” by “distress” rather than “a rude despiser of good manners” (2.7.91–92), the Duke speaks with courtesy and agrees to provide both Orlando and Adam, his servant, with food and shelter. Among those living in the Forest of Arden, only Touchstone, a fool, uses the language of social simplification to insult Corin as a rude “clown” and thereby identify himself and his mistress as the shepherd’s “betters” (2.4.66, 67). The fool’s insults ironically expose the fact that they are used as simplistic terms of differentiation that not only ridicule others’ social status but also disparage social relationships between rich and poor. The Duke, although he has lost his private estate to his usurping brother, continues to perform his obligations to the poor when he advises Orlando to “sit you down in gentleness, / And take upon command what help we have / That to your wanting may be minist’red” (2.7.124–26). As the antiphonal dialogue of the Duke and Orlando explains, these men have much in common. But it is more than the fact that they have seen “better days” (2.7.113, 120) when living in society. The Duke’s conduct is also implicit recognition that Orlando has as much right to sustain his life on common lands within the forest as a nobleman or members of his court. Duke Senior understands the forest, in which he now resides, as lands to which he as a manorial lord holds property interests but not exclusive proprietary interests. Instead, the forest is land in which other members of the local community also hold customary use rights. These different property interests are the very fabric of society. The forest maintains a web of social relationships that remain despite Duke Frederick’s usurpation and the enclosure of a small portion of what formerly was common land. In contrast to the Forest of Arden, the Garden of Iden is a fee-simple property to which its owner may exercise exclusive proprietary rights. Iden’s words reveal that his foremost concern upon seeing another in his garden is to exercise his right, as an owner of private lands, to exclude all others from its enjoyment and use. Although the intruder’s “saucy words” are cause for offense, to Iden they are secondary in importance to trespass. After rashly providing the trespasser with a sword so that he can engage him in combat, Iden mortally wounds him. Only subsequently does Cade reveal his identity, which enables Iden to defend his actions as just and those of a loyal patriot: “Die, damned wretch, the curse of her that bare thee; / And as I thrust my body in with my sword, / So wish I, I might thrust thy soul to hell” (4.10.77–79).


These words of Iden are the culmination of a transition in his rhetoric from epideictic to forensic topoi about the place or locus of the garden. When he first engages Cade in combat, Iden identifies himself as “Alexander Iden, an esquire of Kent” (4.10.38). Defining his identity both by status and county, Iden provides evidence that his actions conform to those of a gentleman. In this manner, he attempts to disprove the slanderous accusation that only with the aid of servants would he dare attempt to cast Cade out of the garden. It is Cade’s dying revelation of his identity that provides proof that Iden is just in his decision to exclude the trespasser, whose decapitated body is cast “Unto a dunghill, which shall be thy grave, / . . . Leaving thy trunk for crows to feed upon” (4.10.81–84). This scene of Jack Cade in the Garden of Iden – an ironic allusion to the biblical, prelapsarian Garden of Eden – represents the political purpose and consequences of exclusive proprietary rights. According to political theorists, including Starkey, private property is intended to maintain hierarchy, which by differentiating propertied and propertyless members of society orders their relationships. It is necessary because of the depravity of humankind – exemplified not only by Cade’s “rudeness” but also by the conduct of men of propertied status in 2 Henry VI. And it is the depravity of men of property in the history play that qualifies the political justification of private property and inheritance that Starkey endorses. The strife among the nobles and the commons in disregard of both legitimate succession and property rights vitiates the settings of the city and the court. In an idealized pleasant landscape, the enclosed Garden of Iden, where an owner’s property interests legitimize his exclusion of all others from it, there remains no basis for a social relationship among members of society. Instead, there is simply a basis for confrontation and conflict. Although Cade’s guilt as a leader of a rebellion legitimizes Iden’s action as the execution of a traitor, it cannot erase knowledge of the fact that the landowner’s initial intention is to exclude a trespasser at any cost. The communal Garden of Eden that existed in a world of prelapsarian innocence has become the enclosed Garden of Iden, whose owner claims it as individual private property. The Fall, it was believed, had caused the expulsion of Adam and Eve from the Garden of Eden. In Shakespeare’s history play, in a world of private property, intrusion into the Garden of Iden has become a capital crime. The Forest of Arden in As You Like It is a landscape in which common lands remain to maintain property relationships as a basis of a society that increases as many people migrate to it for refuge. Although Orlando describes the landscape as a “desert inaccessible” (2.7.110) before he is


welcomed to join the Duke and his court, its pleasant and restorative qualities are well defined by Duke Senior, who asks those loyal to him in exile to affirm: “Are not these woods / More free from peril than the envious court?” (2.1.3–4). The harshness of fall and winter, to the Duke, is less threatening than courtly life, where envy confirms the depravity of humankind’s fallen nature. The Duke values the simple and harsh life in the forest as a corrective necessary for men of property. In the forest he and his loyal companions feel the penalty of Adam, The seasons’ difference, as the icy fang And churlish chiding of the winter’s wind, Which when it bites and blows upon my body Even till I shrink with cold, I smile and say “This is no flattery: these are counsellors That feelingly persuade me what I am.” (2.1.5–11) By implicitly condemning the insincerity rife at court, he praises the effects of exposure to the seasons in the forest as valued political counselors who provide a corrective to pride. He identifies the conventional attributes of a locus amoenus when he praises “this our life, exempt from public haunt, / [that] Finds tongues in trees, books in the running brooks, / Sermons in stones, and good in every thing” (2.1.15–17). As a result of usurpation of his landed estate and title, the Duke, while living on lands to which customary use rights remain, understands what he has in common with all others as a consequence of “the penalty of Adam” (2.1.5). The Forest of Arden is a postlapsarian landscape that teaches how, as a result of their depravity, humankind must struggle to correct their conduct and maintain social order in a fallen world. In the pleasant retreat offered by the forest, the Duke realizes that both those of propertied and those of unpropertied status share depravity. It is in the Forest of Arden that men such as Duke Senior and Oliver de Boys, who are illegally dispossessed of their property, learn their responsibility to maintain social order by respecting customary use rights and customs of inheritance that differentiate the status of the aristocracy and gentry. Oliver, who abused his status as heir by failing to fulfill his obligations to his youngest brother, loses both his lands and status when the usurper, Duke Frederick, seizes the de Boys’ lands. Oliver subsequently undergoes a conversion in the forest, where Orlando saves him from death and presents him to Duke Senior. Reconciled to his youngest brother, whom, he admits to Celia, in the past he did “oft contrive to


kill” (4.3.134), Oliver succumbs to both love of Celia and the humble pastoral life that she has adopted. His love for Celia is the reason that Oliver gives to explain why he renounces both his property and identity as heir, promising to Orlando, “my father’s house and all the revenue that was old Sir Roland’s will I estate upon you, and here live and die a shepherd” (5.2.10–12). Although at the play’s beginning Oliver was an unkind master to his servant Adam, he, like others of elite and middling status, has been reformed by his experience in the forest. While those who flee to the Forest of Arden do so because their property has been alienated and their status and identity estranged from them, the pleasant landscape provides an opportunity to understand the relationship of property to their personhood. There they share the experience of a simple shepherd, such as Corin, who is affected by the erosion of customary use rights when a small portion of the forest is enclosed. As a result of enclosure, Corin explains, “I am shepherd to another man, / And do not shear the fleeces that I graze” (2.4.78–79). Having lost common use rights to property, Corin accepts that his best lot is to work for a kinder master. Like other characters in As You Like It, the laborer Corin adapts his persona to the restored and re-created society of the forest. Property is the medium through which the characters understand and exercise attributes of their own status and explore and regulate their social relationships to members of their family and persons of different social status.

Conclusion Shakespearean drama indicates the degree to which the concept of property was debated in Tudor England. Enclosure is a noted example of an innovative practice that provoked debate about the definition of landed property. To enclosing landholders, land was no longer a basis of paternal obligations between a manorial lord and a local community who shared interests in common land, but instead a commodity with economic potential determined by security of title and exclusive proprietary interest. Enclosure provokes petitions in 2 Henry VI as well as complaint in As You Like It. Enclosure is also the reason for Jack Cade’s ambition to burn “all the records of the realm” to destroy all proof of title to land and thereby restore the “ancient freedom” (4.8.27) of the commons that existed in a prelapsarian world. Cade, however, aims to do more than restore customary use rights to common lands; he aims to eradicate all private property in order to remove the basis for social hierarchy that differentiates status on the basis of the extent of one’s landed property. To Cade, social status based upon inherited property is called


into question by the fact that “Adam was a gardener” (4.2.134), an assertion of a common origin that challenges those who assume social differentiation is based on landholding by lineal succession. The ultimate aim of Cade’s rebellion is to reestablish the social order based upon common property in the Garden of Eden. The possibility of restoring humankind to a prelapsarian state was not an idea assumed to be feasible or desirable by sixteenth-century theorists of the land law and property. Instead writers such as Thomas Starkey built upon the arguments of preceding jurists and theologians who used the Fall to explain why private property as an institution and the social customs which supported it, particularly common law rules of aristocratic inheritance, were necessary for the flourishing of society. In 2 Henry VI the unruliness of all members of society – those in the city and the court as well as the Garden of Iden – demonstrates why property is a necessary if fallible means of securing social order. Similarly, in As You Like It, the strife of urban and courtly life transforms the experience of living in the pleasant landscape of the Forest of Arden, where characters learn the necessity of respecting a web of property relationships that differentiate their social status. Neither the locus amoenus of the Garden of Iden nor the Forest of Arden restores or recommends the social order of the Garden of Eden in which private property did not exist. Instead, Shakespearean drama represents the reality of human self-interest that disrupts the political function of property relationships in a fallen world.

Notes 1. Citations are taken from William Shakespeare, As You Like It and The Second Part of Henry VI, in The Riverside Shakespeare, ed. G. Blakemore Evans (Boston, MA: Houghton Mifflin, 1974), pp. 365–402, 630–70. 2. Place was a topos of proof in judicial rhetoric and praise in epideictic rhetoric. In classical Greek and Roman poetry as well as the Latin poetry of the middle ages, these topoi informed a variety of literary genres, including epic and georgic, which included description and praise of a “pleasant place” or locus amoenus. See Ernst Curtius, European Literature and the Latin Middle Ages, trans. Willard R. Trask (Princeton, NJ: Princeton University Press, 1973), pp. 195–202. 3. On enclosure in 2 Henry VI see Thomas Cartelli, “Jack Cade in the Garden: Class Consciousness and Class Conflict in the Tudor-Stuart Period,” in Enclosure Acts: Sexuality, Property, and Culture in Early Modern England, ed. Richard Burt and John M. Archer (Ithaca, NY: Cornell University Press, 1994), pp. 48–67; Stephen Greenblatt, “Murdering Peasants: Status, Genre, and the Representation of Rebellion,” Representations 1 (1983), 23–25; Michael Hattaway, “Rebellion, Class Consciousness, and Shakespeare’s 2 Henry VI,” Cahiers Elizabethans 33 (1988), 13–22; and Richard Wilson, Will Power: Essays


4. 5. 6.

7. 8. 9.

10.

11.

12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

on Shakespearean Authority (Detroit, MI: Wayne State University Press, 1993), pp. 63–82. On the consequences of enclosure for agrarian relations in England see Ellen Meiksins Wood and Neal Wood, The Trumpet of Sedition: Political Theory and the Rise of Capitalism, 1509–1688 (London: Pluto Press, 1999), p. 15. On Cade’s identity as a clothworker see Wilson, Will Power, pp. 23–46. Timothy Kenyon, Utopian Communism and Political Thought in Early Modern England (London: Pinter Publishers, 1989), p. 30. St. Augustine, “Contra Adimantum Manichaei discipulum,” xx.2, cited in A. J. Carlyle, “The Theory of Property in Medieval Theology,” in Property: Its Duties and Rights, ed. Charles Gore (London: Macmillan, 1915), p. 122 Carlyle, “Theory of Property,” p. 122. Richard Schlatter, Private Property: The History of an Idea (London: Allen & Unwin, 1951), p. 35. St. Thomas Aquinas, Summa Theologiae, vol. 28 (London: Blackfriars, 1964–76), pp. 1a, 2ae, 95, 2. See R. S. White, Natural Law in English Renaissance Literature (Cambridge: Cambridge University Press, 1996), pp. 29–36, 44–71. The biblical account of the Fall provided English writers with an “authority” for their assertions about property law and inheritance customs, as explained by Nancy E. Wright with Margaret W. Ferguson, “Introduction,” in Women, Property and the Letters of the Law in Early Modern England, ed. Nancy E. Wright, Margaret W. Ferguson, and A. R. Buck (Toronto: University of Toronto Press, 2004), p. 4. Citations are taken from Thomas Starkey, A Dialogue between Pole and Lupset, ed. Thomas Mayer (London: Royal Historical Society, 1989). Spelling in all quotations from Starkey has been modernized. The value of Starkey’s Dialogue to critical study, Neal Wood explains, lies in the fact that it “reflected some of the most significant intellectual trends of the age. Many of its social and political ideas can be traced to humanist and classical sources, but the impress of [More’s] Utopia is unmistakable”; see Foundations of Political Economy: Some Early Tudor Views on State and Society (Berkeley, CA: University of California Press, 1994), pp. 153–54. On property law in Starkey’s Dialogue, see A. R. Buck, “Rhetoric and Real Property in Tudor England: Thomas Starkey’s Dialogue between Pole and Lupset,” Cardozo Studies in Law and Literature 4 (1992), 27–44. Starkey, Dialogue, p. 73. Starkey, Dialogue, p. 73. Starkey, Dialogue, p. 73. Starkey, Dialogue, p. 73. Starkey, Dialogue, p. 174. Starkey, Dialogue, p. 174. Starkey, Dialogue, p. 174. Keith Wrightson, “Estates, Degrees and Sorts in Tudor and Stuart England,” History Today 37 (1987), 21. Starkey, Dialogue, p. 107. Starkey, Dialogue, p. 108. R. W. Hoyle, “The Land-Family Bond in England,” Past and Present 146 (1995), 151–73. See A. R. Buck, “The Politics of the Land Law in Tudor England, 1529–1540,” Journal of Legal History 11 (1990), 200–15.

90 Nancy E. Wright and A. R. Buck 23. Starkey, Dialogue, p. 76. 24. Neal Wood, Foundations, p. 133. 25. G. L. Harriss, “Medieval Doctrines in the Debates on Supply, 1610–1629,” in Faction and Parliament: Essays on Early Stuart History, ed. Kevin Sharpe (London: Methuen, 1978), pp. 75–76. 26. Harriss, “Medieval Doctrines,” pp. 88–89. 27. According to the 1540 Statute of Wills, real property, or land, could be disposed by testament. See Buck, “The Politics of the Land Law,” 200–15. 28. Louise Montrose, “The Place of a Brother in As You Like It: Social Processes and Comic Form,” Shakespeare Quarterly 32 (1981), 28–54. 29. See Leonard Cantor, “Forests, Chases, Parks and Warrens,” in The English Medieval Landscape, ed. Leonard Cantor (Philadelphia, PA: University of Pennsylvania Press, 1982), p. 56. 30. Neal Wood, Foundations, pp. 63–64.

6 Avoiding the Issue of Fraud: 4, 5 Philip & Mary c.8 (the Heiress Protection Statute), Portia, and Desdemona Charles Ross

I A fraud is any intentional deceit. To justify a civil suit, the fraud must result in damages.1 In criminal offenses, according to a popular and reasonable account in the Encyclopedia Britannica, there must be a mens rea, so fraud is not an offense itself but part of an offense: Probably the first attempt to bring fraud within the criminal law was in the sixteenth century, when Britain’s reputation in commerce was beginning to develop. Two statutes were passed in the reign of Elizabeth I dealing with conveyances in fraud of creditors and in fraud of purchasers which curtailed the current fraudulent practice of disposing of assets prior to bankruptcy.2 Although the criminal element never took hold, these two statutes established two kinds of fraudulent conveyancing in debtor–creditor law.3 The first occurs when a debtor intentionally puts assets out of the reach of creditors. This type was the subject of a statute passed in 1571 (13 Eliz. c.5). The core of the law is that transfers of property intentionally made “to delay, hinder, or defraud creditors and others” may be voided. The second form of transaction occurs when a purchaser is defrauded, usually because someone else has taken title. Fraudulent conveyances against purchasers were the subject of 27 Elizabeth c.4, passed in 1584. These were not the first laws in England against fraudulent 91

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conveyancing, nor was England the first country to have such laws, but they have remained the basis for modern American law. Fraudulent conveyancing was part of Shakespeare’s life. It inflects the language of his plays, in which various actions allusively mimic the practice, particularly the conveyance of women. A couple of English statutes against seducing women for their money (6 Rich. 2 c.6 and 4, 5 Phil. & M. c.8) shared some of the terms, if not the legal acumen, of the statutes aimed at stopping frauds against creditors or purchasers. That overlap in part explains why the language of commercial credit is often used in the context of desire. The metaphor arose in part because daughters were to some extent regarded as property, but also because a daughter, insofar as she owed obedience to her father, could be compared to a debtor, and her elopement to fraud against him. In this essay I want to take a closer look at fraudulent conveyances in two plays of Shakespeare, The Merchant of Venice (1596–97) and Othello (1602–04). In particular I want to emphasize fraud, because it turns out that the difficulty or uncertainty in identifying examples of fraudulent conveyancing in Shakespeare’s plays is precisely the point. Just as Shakespeare’s text often hides details such as when, exactly, Portia marries Bassanio and when Othello and Desdemona consummate their marriage, Shakespeare’s characters often fail to acknowledge fraudulent conveyances. The result is that this means of avoiding debt is a metaphor not just for the abduction of young ladies, but also for obscuring the issue of the commoditization of women and the related issue of race: the status of a child fathered by a Moor on a Venetian lady he has abducted. A similar avoidance characterizes statutes against conveying women, which I will look at first. For Shakespeare, the most recent of the laws against trafficking in young women was ineffective because it failed to address fully the problem of fraud. Sharing a similar language of and concern for fraud and conveyancing with the commercial statutes 13 Elizabeth c.5 (1571) and 27 Elizabeth c.4 (1584) – as well as a number of earlier political statutes that served a similar purpose – were laws passed to protect not creditors or purchasers, but families and friends. Following the lines of an earlier statute (6 Rich. 2 c.6), Parliament in 1556 passed a law against carrying away “women who are heirs apparent to their ancestors” (4, 5 Phil. & M. c.8). The problem was what happened if a woman had been left property in her name when fortune seekers (“unthrifty and light personages . . . [and] others that for rewards buy and sell the said maidens”) managed to convey her away from her guardians and marry her. The preamble

Avoiding the Issue of Fraud 93

indicates that Parliament sought to protect property interests [w]here maidens and women – children of noblemen, gentlemen, and others, as well as such as be heirs apparent to their ancestors, as others, having left unto them by their father, or other ancestor and friends, lands, tenements, and hereditaments, or other great substances in goods and chattels moveable, for and to the intent to advance them in marriage – [are] . . . secretly allured and won to contract matrimony . . . either with sleight or force . . . [and] . . . taken and conveyed away from their said parents, friends, or kinsfolks.4 The remedy clause, which follows the statement of the problem, makes it unlawful to “take or convey” a young woman against the will of her guardian – unless “such taking and conveying” be “without fraud” (the tortured syntax of this statute is not the least of its problems): For remedy, be it enacted by the King and Queen’s Majesties . . . and the Parliament assembled . . . that it shall not be lawful . . . to take or convey away . . . any maid or woman child unmarried, being within the age of sixteen years out of, or from the possession, custody, or governance, and against the will of the father of such maid or woman child, or such person or persons to whom the father of such maid or woman child, by his last Will and Testament, or by any other act in his lifetime, hath, or shall appoint . . . or grant the order, keeping, education, or governance of such maid or woman child. The penalty follows the remedy. If the offender is over fourteen years of age, he and his confederates will be imprisoned for two years or fined an amount to be determined in Star Chamber. If the offender deflowers the girl or contracts matrimony, he shall be imprisoned for five years or pay a fine, half to the Crown, half to “the parties grieved.” The statute does not otherwise annul the marriage, probably because the determination of marriage (based on the woman’s consent) was a matter for the ecclesiastical courts.5 If the statute does not restore the ravished and married woman to her previous status, it does seek to frustrate the new husband’s claims to the family property. First, aware that no common law suit could proceed without the proper pleading, the authors of the statute specified that the

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correct procedure against the malefactor was an “indictment of trespass.” They then specified that where the woman consented to matrimony, and so was married, her property would pass to her next of kin during her lifetime, a restatement of the law in 6 Richard 2 c.6. Neither she nor her husband would enjoy her inheritance. At her death, however, the property would pass from her next of kin back to her heirs, although not to her offending husband. In short – and the statute does not state this specifically – her children by her husband would inherit (“as they should”): And after the decease of such person so contracting matrimony, that, then the said lands, tenements, and hereditaments shall descend, revert, remain, and come to such person or persons as they should have in case this Act had never been made, other than to him only that so shall contract matrimony. It is hard to know what is most scandalous: the danger of abduction that this statute was designed to counter, the poor drafting of the statute, or the exceptions that it allowed. First, it applies only to women under sixteen years of age. At a time when women routinely married in their twenties, as Peter Laslett argued in The World We Have Lost, the statute failed to cover a significant portion of the population.6 The statute further exempts London or any other municipality that provides for orphans. If they, like the Court of Wards that controlled most of the great heiresses of the realm, allowed fortune hunters, that was their business. Finally, the pressures operating against this statute are signaled by the exceptions made for matrimonial contracts made by “such person or persons as by the title of Wardship shall then have, or be intitled to have, the marriage of such maid or woman child.” This statute allowed old lords to marry young wards, a situation that even Molière takes for granted and finds amusing, as long as the older man is not a nincompoop. It is perhaps not just the spirit of comedy but the ineffective state of the law that accounts for so many protective fathers or appointed guardians in Shakespeare’s plays: Capulet, Brabantio, Aegeus, Prospero, Calchas, Baptista Minola, the Duke of Milan in Two Gentlemen of Verona (1592–93), Shylock, George Page, Leonato, Lear, Polonius, Duke Frederick, and Duke Senior, and, lest we not take seriously the worries of parents, whoever is responsible for Thisby. Despite the foolishness of most of these men, some of Shakespeare’s young women are fatherless and, if the concerns of 4, 5 Philip & Mary c.8 are any indication of the dangers that faced them, Shakespeare’s audience would have perceived them as imperiled and unprotected. This list includes fatherless women


of the upper classes such as Olivia and Viola, the Helenas in A Midsummer Night’s Dream (1595–96) and All’s Well That Ends Well (1603–04), perhaps Beatrice in Much Ado about Nothing (1598–99), Isabella, Lady Anne, Juliet, Imogen, the princess of France who loses her father in the course of Love’s Labor’s Lost (1595), and Portia. Since Adriana in The Comedy of Errors (1590), despite the practice of modern performances, is a former ward of the duke, she should probably not be imagined as a commoner. Her marital unhappiness in fact signals the helplessness of heiresses who were brought into and bought in the system of wardship that developed to control their property. In addition, the list of Shakespeare’s imperiled women should probably include ladies-in-waiting and others of the middling sort, some of whom are protected by such “friends” as the statute mentions. Women of this sort, who may be imagined to have some property even when unmentioned, include Rosaline, Maria, and Katherine in Love’s Labor’s Lost; Ursula, who gets into trouble in a window; Diana, the widow’s daughter in All’s Well; Juliet and Mariana in Measure for Measure (1604); perhaps Maria in Twelfth Night (1601); and Nerissa. Despite the emphasis on family wealth, the statute covered all classes: that inclusiveness is the point of the phrase “and others” in the first sentence of the preamble. Therefore, the list of imperiled women should include servants and peasants such as Phebe, Audry, Jaquenetta, and various kitchen wenches who, if their ages were known, might be imagined to benefit from the statutory rape provisions of the law. Most of these women appear in the comedies. Little case law developed from the statute designed to protect such women, although Blackstone cites it, noting that in France, daughters required their parents’ consent until age twenty-five and in Holland until age twenty.7 This lack of influence supports the view that the statute was badly drafted as well as out of touch with the social mores. A major problem is that the statute contains an emotional but legally ineffective definition of fraud, using name-calling and outrage in place of logic. For example, the penalty provision makes the mistake of incompletely specifying the types of fraud a man might use to gain the consent of an underage woman – that is, “by secret letters, messages, or otherwise.” The word “otherwise” raises a problem that a good lawyer, then or now, might exploit. Suppose that a father, such as Brabantio, believes a man has used black magic to seduce his daughter. His lawyer would argue that the word “otherwise” covers magic, but the opposing lawyer would argue that it does not. Magic is not a means of communication, like letters or messages, since it is done in secret and the recipient is unaware of this secret means of persuasion. Lacking case law on this

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statute, we do not know whether the issue was alive, but Shakespeare’s play inverts the Marian statute. The Duke is prepared to void the marriage should it be shown that Othello used magic to lure Desdemona, but as Othello used only his words, his action does not fit the Duke’s category: in the play, as opposed to the statute, it does not suffice that the messages of love are secret. Like Brabantio, the statute expresses outrage but proves powerless.8 Unlike the statute, Shakespeare concentrates on Desdemona’s marital status and her father’s personal, not financial, disappointment. The play avoids the issue of Desdemona’s property and fraud. The quality of drafting in the statute may be further gauged by noting that it contains no provision for voiding the conveyance either of the woman or, eventually, her property. The statute aims to prevent either force or fraud in the carrying away of a woman on whom an estate had been settled. Yet except for a provision that the property would be held by the next of kin during the woman’s lifetime, there was no provision to undo the ill effects of the crime. The statute creates the possibility that the woman might be raped, forcibly married, consent to her matrimony at least enough to satisfy the ecclesiastical courts, produce an heir, be murdered – perhaps by falling down a flight of stairs9 – or die in child birth, and leave her entire estate to an infant who, for all the statute did, would be under the control of the offending husband until the child came of age. The language of the statute is too vague, the punishments too lenient, the exceptions too great, for it to have effectively countered what the preamble sets out as a major cause of concern: the ploys of those who use “slight or force” to take young women from the protection of their families. Such elopements may have been “to the high displeasure of Almighty God, disparagement of the said children, and extreme continual heaviness of all their friends,” but they continued, despite the words of the preamble that called this practice “a great, familiar, and common mischief in this our Commonwealth” (4, 5 Phil. & M. c.8). In his personal life, Shakespeare, of course, would have avoided the statute: the heiress to whom he displayed what the law called his “lewd demeanor” was well over the protected age when he got her pregnant and married her. And his most popular plays support the point of view of the persuasive fortune seeker because Shakespeare convinces us that the daughter is right and the father wrong, as in the case of Juliet, Desdemona, Jessica, and possibly Portia. Yet through his suggestive language and plot structures, Shakespeare also managed to conflate the moral outrage over abducted women with the legal acumen of fraudulent


conveyancing laws. During the age of Elizabeth, it seems that it was not law but literature that continued to raise the problem of conveying away women. Except in the case of Kate in Taming of the Shrew or Jessica, who leaves her house with her father’s moneybags, Shakespeare generally underplays the possibility that women from wealthy families (Hero, Cordelia, Portia) might be married for their money. But the shadow of the issue remains.

II Recent scholarship on The Merchant of Venice has been alert to the commercial and social interests represented by Belmont, although a similar analysis has yet to be focused on Othello. Portia may or may not be less carried away in love than Desdemona, but she is far more obviously associated with economic exchange and – with regard to an issue an earlier generation of scholars tended to avoid – far less tolerant of ethnic otherness, including skin color, than her Venetian sister. Her father has died and left a riddle based on a choice of caskets to determine who will be her husband and receive the family fortune. Having set her heart on Bassanio, a soldier and scholar, rather than a drunken German or a burnished Moroccan, Portia arranges for Bassanio to hear a song that warns him against trusting outward appearances. Fancy, engendered through the eyes, should be let die. Bassanio takes the hint and finds Portia’s picture in the least attractive casket. As usual with Portia, we may wonder about her intention. She explicitly tells Bassanio that she cannot teach him how to choose correctly or she will be forsworn, yet she allows the song to perform this task under the pretense of providing music for him to die by, like a swan, should he choose wrong. It is not hard to take the view that despite her father’s will, Portia is a determined agent of her own fate. If her father’s will is all that controls her destiny, then Portia is but a piece of property and may be fairly regarded as a token of exchange, a Maussian and Levi-Straussian gift whose role is to display the power of her father, even beyond the grave, and cement an exogamous relationship to a chosen and well-connected outsider.10 Commenting on the correlation between traffic in women and merchandise, Jyotsna Singh concludes that Portia is prevented from “occupying the position of an autonomous, desiring subject.” She identifies Portia as a “gift within a patriarchal sex/gender system” but only after concluding that gifts “generate a broad range of meanings.”11 This range arises because Mauss made no distinction between gifts and other objects of exchange, and

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Singh does not know quite what to do with Derrida’s decontextualized definition of the gift as what “is ostensibly given with no assurance of anything in return.”12 She concludes, rightly I think, that Belmont is more commercial than earlier critics who regarded it as a fairy-tale “green” world supposed, but I am not sure that the notion of a gift, however broad its range, adequately explains Portia or what she does. Portia is hardly an unreciprocated gift from her father, as Bassanio arrives in Belmont preceded by a messenger bearing presents that warm that part of Portia’s heart that might still be hesitant about the quality of the man who seeks to marry her. What was the point of the loan from Shylock, after all, if not to make Bassanio suitable?13 Part of the problem of understanding Portia is finding the right frame of reference for her. Any good lawyer could have argued Portia is part of an exchange in which consideration in the form of love weighs equally with the value of the gift. It is easy enough to imagine Aragon or Morocco proclaiming the value of his love, should events have demanded it. Nor, I would argue, is Portia to be regarded as a counter in an equally vague economic transition to modern capitalism.14 Historically, what is happening in the play is less what Singh calls “the spirit of the gift [that] offers a rhetorical cover or a mystification of the transactions of global capital and trade” than a demonstration of the fervent debate over the ethics of and remedy for financial fraud. Portia is always on the verge of fraud. She may manipulate Bassanio’s choice of caskets. She gets her way when she appears as Bellario to quibble over the meaning of a pound of flesh. And she threatens to give away what does not belong to her. Although Portia declares that Bassanio, having chosen the correct casket, may take possession of her and of her wealth, she still acts as if she controls that of which, she remarks pointedly, “but now I was the lord”15 When she tells Bassanio to pay Shylock triple what is owed, and triple that, she is offering to give away Bassanio’s money to save Antonio. Had she succeeded, had she herself given money to Antonio, Bassanio could have charged her with fraudulent conveyancing for giving away before her marriage what he has a right to as a result of the marital negotiations (in this case the set of symbolic agreements presented by the choice of caskets). Cases were actually brought in the seventeenth century where families were sued for conveying property beyond the reach of the man who married their daughter.16 This example is what I call a shadow of a fraudulent conveyance rather than an example of it since Portia does not actually make a payment to Shylock and it is unclear whether she has control of her father’s resources, even temporarily.17 It makes legal sense that there is a moment


after her father’s death and before her marriage during which Portia takes possession of the family property, unless we are to imagine a trustee both willing to go along with the father’s fantasy will and immune to the kind of pressure a future beneficiary as smart and determined as Portia might exert. The objection that Shakespeare’s play presumes a world where no woman is allowed to own property seems more the product of our modern imagination than what happens in the play. Ever alert to examples of patriarchal power in the past, we presume that since Portia’s father’s will sets terms on Portia’s marriage, it also sets up an inflexible trust that can hold seisin for the period between the father’s death and the settlement of the property on Portia’s future husband. Portia does not commit a fraudulent conveyance in the play, but once Bassanio chooses the correct casket, we can ask how the law would apply if she had. Our uncertainty about what Portia is saying, rather than mystifying the transition to modern capitalism, suggests that Portia does not fully exploit the legal possibilities of her position. As we have seen, Portia’s language implies that she controls herself and what is hers. If that is the case, she could have conveyed her assets away, hidden them, delayed their transfer, or as the law against fraudulent conveyances also put it, hindered Bassanio’s possession of them and her. Does she delay, hinder, or defraud Bassanio? In fact, she marries him so quickly, one is not sure when the wedding takes place. What is mystified is not the commercial character of Belmont but Portia’s attitude toward fraud for her own benefit. What Portia does not do is significant, then, as she oversees the transfer of her family’s wealth to Bassanio. The only wealth transfer we actually see is the ring she gives him.18 It may be just as Stanley Kauffman explains in his review of the Al Pacino Merchant that “with the last minute ring mix-up, Shakespeare was clearly trying to restore the key of romantic comedy to his play after the grim trial scene.”19 If we look at this exchange in commercial terms, however, the question it raises is whether the debt Bassanio owes Portia – symbolized in her ring and signifying love – outweighs or is more valuable than the one he owes the “judge” who helped his friend. One of the legal questions answered by Twyne’s Case (1601) – the judicial decision that clarified the fraudulent conveyancing statute of 1571 and settled this aspect of debtor law for centuries – was whether love was a valuable consideration for a gift of property. The rule set forth was that love might be good consideration but it could not be “valuable consideration,” which had to involve more than affinity and affection.20 Score one for Bassanio, who had to assume

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that Bellario wanted the ring for its value, not its sentiment. Given the development of the law, it was reasonable to suppose that the “judge” would not regard his claims to the ring’s sentimental value. Unfortunately for him, however, Portia regards the ring for its sentiment, not its monetary worth. The lesson she teaches Bassanio is that the loyalty he owes her is far more valuable than anything he could owe the “judge.” He must learn that her relationship to him is not commercial, but emotional. (She may also be teaching him who is boss, but that is part of the comedy.)

III Like The Merchant of Venice, Othello is about a man who takes another man’s daughter. So obvious is the change that Shakespeare makes to his source when he adds Othello’s elopement with Desdemona that it seems he deliberately draws attention to the issue – how to keep family property out of the hands of a fortune hunter who makes off with an heiress – that motivated statutes against fortune hunters (6 Rich. 2 c.6; 4, 5 Phil. & M. c.8; or 35 Eliz. c.9, which forbade benefit of clergy to ravishers). Although the idea that Othello marries Desdemona for her money never arises in the play, these statutes were also about protecting daughters from unsuitable outsiders, and that issue is everywhere felt in the play. No one mentions the fate of Brabantio’s estate, but it may be presumed he had substantial property and that Desdemona, as the only child, was the heir. It may be that something like the heiress protection statute lies behind Iago’s thought when he tells Othello that if Brabantio can’t divorce Othello from Desdemona, he will “put upon you what restraint or grievance / The law, with all his might to enforce it on, / Will give him cable” (1.2.115–17). Outside of divorce, the only restraint imaginable would be resettlement of any property intended for Desdemona. To the objection that Brabantio is still alive and does not need the statute to tell him how he should dispose his property is the answer that he soon dies – another detail Shakespeare adds – perhaps even before he could resettle his estate. Following this admittedly hypothetical reasoning, an actor playing Brabantio’s brother Graziano might decide that Graziano would have managed to claim some kind of equivalent of 4, 5 Philip & Mary c.8 and control Desdemona’s inheritance during her lifetime. There is no other particular reason why Brabantio’s close relative should show up in Cyprus, something else that Shakespeare added to his source. If we imagine Desdemona to be under sixteen, her elopement would fall within the statute. If she is older, then the issue of fraud remains, although this statute would fail to provide a remedy.


Shakespeare did not write Othello as a commentary on commercial practices. The surface theme of the play is the jealousy felt for his white wife by a dark man, a convert from another culture who never really finds his feet in Venetian society. But Shakespeare never makes the racial theme primary, except in the twisted thought of Iago. There is no equivalent to the Ensign’s direct statement to the Moor, in Cinthio, that Desdemona “has taken an aversion to your blackness.”21 Nor does the text harp on the biracial offspring Desdemona and Othello might be expected to produce. In Titus Adronicus (1590) Shakespeare handled the problem of a mixed-race baby by having the infant killed. The issue – in both senses of the word, the baby and the racial problem – is handled more subtly in Othello, where Desdemona’s death conveniently eliminates the possibility of her pregnancy. One discourse in a play can substitute for another.22 In Othello, as in The Merchant of Venice, where Shylock’s bond overwhelms the issue of religion, commercial concerns cloak the racial issue. These commercial concerns enter the play through realized and unrealized opportunities for fraud. As part of his opinion in Twyne’s Case in 1601, Edward Coke explained that proving that a debtor intentionally conveyed away property to defraud a creditor was difficult, since we are not mind readers, but could be done by examining indirect or circumstantial evidence that he referred to as marks or badges of fraud.23 He listed six, each of which can help show how the theme of fraud lurks beneath the surface story of jealousy in Othello. These marks are the making of a general gift, continued possession, secrecy, conveyances during proceedings for debt, conspiracies (including making revocable gifts), and unusual protestations of innocence. A play is not a court case, but finding parallels is a useful pedagogical or theatrical exercise here, as it is in The Merchant of Venice. There are two areas of potential fraud in Othello, Desdemona’s elopement, where she transfers to her husband the duty she owes to her father, and her suspected infidelity, where she, in Iago’s scenario, transfers to Cassio the affection and duty she owes Othello. According to Coke’s first badge of fraud, a gift has the “signs and marks of fraud” if it is “general, without exception,” meaning that nothing is held back. Desdemona seems to realize her own liability when she insists she cannot return to her house and asks permission of the Duke to accompany her husband to Cyprus. The completeness of Desdemona’s real or imagined transfer of affection indicates, to others at least, her intent to deceive. As for the second arena, once Othello suspects Desdemona, he believes she has held back none of her virtue. His mind runs to extremes, as he imagines himself

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fully invested in Desdemona. “I cannot speak enough of this content. / It stops me here, it is too much of joy” (2.1.196–97). Let there be the smallest doubt, he says, and “Chaos is come again” (3.3.92). Iago phrases this transfer negatively, raising the issue of the second badge of fraud, which is that the donor continues in possession of the goods he has legally “conveyed” to the ownership of someone else. “Her honor is an essence that’s not seen,” says Iago. “They have it very oft that have it not” (4.1.16–17). We know that Desdemona has not given away her honor to Cassio, but Othello believes she is guilty just because she manages both to give it away privately and to keep it publicly. She transfers her affection in secret, and secrecy is Coke’s third mark of fraud, the one Iago exploits to the fullest every time he makes Othello suspect Desdemona’s secret affair with Cassio. The fourth sign of fraud appears when a transfer is made during proceedings, as when a debtor, getting wind that his creditor is coming, then conveys his property out of reach. Again, everything Desdemona does to hide her connivance with Cassio works in this way once Iago has poisoned Othello’s mind (“And by how much she strives to do him good / She shall undo her credit with the Moor” [2.3.358–59]). Coke’s fifth sign of fraud, trust with another party, addresses the revocable gift, perhaps the most important badge of fraud in later law. Othello believes that Desdemona has revoked the love she gave him and given it away, but he has no conceptual framework within which to make the case that she void the transfer, or repent, and so he murders her. An unnecessary protestation of innocence is a badge of fraud: when Desdemona raises the issue of Cassio in the presence of visitors from Venice, Othello strikes her, presumably because a woman who doth protest too much is inherently suspicious (4.1.232). Desdemona’s later protestations of innocence confirm his suspicions as he strangles her: OTHELLO: Think on thy sins. DESDEMONA: They are the loves I bear you. OTHELLO: Ay, and for that thou di’st. (5.1.39–41) Throughout Othello Shakespeare adds elements of fraud and conveyancing to his source story. Although in Cinthio’s story Desdemona’s parents oppose her marriage to the Moor, they know Othello’s intentions, and the couple marry and live together before their journey to Cyprus. Shakespeare adds secrecy to the affair. He adds Brabantio’s charge that Othello used witchcraft to lure away his daughter. Where in the source Othello weighs taking the Cyprus appointment against his


desire to remain with Desdemona, Shakespeare adds the confusion of the Turkish attack on Cyprus that forces Othello to assign the “conveyance” of Desdemona to Iago in a separate ship (1.3.285). He does so not just because the urgency of the situation requires his instant departure, but because time is needed to draw up his “commission” (1.3.281), a metonymic association reminding us that conveyances were legal documents, not just oral transfers, which was why laws were needed to void them. Othello’s use of the word is innocent enough. No merchant, a stranger to Venetian customs, he seems oblivious to the issues his elopement raises – including the status of any children he might have – yet his use of the word “conveyance” prompts Iago (who constantly improvises on small hints) to repeat and exploit this pattern of fraud. Credulity – lending too much credit to Iago, just as Roderigo does in a monetary way – is Othello’s undoing. As part of the pattern of fraud in the play, a scheme of unwarranted property transfers underlies Desdemona’s famous handkerchief. In Cinthio’s story the Ensign (Iago’s part) picks Desdemona’s pocket while she is distracted with his little daughter. He then plants it where the Captain (Cassio) will find it. There is no scenario of Emilia wrongly giving it to her husband instead of back to Desdemona, then Iago passing it to Cassio, who gives it to Bianca. By making Emilia an intermediary, Shakespeare adds an element of fraud. Emilia knows she should return it but other obligations convince her to give it to her husband, just as every debtor has an excuse, often a good one, for avoiding payment. Why shouldn’t Emilia convert something as small as a handkerchief? Her seeming innocence mirrors the moral issues behind fraudulent conveyancing. “She may, I think, bestow’t on any man” (4.1.13), says Iago, as if Desdemona were a debtor who could choose which creditor to pay. Once Iago has the handkerchief, he arranges its further conveyance to Cassio and makes it a symbol of Desdemona’s honor. Othello tells Desdemona the handkerchief had the magic power to keep a husband from straying, but he really regards it as a sign not of his love but of the conveyance of her affections to someone else. Honor is not, however, recoverable property. Nor does Othello ever understand the pattern and give her a chance to remedy her perceived deceit. He has no remedy for her fraud but to murder her. Although Othello himself remains blind to fraud and the implications of his term “conveyance,” little details point to the way Shakespeare imagined Othello’s story in commercial terms. Cassio, for example, is unnamed in the source and his home unmentioned. He is merely a captain. Shakespeare makes him a “great arithmetician” from Florence, a

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city known for its banks, and gives him a name that roughly means “cash” or “cashier” (with a double sense of the teller in a bank and someone who might be cashiered, as Cassio is when Othello demotes him). Shakespeare gives the Ensign a name too. He chose the odd version “Iago” (James, Iachimo), perhaps because it sounds like “agognare,” which means to wish, covet, desire, or long for. According to John Florio’s standard Italian–English dictionary, a panting dog that has run hard and is out of breath is said to “agogna.” Further word play occurs when Shakespeare adds the inn to which the couple elopes and gives it a name, the Sagittarius, which refers to an arrow-shooting centaur. Othello never notices how the name alludes to Iago’s perception of him, but Shakespeare, in naming the inn, probably had in mind that several centaur features might apply to Othello’s love for and conveyance of Desdemona: the centaur was a concupiscent animal, a figure of abnormal lust. In Ovid’s Metamorphoses the centaurs both carry away women (at the wedding of the Lapithae) and are figures of fraud or duplicity (“duplex natura,” 12.504). Another image of deception that Shakespeare adds to the rich imagery of his play is the feint of the Turkish fleet toward Rhodes. The name means the island of roses and might be regarded as a faint reference to Desdemona’s virginity. That the fleet turns toward Cyprus, requiring the senate to send Othello there, suggests the way Desdemona turns in Othello’s imagination from virgin to whore, for Cyprus was the island of Venus and often associated in romances with wanton love. Othello never admits his fraud from the beginning, when he blithely elopes with Desdemona, to the end, when he kills himself. He is a figure of fraud just the same. For where in the source story Othello refuses to confess his role in Desdemona’s murder, is banished, and later murdered by Desdemona’s relatives, in Shakespeare’s drama of deception, Othello must have known what it meant to elope with Desdemona. And when he takes his own life, he is cheating the state of the life he owes it. For her part, Desdemona’s tragic protests include her striving to model herself on her maid Barbary. “A guiltless death I die,” she claims with her last breath, echoing Barbary’s willow song (“it expressed her fortune, / And she died singing it” [4.3.29–30]). In Cinthio’s story, Desdemona sees herself as a warning for young girls not to marry against the wishes of their parents. In Shakespeare’s play, Desdemona acts on the theory that Othello will love her better if she behaves the way she believes people of his background expect. And so following the script of Barbary’s song (“She was in love, and he she loved proved mad / And did forsake her” [4.327–28]),


she seems to accept her fate. This script coincides with the ethical action of a debtor, since she dies paying what she believes is due her husband: her life (“Let nobody blame him, his scorn I approve” [4.3.53]). She does not convey herself away, even when she knows her life is in danger. Othello ends in the opposite way, conveying his body to the grave, when he knows he owes it to the criminal process of Venice. The three main characters in Othello have different degrees of awareness of fraud and race.24 Iago is alert to the problems and the language of race and fraud: he is the only one to scorn Othello’s color and to recognize that the issue is what Desdemona and Othello’s marriage means to Brabantio. “Awake the snorting citizens with the bell, / Or else the devil will make a grandsire of you” (1.1.90–91), he yells, assuming that Desdemona’s children will take on Othello’s features (“you’ll have your nephews [grandsons] neigh to you” [1.1.112]). In contrast to Iago (and unlike Portia), Desdemona seems oblivious to Othello’s skin color, but she seems aware that she has cheated her father when she asks for permission to accompany Othello to Cyprus. Othello is more difficult to figure. He proudly ignores his race, at least until Iago starts to work on him, when he admits that he is “black / and [has] not those soft parts of conversation” (3.3.263–64).25 He elopes with Desdemona without comment, although it would seem that race is his reason for secrecy. We know that he knows the word “conveyance,” since he uses it when he orders Iago to convey Desdemona to Cyprus (“To his conveyance I assign my wife” [1.3.285]), but we do not know whether he realizes its implications, that by using word he implies the fraud in his ravishment of Desdemona (and as 4, 5 Phil. & M. c.8 makes clear, a ravishment can occur even when the woman is willing), or that the word might give Iago ideas. Law is ethical behavior, plus the power of the state to punish and enforce. Literature gives us a glimpse of the ethical dilemmas behind the law. In Shakespeare’s lifetime, society found itself ready to outlaw fraudulent conveyancing by statute. No common law statute existed to undo the ravishment and marriage of an heiress, except to allow property to skip the offending couple and settle on the issue of their marriage, but that does not mean that society was not worried about dark men – or those outside the common law, such as Irishmen – carrying away its women. This worry was a cause of patriarchal anxiety and an element in Shakespeare’s plays.26 The texture of both Othello and The Merchant of Venice suggests that the ethics of commerce and fraud are connected to perceptions of race.27 By hinting at patterns of fraud even as the

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nobler characters avoid it, Othello signals another moral issue, one whose regulation was to garner more and more attention during the seventeenth century.28

Notes 1. The general elements of fraud in the law today are (1) material false representations; (2) made with knowledge that the representation is false or made in a reckless manner; (3) made with intention that the representation be acted on; (4) which was in fact relied upon by the party to whom the representation was made; (5) which caused injury. 2. Encyclopedia Britannica, s.v. “Fraud.” 3. I discuss the problem of combining a penalty clause, which makes the statute criminal and thus to be narrowly construed, with a statute against fraud, which must be broadly construed to be effective, in Charles Ross, Elizabethan Literature and the Law of Fraudulent Conveyance (Burlington, VT: Ashgate, 2003), pp. 105, 117, 120. 4. English parliamentary statutes were frequently printed. See for example the edition of Ferdinando Pulton, A kalender, or table, comprehending the effect of all the statutes that haue beene made and put in print, beginning with Magna Charta, enacted anno 9. H.3. and proceeding one by one, vntill the end of the session of Parliament holden Anno 3. R. Iacobi (London, 1606). I have somewhat modernized spelling. 5. B. J. Sokol and Mary Sokol, Shakespeare, Law, and Marriage (Cambridge: Cambridge University Press, 2003). 6. Peter Laslett, The World We Have Lost: England Before the Industrial Age, 2nd ed. (New York: Scribner’s, 1971), p. 85. 7. Sir William Blackstone, Commentaries on the Laws of England: A facsimile of the First Edition of 1765–69, intro. Stanley N. Katz, vol. 1 (Chicago, IL, and London: University of Chicago Press, 1979), Book 1, ch. 15, pp. 424–26. 8. A reference to 6 Rich. 2 c.6, a statute similar to 4, 5 Phil. & M. c.8, occurs in a run-of-the-mill property dispute that had nothing to do with conveying away women. One lawyer in the report in 1 Plowden 354 (1569), while arguing the operation of exceptions to a statute, gives examples from portions of 6 Rich. 2 c.6 that are fairly identical to language in 4, 5 Phil. & M. c.8. He explains that a woman under twelve who consents to her ravisher is left out of the statute (and “the heir or next of blood to whom the land ought to come, &c shall not enter”) because she “is under the age of consent, because she is without discretion.” She is “within the purview of the Act by the generality of the words, yet she is left out of it by the help of the reasonable construction made of them.” The problem of whether the woman consented would be an obstacle to any application of the latter statute as well. 9. When I wrote this I was thinking of the death of Amy Robsart, which freed Robert Dudley to woo Queen Elizabeth. Then I found that a similar rumor attended the death of Lady Margaret Hoby; see Sokol and Sokol, Shakespeare, Law, and Marriage, p. 124. 10. For Claude Levi-Strauss’s argument in The Elements of Kinship that the incest taboo promoted exagomy and its application to how fathers marry off their


11.

12.

13.

14. 15.

16. 17.

18.

daughters in Shakespeare’s plays, see Lynda Boose, “The Father and the Bride in Shakepeare,” Publications of the Modern Language Association 97 (1982) 325–47. Jyotsna Singh, “Gendered ‘Gifts’ in Shakespeare’s Belmont: The Economies of Exchange in Early Modern England,” in A Feminist Companion to Shakespeare, ed. Dympna Callaghan (Oxford: Blackwell, 2000), pp. 144–59. For the paradox that all gifts entail obligations, see Jacques Derrida, Given Time. I, Counterfeit Money, trans. Peggy Kamuf (Chicago, IL: University of Chicago Press, 1992), a meditation, in part, on Marcel Mauss’s anthropological study, Essaie sur le don (1924). See also Peter Miller, “Past and Present,” in The New Republic 30 (April 2001), 38–44, in his review of Natalie Zemon Davis’s The Gift in Sixteenth-Century France (Madison, WI: University of Wisconsin Press, 2000). He argues that the definition of commercial society included the exchange of passions and sentiments as well as good and services, and that this was always the case, even among Marcel Mauss’s primitive Melanesians. Singh overlooks the social taboo that specifically forbade aristocrats, the warrior class, from engaging directly in trade. William Shakespeare, The Merchant of Venice, 3.2.167. Subsequent citations from The Merchant of Venice and Othello are from The Riverside Shakespeare, ed. G. Blakemore Evans (Boston, MA: Houghton Mifflin, 1974). See Ross, Elizabethan Literature, pp. 1, 7 n. 2. Lisa Jardine, Reading Shakespeare Historically (London: Routledge, 1996), p. 179 n. 53, believes that “Portia remains explicitly in charge of ‘wealth’ throughout the play,” and indeed, Portia’s language, as she presides over the transfer of assets to Bassanio, hints that she has enough control over her family estate that when Bassanio takes possession of what she calls “myself and what is mine” (3.2.165) he is doing not so much what her father’s will instructs but what she allows Bassanio to do. But compare B. J. Sokol and Mary Sokol, Shakespeare’s Legal Language (London and New Brunswick, NJ: Athlone / Continuum International Publishing Group, 2000), p. 79, who mention “the peculiar conditions of Portia’s father’s will, which are probably invalid.” In real life, today, the idea that trustees can resist the blandishments of a beneficiary is a polite fiction. Portia’s ring, in addition to its symbolic sexual meaning, also participates in the often-noticed association of the language of commerce with the language of desire. As Karen Newman argues in “Portia’s Ring: Unruly Women and Structures of Power” (Shakespeare Quarterly 38 [1987], 19–33), the ring shifts from a synecdoche, where the ring is part of Portia, to a metonymy, where it “picks up new meanings which contradict its status as a sign of male possession.” Newman compares Portia to Mauss’s Big Man, a gift giver who doles out more than can be reciprocated “and in so doing wins prestige and power.” I would add that among the “meanings and associations” the ring “accumulates,” in Newman’s phrase, is the question of who owes what to whom. It tests the loyalty Bassanio owes to Portia, so that when he gives it to Bellario, he has morally bankrupted himself. He has nothing left to pay. Still, during Shakespeare’s era it was not a fraudulent conveyance to prefer one creditor over another. Insofar as Bassanio owed a debt of gratitude to Bellario, he could legitimately hand over the ring. But the whole force of the final act is to move in the other direction, to establish Bassanio’s gift as morally if not

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19. 20. 21. 22.

23. 24.

25.

26.

27.

28.

legally wrong. The play actually raises the moral issue that underlies the law better than the statutes or cases. Stanley Kauffman, “Troubled Beauty,” The New Republic 24 January 2005, 24–25. See Ross, Elizabethan Literature, p. 84. Giraldi Cinthio, Hecatommithi (1565), trans. J. E. Taylor (1855). Digitized by Stephen L. Parker, http://rick.stanford.edu/opera/Verdi/Otello/source.html. For example, Mihoko Suzuki argues that Renaissance playwrights regularly substituted the control of women for the problem of controlling the lower classes. See her essay, “Gender, Class, and the Ideology of Comic Form: Much Ado About Nothing and Twelfth Night,” in A Feminist Companion to Shakespeare, ed. Dympna Callaghan, pp. 121–43. See Ross, Elizabethan Literature, pp. 101–03. In The Merry Wives of Windsor Margaret Page shows an unusual degree of expertise in the area of fraudulent conveyancing, while Falstaff seems fairly unaware of the ethical problem. See Ross, Elizabethan Literature, pp. 12–16. The situation is more complex in Othello. See Karen Newman, Fashioning Femininity and Renaissance Drama (Chicago, IL: University of Chicago Press, 1991), p. 74: “Even [Iago’s] manipulation of Othello depends on the Moor’s own prejudices against his blackness and belief that the fair Desdemona would prefer the white Cassio.” Lynda E. Boose, “ ‘The Getting of a Lawful Race’: Racial Discourse in Early Modern England and the Unrepresentable Black Woman,” in Women, “Race,” and Writing in the Early Modern Period, ed. Margo Hendricks and Patricia Parker (New York: Routledge, 1994), p. 46. Sokol and Sokol, Shakespeare’s Legal Language: “Shakespeare shows a quite precise and mainly serious interest in the capacity of legal language to convey matters of social, moral, and intellectual substance” (p. 3). Newman’s chapter on Othello in Fashioning Femininity argues that blacks move from a position as occupiers of “mythic roles” to “mere chattel or economic linchpins”: “By the time of Rymer’s attack on Othello, Shakespeare’s heroic and tragic representation of a black man seemed unthinkable” (pp. 89–90). Newman concludes that “Shakespeare was certainly subject to the racist, sexist, and colonialist discourses of his time; but by making the black Othello a hero, and by making Desdemona’s love for Othello and her transgression of her society’s norms for women in choosing him sympathetic, Shakespeare’s play stands in contestatory relation to the hegemonic ideologies of race and gender in early modern England.” By the same token, allowing the offspring of a ravished heiress to inherit, 4, 5 Phil. & M. c.8 might be said to assume the same “contestatory” posture.

7 Accomplished with What She Lacks: Law, Equity, and Portia’s Con Thomas C. Bilello

Critics have long looked to the tension between law and equity in understanding Shakespeare’s The Merchant of Venice (1596–97). This tension is rooted in Shylock’s demand for his bond’s notoriously onerous penalty, a pound of the debtor’s flesh. The bond itself memorializes a loan made by Shylock to Bassanio, which the merchant Antonio is obligated to repay. When Antonio fails in his repayment obligation, Shylock brings suit for enforcement of the bond’s penalty. Portia, recently married to Bassanio, conceals her identity and arrives at court in the guise of a Doctor of Laws from Padua apparently called upon to direct the Duke’s decision. While acknowledging the “strange nature [of] the suit,” Portia grants that the “law / cannot impugn” Shylock as he proceeds.1 Both the Duke and Portia appeal to Shylock, imploring him to be merciful in enforcing his demand for the penalty. When their pleas fail, Portia allows the enforcement of the penalty but only as strictly construed. The bond, Portia holds, allows for the taking of precisely one pound of the debtor’s flesh – no less, no more – and not “one drop of Christian blood” (4.1.310). This ruling renders the bond’s penalty practically unenforceable. Portia then uses Shylock’s attempt to enforce the penalty in court as the basis for an attempted murder charge, pursuant to which he is effectively dispossessed. Portia’s highly technical reading of the bond – whereby the mere attempt to enforce it is itself a crime – dooms Shylock. Critics generally agree that the play’s court scene examines the conflict between the rigor of common law literalism and the flexibility of equitable construction.2 George W. Keeton, for example, argues that, in restricting Shylock’s recovery to precisely one pound of flesh and no blood, Portia moves from common law to equity, analogous to a strict accounting of 109

110 Thomas C. Bilello

foreclosures on estates made in satisfaction of a debt.3 Mark Edwin Andrews imaginatively (and somewhat controversially) reconstructs the trial scene to depict litigants moving from the common law court, where Shylock’s bond is held to be enforceable, to Chancery in order to obtain what is effectively an injunction of that holding.4 The “injunction” is in the form of the court-imposed no-blood condition. More recently, Stephen A. Cohen has identified in Portia’s ruling the use of an Aristotelian notion of equity, specifically that the no-blood condition equitably preempts the injustice that would otherwise result by enforcing the bond.5 Yet in the face of this broad agreement, various scholars continue to argue that the trial in The Merchant of Venice has no connection to either the operation of equitable construction or English equity jurisdiction.6 Given such apparent agreement, this claim begs investigation. To explore this claim, we must first define equity and determine where in the play such equity may be located. If we cannot find equity to be in operation, we must then be prepared to provide an alternative by which to understand the operation of the court. I will argue that Portia’s judgment has little to do with justice or equity. Instead, she is motivated more by her desire to protect Antonio, her new husband’s confidant. Indeed, by inserting herself by artifice into the legal proceedings to enforce the bond, Portia converts the law into an instrumentality of her will. Interestingly, the criticism of the court scene largely ignores the significance of Portia’s fraud. For even were Portia not professionally unqualified to provide guidance on the disposition of the case – she is, after all, “an unlesson’d girl, unschool’d, unpractic’d” (3.2.159) – her direct personal interest in its disposition renders her judgment fatally partial, and is itself disqualifying. Yet, by disguising herself and effacing her bias, she appropriates the mechanisms of the court. To that extent, Portia succeeds brilliantly: she obtains Antonio’s release from the bond, thereby relieving Bassanio from his moral debt and, by requiring Shylock’s conversion to Christianity, ensures his elimination from the usury market. But her performance in the courtroom cannot be viewed apart from her bias, which ultimately acts as a corrupting influence upon the court’s decision. I will therefore argue that the court’s operation can be best understood in terms not of the conflict between law and equity but rather of the exertion of Portia’s will through her disingenuous use of the law. The notion of equity as understood in sixteenth-century England is commonly traced to Aristotle’s discussion of epieikeia as developed in his Nichomachean Ethics.7 There, Aristotle examines the concepts of “justice” and “equity.” The law, Aristotle argues, is developed as a collection of general rules. While the mechanical application of these general rules is legally just, their application may be problematic in particular cases.

Law, Equity, and Portia’s Con 111

For this defect to be corrected, equity requires that these rules be applied as if the lawgiver “were present” and “had known of this particular case.” Thus, equity operates as “a corrective to what is legally just,” where the strict and unreflective application of law would be inconsistent with the lawgiver’s intention.8 For Aristotle, equity speaks to the imaginative reconstruction of statutes in a manner consistent with the intent of the legislator. Aristotle does not address the practical difficulties resulting from this construction, which include the requirement that the personal will of the judge be suppressed. As Carlton K. Allen argues, the principle of equitable construction “has sometimes led to [judicial] refinements [of law] which border very closely on fiction.”9 This increased emphasis on jurisprudence injects a measure of flexibility into the law, while reducing its certainty. It also amplifies the role of the judge in each particular case, empowering him to determine whether the law is indeed in conflict with equity and, if so, what equity requires. Perhaps the most important early modern construction of equity can be found in Christopher St. German’s Doctor and Student.10 In it, St. German builds upon Aristotle’s formulation. According to St. German, Equyte is a [ryghtwysenes] that consideryth all the pertyculer cyrcumstaunces of the dede / the whiche also is temperyd with the swetnes of mercye. And [such an equyte] must alway be obseruyd in euery lawe of man / and in euery generall rewle therof / & that knewe he wel that sayd thus. Lawes couet to be relyd by equytye. And the wyse man sayth: be not ouer moch ryghtwyse for the extreme ryghtwysenes is extreme wronge.11 As in Aristotle’s construction, equity becomes a corrective where applying “all that the wordes of the law gyueth” is to act “agaynst the lawe.” Equity requires, at times, that the “wordis of the lawe” be abandoned in favor of “reason and Justyce,” in order to “tempre and myttygate the rygoure of the lawe.” St. German echoes Aristotle in locating the problem of law in the failure of general rules: “It is not possyble to make any generall rewle of the lawe / but that it shall fayle in some case.” Where the law of man would, by reason of its generality, offend the law of God or reason in any particular case, equity must step in as the exception to “secretely vnderstande in euery generall rewle of euery posytyue lawe.”12 Equity is itself universal, to be observed “in euery lawe of man / and in euery generall rewle therof.”13 Further, as with Aristotle, equity is to follow the “intent of the lawe,” rather than the strict “wordes of the lawe.”14 The judge must reconstruct the intent of the lawgiver in order to effectuate the equitable application of the law. For St. German (as well


as other sixteenth-century writers, such as Edward Hake), equity was not a set of principles in opposition to the law, but instead a method of interpretation or construction inherent therein.15 St. German’s use of the term “ryghtwysenes” may be understood by comparison with the likely source for his definition of equity. J. A. Guy traces St. German’s concept of equity to the writings of the Parisian theologian Jean Gerson (1363–1429). Guy states plainly that “it is Gerson who unquestionably dictates the formulation” of St. German’s discussion of equity in Doctor and Student.16 Gerson’s definition, as offered in his Regulae Morales, reads, “Equity is justice [which] having weighed all the particular circumstances is tempered with the sweetness of mercy.”17 One significant point of difference is St. German’s use of the term “ryghtwysenes” in place of Gerson’s “justice.” St. German’s substitution of the term “justice” avoids some of the difficulty faced by Aristotle, where “justice” is the strict application of the law even where such application is not “equitable.” St. German can then posit a circumstance where the strict application of law does not result in justice: To folowe the wordes of the lawe / were in some case both agaynst Iustyce & the common welthe: wherfore in some cases it is good and even necessary to leue the wordis of the lawe / & to folowe that reason and Justyce requyreth / & to that intent equytie is ordeyned / that is to say to tempre and myttygate the rygoure of the lawe.18 While St. German generally tracks Aristotle, he is more willing to discuss frankly the consequences of the failure of general law. St. German asserts that the mechanical application of law will, in some cases, be unjust. If equity is operating in The Merchant of Venice, we should see some discussion of whether the law as applied is consistent with the legislator’s intention. There is, of course, no such discussion. Indeed, as Theodore Ziolkowski notes, the word “equity” never occurs in the play;19 the discussion at court is whether the bond’s penalty is legally enforceable. Before the bond can be enforced, however, it must be established as lawful. Given the commercial successes of both Antonio and Shylock, the requisite legal formalities would be familiar to both. In fact, it appears that the parties agree to satisfy the formalities for its enforcement as it has been reduced to writing, sealed, and notarized (see generally 1.3.143–77). Moreover, there appears to be an actual and intended agreement to the bond’s terms between the two, in that Antonio agrees to Shylock’s unusual proposal of a penalty not once but at least three


times. Shylock states: Go with me to a notary, seal me there Your single bond; and in a merry sport If you repay me not on such a day, In such a place, such sum or sums as are Express’d in the condition, let the forfeit Be nominated for an equal pound Of your fair flesh, to be cut off and taken In what part of your body pleaseth me. (1.3.144–51) To this, Antonio responds, “Content, in faith, I’ll seal to such a bond” (1.3.152). Again, after Shylock minimizes the value of the proposed penalty (“what should I gain / By the extraction of the forfeiture?” [1.3.163–64]), Antonio confirms his agreement to its terms: “Yes, Shylock, I will seal unto this bond” (1.3.171). Any suggestion that the penalty was never seriously proffered is rendered moot when Antonio agrees to its enforceability in open court (4.1.181–82). Indeed, both Shylock and Antonio ask the court for the enforcement of the penalty.20 Without any dispute between the litigants as to the enforceability of the bond, there is little for equity (or the court) to do: there appears to be no conflict between the law or the litigants for the court to resolve and therefore no room for equity to operate. Still, St. German’s notion of equity may be implicated if, by enforcement of the bond’s penalty (the law demanded by Shylock), the application of Venetian law results in a violation of the law of God or the law of nature. To enforce the bond’s penalty, the argument might run, is to enforce an unnatural agreement that offends the physical integrity of the person, and no person should be held to such contracts. This is perhaps similar to the common argument that such a bond should be unenforceable as against public policy.21 Nonetheless, the court neither enjoins the enforcement of the penalty nor mitigates its recovery. Instead, the court expressly finds the bond and its penalty enforceable. “You must prepare your bosom for his knife” (4.1.243), Portia directs Antonio, For the intent and purpose of the law Hath full relation to the penalty, Which here appeareth due upon the bond. (4.1.245–47) The suggestion in Portia’s legal judgment is that the law supporting enforcement of the penalty was intended to operate in this manner. This


may be understood as implicating equity, as, for both Aristotle and St. German, the judge is to mitigate the application of law in a manner so as to carry out the legislator’s intent. Indeed, Cohen concedes “the principle of intent is emphatically not the basis of Portia’s equitable decision.”22 Instead, as Cohen recognizes, both the spirit and letter of the law support Shylock’s claims. However, where the spirit and letter of the law coincide, equity (as construed by both Aristotle and St. German) has no role as there exists no need to ameliorate the law’s rigor. The mechanical application of general law is appropriate under those circumstances. In this case, Portia does not attempt to limit the law’s application to the bond, but applies it rigidly, formally, mechanically. Her reference to the law’s intent merely adds credibility to her ruling. If, as Cohen argues, the legislator’s intent has no role in Portia’s ruling, then the notions of equity discussed above are not implicated in the play. While equity is conspicuously absent, mercy is featured prominently in the court scene. But equity is not itself mercy, even if it is merciful in effect. Professor Keeton, an expert in English equity jurisdiction, is careful to distinguish the two, describing mercy as “a higher conception of justice itself than is to be found in the common law.”23 Some commentators, in attempting to understand Portia’s “quality of mercy” speech as an appeal to equity, elide this distinction. However, Portia’s appeal is not to the court for an equitable mitigation of the bond’s penalty, but is an appeal to Shylock’s sympathy for the compromise of his penalty.24 Portia’s “quality of mercy” speech (4.1.184–205) has been cited as important in understanding the operation of equity in this scene, and I would like to examine its operation here. At court, both the Duke and Portia urge Shylock to be merciful and to drop his demand for the bond’s penalty, accepting instead monetary damages. Interestingly, neither Portia nor the Duke characterizes mercy as a function of the court or judge. Upon his arrival in court, the Duke tells Shylock that the world expects him to “show thy mercy” and forgive not only the penalty but a portion of the principal as well (4.1.16–34). When Shylock rebuffs this suggestion, the Duke asks, “How shalt thou hope for mercy, rend’ring none?” (4.1.88). Portia similarly probes Shylock’s willingness to be merciful. After Antonio agrees to the bond’s legal sufficiency, Portia states, “Then must the Jew be merciful,” to which Shylock responds, “On what compulsion must I?” (4.1.182–83). In her response, Portia acknowledges that such cannot be compelled: The quality of mercy is not strained, It droppeth as the gentle rain from heaven Upon the place beneath. (4.1.184–86)


That is to say, as Shylock suggests, that he cannot be compelled by the state or its laws to be merciful. Rather, his “earthly power” will “show likest God’s / When mercy seasons justice” (4.1.196–97). After importuning Shylock, Portia “pray[s] for mercy” (4.1.200). She has spoken To mitigate the justice of thy plea, Which if thou follow, this strict court of Venice Must needs give sentence ’gainst the merchant there. (4.1.202–05) The justice discussed here is akin to Aristotle’s notion of justice – that of the strict application of law. Justice for Shylock is the collection of his penalty. Portia asks that he mercifully compromise his lawful claim and accept less than his legal entitlement. Her plea reminds us of Aristotle’s extension of the concept of equity to individual action, where “a man is equitable . . . who is no stickler for justice in a bad sense, but is satisfied with less than his share even though he has the law on his side.”25 Aristotle develops an analogy between the equitable goals of the judge and those of private individuals. Just as the judge is to be guided by notions of equity in the application of the law, so must individuals operate equitably toward each other in private transactions. Shylock’s repeated demands for justice, then, ignore the inequity that, at the level of private transactions, would result from the enforcement of the bond’s penalty. Although his penalty may be provided for by the law, and as such may be just in the Aristotelian sense, his insistence on its enforcement distinguishes it as inequitable. Of course, equity has another meaning apart from that examined above. Equity also refers to the authority of the English equity courts, including the Chancery court. English equity jurisdiction developed under the authority of the Chancellor, and generally sought to provide relief from the overly rigorous holdings in common law courts.26 It is well accepted that, by the sixteenth century, the Chancery court routinely granted relief from the collection of bond penalties where this would impose undue hardship on the debtor, and monetary damages would suffice.27 According to A. W. B. Simpson, Chancery courts began to draw a distinction between a “penalty,” designed to encourage the obligor’s performance in terrorem, and “liquidated damages,” a bona fide covenant for the payment of possible future damages.28 The penal bond fell into decline as a result in part of the reluctance of the Chancery courts to enforce penalties. Courts worked to avoid enforcing penalty provisions in bonds, and granted relief from bond penalties in, for example, cases of “extreme hardship or oppression.” Such equitable


injunctions became increasingly common in the reign of Elizabeth I. According to Sir George Cary, if a person bound by penalty fails to make timely payment as provided for by the bond, but tenders payment in short order thereafter, “Chancery will compel the obligee to take his principal, with some reasonable consideration of his damages.”29 Such damages would typically consist of interest and demonstrable costs. While it appears that the penal bond’s disfavor developed at least in part after the writing of The Merchant of Venice, English courts were relieving debtors from penalty from at least the fourteenth century. For example, in Umfraville v. Lonstede, the defendant entered into a bond to deliver a document to the plaintiff as of a certain date.30 The bond included a penalty requiring payment of a sum if the defendant failed to deliver as required. When the defendant failed to deliver the document as agreed, the plaintiff sued for the penalty. There appears to be no question of fact as to the defendant’s failure to deliver. However, the defendant tendered delivery of the document at court, citing his prior absence “beyond the sea” (along with his wife’s apparent failure to follow his request to deliver in his stead) and argued that the plaintiff had not been harmed by his failure to deliver. The plaintiff relied on the words of his bond in his prayer for recovery. The court, distinguishing the desired recovery as a “penalty” and not a “debt,” asked, “What equity would it be to award you the debt when the document is tendered and you cannot show that you have been damaged by the detention?” The court held that the plaintiff must wait seven years for his judgment. F. W. Maitland describes this injunction as “an indefinite postponement of that judgement which is dictated by the rigour of the law” and as such a “premonition of Equity.”31 More to the point, although it occurred some two hundred years before Shakespeare’s writing of The Merchant of Venice, Umfraville is one example of how a bond’s penalty might be dealt with by a court of equity. Further, it supports the notion that such equitable remedies were well established at the time of the writing of Merchant. Yet the Venetian court does nothing similar to Umfraville. Not unlike in Umfraville, Bassanio – the recipient of the loan proceeds but an apparent third party to the bond – offers the full repayment of the debt to Shylock in open court, and with generous interest. Bassanio offers Shylock fully two times the loan proceeds, which, considering the three-month loan period, Richard Posner calculates to be equivalent to an annual interest rate of 400 percent.32 In fact, Bassanio states that he will pay Shylock ten times the amount owed if he will forgo his penalty (4.1.209–13) (such repayment to be made, of course, from his new wife


Portia’s riches). Shylock refuses, demanding his penalty under the bond. Unlike in Umfraville, however, the court does not ask Shylock for proof of his damage in light of the amounts proffered. Instead, Portia maintains her formalist approach to the language of the bond in ruling that the penalty is fully enforceable under its strict terms: “A pound of that same merchant’s flesh is thine. / The court awards it, and the law doth give it” (4.1.299–300). Portia’s literalist reading of the bond’s terms is dramatically foreshadowed by Shylock’s legalistic view of his obligation to Antonio. Shylock argues, and Portia concedes, that he cannot be legally compelled to show mercy. In preparing for the enforcement of the penalty, Portia then asks Shylock to “have by some surgeon . . . on your charge, / To stop his wounds, lest he do bleed to death” (4.1.257–58). Shylock asks, “Is it so nominated in the bond?” (4.1.259). Of course, it is not. Portia responds that it is not the bond but charity that demands he act so. Instead, Shylock sees his relationship to Antonio in commercial terms, and as wholly contained in the bond. Shylock is not compelled to do anything for Antonio not provided for in the bond, including obtaining and paying for the assistance of a physician. To this extent, Antonio is commodified. Just as Shylock argues that he owes no duty to the “muttons, beefs, or goats” purchased and sold for their flesh, neither does he owe a duty to Antonio. More pointedly, while in court, Shylock compares Antonio to “a rat” – a vermin with no commercial value – and his own refusal of the bond’s repayment to the exercise of his legal option to collect the penalty: What if my house be troubled with a rat, And I be pleas’d to give ten thousand ducats To have it ban’d? (4.1.44–46) Shylock offers no more reason for his refusal of repayment than “a lodged hate and a certain loathing / I bear Antonio” (4.1.59–62). The loss of his three thousand ducats becomes his purchase price for Antonio’s life. Shylock’s position announces the stillbirth of the friendship desired by him at the formation of the “merry bond.” Shylock’s narrow reading of his obligation to Antonio gives Portia license for her narrow reading of the bond’s penalty: 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. (4.1.306–12) While the bond’s penalty is enforceable by Shylock, any attempted enforcement exposes him to criminal liability if he varies from its strict terms. Indeed, Portia goes on to say that Shylock will be sentenced to die if he takes either “more / Or less than a just a pound” (4.1.326–32). Sensing Shylock’s defeat, Portia taunts him: “As thou urgest justice, be assur’d / Thou shalt have justice more than thou desir’st” (4.1.15–16). Shylock has not, in fact, ever asked for “justice.” His demand has been for “the law,” that is to say, its strict application without mitigation. Justice is not Shylock’s concern except to the extent that an appeal to “justice” may mitigate his receipt of law. Yet Portia’s subtle transformation of Shylock’s plea from law to justice will certainly obtain a different end. Portia seeks to impose an Aristotelian “justice,” the rigorous application of law. But, as Aristotle suggests, this justice is not necessarily equitable. Portia’s notion of imposing a “justice more than thou desir’st” gestures toward the equitable mitigation of law’s application that St. German found necessary. Cohen argues that Portia’s hypertechnical reading of the bond, specifically in its separation of blood from flesh, was a common tactic exercised by equity courts when attempting to discourage the collection of a common law judgment, thus making voluntary noncollection the more appealing option.33 Keeton’s position is that the property-like accounting required of Shylock – “Shed thou no blood, nor cut thou less nor more / But just a pound of flesh” (4.1.325–26) – is akin to that required by equity courts in debtor–creditor transactions. Both positions fail to recognize that equity courts had long-established remedies for debtors with respect to the enforcement of penalties. The court’s typical method of equitable relief was simply not to enforce the penalty, and instead to assess money damages. But Portia’s desire is to provide legal support for Shylock’s enforceability of the bond, so that the attempt to enforce it – or, more accurately, intent to enforce, as no physical attempt is apparent – can be prosecuted as attempted murder under the alien statute. Her goal is neither “justice” nor “equity,” but the redemption of her husband’s friendship with Antonio through the defeat of Shylock. Still, critics see Portia’s performance at court as admirable. Posner, while acknowledging that she is an “imposter” with “an undisclosed interest in the outcome of the trial,” nevertheless refers to Portia in


almost reverent tones as one who applies the law with “sensitivity and tact” so that its spirit is not sacrificed to its letter.34 Posner recognizes that “no equitable principles actually inform” the action in the play.35 Yet he (like many others) seems too willing to discount the fatally compromised position held by Portia qua judge. She is, after all, wife to Bassanio, Antonio’s self-described “dear friend” (3.2.261). Antonio sealed to Shylock’s bond in order to secure funds for Bassanio in his courting of Portia (1.1.161–76). When Shylock brings his action, Bassanio makes plain to Portia his relationship to Antonio, and the import of Shylock’s suit (3.2.258–66). “Is it your dear friend that is thus in trouble?” (3.2.291) asks Portia, to which Bassanio answers, The dearest friend to me, the kindest man, The best-condition’d and unwearied spirit In doing courtesies, and one in whom The ancient Roman honor more appears Than any that draws breath in Italy. (3.2.292–96) Portia resolves to protect Antonio from the bond’s penalty by paying Shylock many times the principle, “Before a friend of this description / Shall lose a hair through Bassanio’s fault” (3.2.299–300). When she understands that Shylock will not allow the monetary satisfaction of his bond, Portia develops a strategy intended to defeat Shylock. However, this defeat requires that she engage in an elaborate fraud – in her words, the “device” (3.4.81) – upon the Duke of Venice and others at court. This fraud undermines any justice or law available in court, as Portia has predetermined Shylock’s fate; the Venetian courts become simply the forum for Shylock’s undoing. To insert herself into the operation of the court, Portia must conceal her identity, and sends to her respected cousin, Bellario, for the garments typically worn by a Doctor of Laws. These garments serve to efface both her gender and her sympathies to the debtor Antonio. It is interesting to note that, in rehearsing her transition from woman to man, Portia identifies the most characteristic male trait as the “telling of quaint lies” (3.4.69). While the lies rehearsed are those of a boy and, as such, not significant, the suggestion is that dissembling defines the male character. By obscuring her gender, Portia perpetrates the first lie, an ironic and necessary step in her entry into the exclusively male court. Bassanio’s soliloquy before the caskets is telling, and foreshadows Portia’s double role in court. As Bassanio begins to analyze the three caskets that will determine whether he has won Portia’s hand in marriage,


he speculates as to the meaning of their adornments: So may the outward shows be least themselves – The world is still deceiv’d with ornament. In law, what plea so tainted and corrupt But, being season’d with a gracious voice, Obscures the show of evil? (3.2.73–77) Just as the ornamentation of the gold and silver caskets conceals the suitor’s failure in the loss of Portia, so do Portia’s garments conceal the evil of her bias. The popularity of Portia’s overly legalistic reading of the bond becomes the “ornament” with which her “tainted and corrupt” judgment is obscured. Indeed, the spectators at court all but demand that Portia use her offices to manipulate the effect of the law, to view the law as a means to the end of punishing Shylock. Bassanio begs Portia to “wrest the law” to her authority by not enforcing Shylock’s bond (4.1.215–17). Portia resists Bassanio’s plea, as such precedent would expose all agreements established in Venice as potentially unenforceable (4.1.218–22). Yet while Portia argues for the primacy of the rule of law, her contrived enforcement of the penalty suggests otherwise. By usurping the judicial role, Portia has arrogated the power to declare the bond void. Because her power to judge is obtained through fraud perpetrated against the Duke, the court, and the litigants, she lacks the authority to act as an agent of the court. She has misappropriated the Duke’s (and thus Venetian) authority, thereby arguably acting with more criminal liability than Shylock, who does no more than present his good-faith claim for enforcement of an agreement to the court. If equity is in fact absent, it should be remembered that this play is more about a sublegal desire for revenge than about the legal process that constrains and controls that desire; the legal process merely acts to mediate the desire. Shylock’s action to enforce the bond’s penalty stems from an “ancient grudge” he bears Antonio (1.3.47). This grudge is based in both commerce and religion: I hate him for he is a Christian; But more, for that in low simplicity He lends out money gratis, and brings down The rate of usance here with us in Venice. (1.3.42–45) Antonio abuses Shylock for both his business of lending money at interest and for his Jewishness. Shylock has long suffered Antonio’s verbal and physical insults. Antonio calls him “misbeliever” and “cut throat


dog.” He spits on Shylock’s “Jewish gaberdine” and beard, and kicks him (see, for example, 1.3.111–12 and 1.3.117–19). Worse, Antonio is unrepentant: “I am as like to call thee so again, / To spit on thee again, to spurn thee too” (1.3.130–31). Despite these hostilities, Antonio recognizes a commercial necessity in Shylock. He demands that the loan be made, but as to an enemy, so that if the bond is not repaid, Shylock may “with better face / Exact the penalty” (1.3.135–37). Shylock’s stated desire, however, is to forget the indignities perpetrated by Antonio, and make the loan without interest, as between friends: I would be friends with you, and have your love, Forget the shames that you have stain’d me with, Supply your present wants, and take no doit Of usance for my moneys. (1.3.138–41) As a token of this friendship, Shylock proposes the penalty as a pound of flesh, and the bond is executed. While Charles Spinosa argues that the bond is Shylock’s attempt to normalize relations with Antonio,36 it must be understood in the context of his desire for revenge: “If I can catch him once upon the hip, / I will feed fat the ancient grudge I bear him” (1.3.46–47). The bond will either generate the goodwill that Shylock seeks or be Antonio’s ruin. Shylock’s “ancient grudge” is quickly stoked by the loss of his daughter and a certain part of his fortune to Lorenzo, a Christian. Shylock no longer speaks of the practical value of the nominated penalty – “what should I gain / By the exaction of the forfeiture?” (1.3.163–64) – but instead of his cemented desire to obtain it: “if it will feed nothing / else, it will feed my revenge” (3.1.53–54). Shylock understands that Antonio, as a Christian, is cruel to him because he is a Jew. Shylock interrogates the notion of their difference in his “Hath not a Jew eyes” speech. Their similarities are broad, extending to the base human desire for revenge: And if you wrong us, shall we not revenge? If we are like you in the rest, we will resemble you in that. If a Jew wrong a Christian, what is his humility? Revenge. If a Christian wrong a Jew, what should his sufferance be by Christian example? Why, revenge. The villainy you teach me, I will execute, and it shall go hard but I will better the instruction. (3.1.66–73) Thus, when Antonio defaults on the loan, Shylock is quick to seek its penalty. Antonio recognizes that Shylock’s vengeance has a commercial


element. Shylock now seeks his life in part because Antonio has assisted Shylock’s debtors in satisfying their obligations, thereby preventing Shylock from collecting the penalties of various other bonds. This interference Antonio understands to be the reason “he hates me” (3.3.21–24). Though the penalty itself is economically empty, its does serve the commercial purpose of removing Antonio from Venetian commerce, thereby allowing Shylock to “make what merchandise I will” (3.1.127–29). Shylock’s enforcement of the bond’s penalty cloaks his desire to ruin Antonio in the guise of legal authority. If the penalty is enforceable, the law legitimates, and indeed enables, the blood lust that its formalities attempt to control. As such, Shylock’s attempt to collect the penalty may be read in opposite directions, at once both legally protected and criminally actionable. This is in contrast to Portia’s attempt to ruin Shylock, which is legally privileged. Portia, in her position as quasijudge, can interpret and apply the law at her discretion. Her rulings both establish the legality of the penalty and reconstruct it as an attempt on Antonio’s life. The text of the play offers no indication that Shylock has made any overt attempt to foreclose on the bond – that is, to injure Antonio – without the court’s direction and approval. Still, Shylock is prosecuted under the alien statute, which states in substance, If it be proved against an alien, That by direct or indirect attempts He seek the life of any citizen, The party ’gainst the which he doth contrive Shall seize one half his goods; the other half Comes to the privy coffer of the state, And the offender’s life lies in the mercy Of the Duke only, ’gainst all other voice. (4.1.349–56) Shylock does not defend against this charge, nor does Portia or the court offer the proof required for conviction. While it is clear that Shylock seeks some measure of personal, ethnic, or religious revenge in pursuing his pound of flesh, it is not clear whether Shylock takes any overt action, either “direct or indirect,” by way of ending Antonio’s life. Shylock appropriately looks to the bond’s enforcement through the courts of Venice and not through some lawless self-help. Consistent with this logic, if an action to enforce the bond in court is a criminal act, Portia acts as an accessory to that crime in that she, through her decision, provides Shylock with the legal right to pursue his penalty: Portia rules that the law will protect Shylock in obtaining his penalty.


Shylock looks to implicate Venetian law in carrying out his revenge. The common single bond, he argues, is legally enforceable and, as such, its penalty should be as well. Indeed, Shylock argues that Venetian law is compelled to enforce the bond for commercial reasons. Venice’s commerce is important, and the nonenforcement of arm’s-length commercial agreements risks loss of confidence from that sector, as Antonio acknowledges (3.3.26–31). Portia, too, recognizes that the law must respect and enforce such private commercial agreements or risk losing the confidence of its merchants for want of certainty and predictability. Shylock understands this and forces the court to enforce his penalty. Indeed, that Shylock is no stranger to commercial transactions strongly suggests that he understood that the bond would be viewed by the law not as merely “merry sport” but as binding. The law, then, becomes the agency, and the court the public forum, through which both Shylock and Antonio (through his agent, Portia) seek revenge. But Portia’s holding will likely degrade the confidence of the business community further than merely not enforcing the bond’s penalty may have done. A conditional bond containing the penalty of a pound of flesh simply does not present a serious commercial appeal, and certainly plays no significant role in Venetian commerce. A holding that the commercial bond’s penalty was unenforceable would not disrupt legitimate commerce. However, Portia’s creative and overly narrow reading of the bond could be extended. Does a contract executed in Venice for the purchase of a lamb exclude any part not expressly identified? Does a contract for the purchase of a portion of land exclude flora not expressly nominated? Portia’s too-clever ruling suggests that Venice maintains an overly active judiciary, and as such does far greater harm to the notion of Venice’s freedom than the mere vitiation of the bond’s penalty. Despite the many implications of her ruling, Portia ultimately acts to uphold and enforce Shylock’s bond. However, her hypertechnical reading renders its penalty unenforceable. Portia converts Shylock’s demand for legal enforcement into a criminal attempt on Antonio’s life. This nonsensical juridical conclusion suggests that the “law” repeatedly demanded by Shylock is infinitely plastic and exists to be manipulated by a partial – and quite literally false – judiciary. As such, Portia, through Shylock’s condemnation, implicates the very laws and legal procedures of Venice. While nominally still inviolate, Venetian law becomes no more than the convenient instrument of Shylock’s demise, and the certainty desired by all with a stake in its commerce – including the Duke, Antonio, Shylock, and Portia – is compromised. Does it matter that Portia obtains her judicial power through deception if her ruling is in

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fact appropriate? We need not reach this question, as she certainly overreaches in resolving the matter at hand. Not only does Portia render the bond’s penalty effectively unenforceable, but she goes on to pursue Shylock personally, subjecting him to death, his estate to forfeiture, and his religious convictions to suppression. Thus, Portia’s bias reduces the Venetian court to a forum of revenge rather than law. Her con, in donning the robes of the Doctor of Laws, is in deceiving the Duke into thinking that she is “accomplished / With that [she] lacks” (3.4.61–62). This is not simply a blue joke. Portia lacks actual authority to act on behalf of the court. The gowns efface her gender but, more important, her usurpation of the mechanisms of the court.

Notes A longer version of this essay was originally published as “Accomplished with What She Lacks: Law, Equity, and Portia’s Con,” in Law and Literature 16:1 (Spring 2004), 11–32, by the Cardozo School of Law of Yeshiva University. 1. William Shakespeare, The Merchant of Venice, 4.1.177–79, in The Riverside Shakespeare, 2nd ed., ed. G. Blakemore Evans (Boston, MA: Houghton Mifflin, 1997). All subsequent citations to the play are to this edition. 2. Owen Hood Phillips, in his chapter cataloging criticism regarding the trial scene, states: “There is a fair measure of agreement among Shakespeare scholars that the trial scene in The Merchant of Venice (4.1) expresses the perennial conflict between law or strict justice on the one hand and mercy on the other”; Shakespeare and the Lawyers (London: Methuen, 1972), p. 91. Phillips’s use of the term “mercy” rather than “equity,” while not uncommon, is problematic. I will discuss the distinction between the terms later in this essay. For a helpful overview of the critical debate concerning the operation of law versus equity in the play, and the development of the “consensus” view, see Charles Spinosa, “Shylock and Debt and Contract in The Merchant of Venice,” Cardozo Studies in Law and Literature 5 (1993), 65–85, 82 n. 3. For a survey of the literature on the theme of “law versus equity” in the play, see B. J. and Mary Sokol, “Shakespeare and English Equity Jurisdiction: The Merchant of Venice and the Two Texts of King Lear,” Review of English Studies 50 (1999), 417–39, esp. 421–28. 3. George W. Keeton, Shakespeare’s Legal and Political Background (London: Pittman, 1967), pp. 144–46. See also his Shakespeare and His Legal Problems (London: A & C Black, 1930), pp. 18–20. 4. Mark Edwin Andrews, Law versus Equity in “The Merchant of Venice” (Boulder, CO: University of Colorado Press, 1965). 5. Stephen A. Cohen, “ ‘The Quality of Mercy’: Law, Equity and Ideology in The Merchant of Venice,” Mosaic 27:4 (1994), 35–54. 6. Sokol and Sokol, “Shakespeare and the English Equity Jurisdiction,” pp. 421–28, cite various dissenting opinions, including, among others, R. S. White, Natural Law in English Renaissance Literature (New York: Cambridge University Press, 1996), p. 164.

Law, Equity, and Portia’s Con 125 7. Aristotle, Nichomachean Ethics, Book 5, ch. 10, trans. Martin Ostwald (Indianapolis, IN: Bobbs-Merrill, 1962), pp. 141–42. Ostwald notes that the Greek noun epieikeia, translated by him as “equity” or “the equitable,” must be understood broadly to “include any notion of decency, fair play, etc.” (p. 141 n. 1). Similarly, Carlton K. Allen understands epieikeia as “the general principle of fairness or equity”; Law in the Making (London: Oxford University Press, 1964), p. 388. 8. Aristotle, Nichomachean Ethics, all p. 141. 9. Allen, Law in the Making, p. 390. 10. The text referred to throughout is St. German’s Doctor and Student, ed. T. F. T. Plucknett and J. L. Barton (London: Selden Society, 1974). This dialogue was first published in England anonymously under the title Hereafter foloweth a dyaloge in Englysshe bytwyxt a doctoure of dyuynte and a student in the lawes of Englande, of the groundes of the sayd lawes and of conscience (1530?). 11. St. German, pp. 95–97. 12. All St. German, p. 97. 13. St. German, p. 95. 14. St. German, p. 99. 15. See for example Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–1642 (University Park, PA: Pennsylvania State University Press, 1992), p. 87. See also J. A. Guy, Christopher St. German on Chancery and Statute (London: Seldon Society, 1985), p. 71: “For St. German himself held that equity is not outside the law, but resides implicitly in and should be observed in every human law.” 16. Guy, Christopher St. German, p. 72, citing P. Vinogradoff, “Reason and Conscience in Sixteenth Century Jurisprudence,” Law Quarterly Review 96 (1908), 374–75. See also Z. Rueger, “Gerson’s Concept of Equity in Christopher St. German,” History of Political Thought 3 (1982), 1–30. 17. Guy, Christopher St. German, p. 72. 18. St. German, p. 97. 19. Theodore Ziolkowski, The Mirror of Justice: Literary Reflections of Legal Crises (Princeton, NJ: Princeton University Press, 1997), p. 181. 20. For Shylock’s demand for “justice,” see for example 4.1.103; regarding his demand for “law,” see for example 4.1.206–07. For Antonio’s demand for “judgment,” see for example 4.1.80–83 and 4.1.243–44. 21. See Phillips, Shakespeare and the Lawyers, pp. 91–118; and Keeton, Shakespeare’s Legal and Political Background, pp. 132–33. 22. Cohen, “The Quality of Mercy,” 49. 23. Keeton, Shakespeare and His Legal Problems, p. 19. 24. See Sokol and Sokol, “Shakespeare and the English Equity Jurisdiction,” 426. 25. Aristotle, Nichomachean Ethics, p. 142. 26. F. W. Maitland famously defines equity as “that body of rules which is administered only by those Courts which are know as Courts of Equity”; Equity and Forms of Action (London: Cambridge University Press, 1909), p. 1. Maitland worked hard to avoid a general definition of such courts, saying “Equity is now . . . a part of the law of our land. What part? That part which is administered by certain courts known as courts of equity. We can give no other general answer” (pp. 13–14).

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27. Spinosa concludes similarly that, by the sixteenth century, Chancery courts commonly provided relief from onerous bond provisions: “It is important to point out that by the 1590s the Court of Chancery had developed the practice of giving relief when bonds imposed extreme hardship. Chancellors had done so since the fifteenth century. And without doubt the Chancery in Shakespeare’s day would have granted relief to an obligor such as Antonio who had missed the payment day but was willing to pay a short time after” (“Shylock and Debt,” 82 n. 3). See also Richard A. Posner, Law and Literature, rev. and enlarged ed. (Cambridge: Harvard University Press, 1998), p. 107. Citing E. G. Henderson, “Relief from Bonds in English Chancery,” American Journal of Legal History 18 (1974), 298–306, and J. H. Baker, An Introduction to English Legal History (London: Butterworth, 1990), pp. 370–71, Sokol and Sokol ask why Antonio never seeks equitable relief from the bond’s penalty when such was, at the time, an established fixture of jurisprudence: “In Shakespeare’s time the opportunity for equitable relief from a conditional bond like Shylock’s was certainly available from such courts, and was well known to be so. This may raise a question: is there a discernible reason why no such relief is ever thought of during its [the play’s] trial scene or elsewhere?” (“Shakespeare and the English Equity Jurisdiction,” 426). 28. A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford: Clarendon Press, 1975), pp. 118–20. 29. Cited in Simpson, History of the Common Law, p. 119. 30. Unfraville v. Lonstede, Year Books 2, 3 Ed.2 (S.S. ii), 58; cited in Allen, Law in the Making, p. 402. 31. Allen, Law in the Making, p. 402. 32. Posner, Law and Literature, p. 107. 33. Cohen, “The Quality of Mercy,” 48 (citing Andrews, Law versus Equity, p. 66; and Keeton, Shakespeare’s Legal and Political Background, p. 145). 34. Posner, Law and Literature, pp. 107, 109, respectively. 35. Posner, Law and Literature, p. 110. 36. Spinosa, “Shylock and Debt,” 75.

8 Drama and Marine Insurance in Shakespeare’s London Luke Wilson

[Men] cannot invent or imagine anything, but the value of it may be assured. Gerard Malynes (1622)

It is odd that Antonio does not insure his ships. Marc Shell (1982) To begin with, a familiar question about The Merchant of Venice (1596–97): Why is Antonio so sad? And some familiar answers: he is sad because he fears losing Bassanio, to whom he is homoerotically attached, to Portia; because he is nostalgic for an order he himself has helped destroy; because it is advantageous for him to be so, in order to legitimate his enormous profits; because he is “foundering under the burden of so much heterogeneous ideological cargo”; and so on.1 In what follows I offer an alternative account of Antonio’s sadness, one guided by late seventeenth- and eighteenth-century preoccupation with the concept of probability, which I regard as unfolding a properly Shakespearean preoccupation with probability rather than as anachronistic in relation to it; the association of the same period with sentimental and neoclassical critiques and redactions of Shakespeare has obscured the way in which Enlightenment thinkers of the period, especially David Hume, articulate certain strains in Shakespeare’s thought. The analysis of the passions of hope and fear in Hume’s Treatise of Human Nature (1739–40), I will argue, at once explains and underscores the strangeness of Antonio’s sadness. For Hume, hope and fear arise with respect to anticipated events: where positive and negative outcomes are both possible the mind will oscillate between images of each.2 As Lorraine 127

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Daston puts it in her account of Hume’s argument, “the only way in which the mind can represent probabilities to itself is to imagine the various outcomes in proportion to their likelihood of occurring.”3 Hume says: “Probability arises from an opposition of contrary chances or causes, by which the mind is not allow’d to fix on either side, but is incessantly tost from one to another, and at one moment is determin’d to consider an object as existent, and at another as the contrary.”4 The passions associated with considering objects or eventualities as actual rather than merely probable, however, are joy and grief; “as if the mind is never at any given instant genuinely uncertain,” hope and fear are really composed of separate and opposed states of certainty, though since the imagination is faster than the passions, there is a sort of overlapping of affect and image, the affect associated with the previous image remaining even though a new and contrary image has taken its place. This phenomenology of hope and fear resembles Salarino’s suggestion that Antonio feels as he does because his “mind is tossing on the ocean” along with his argosies, as if tossed this way and that by an uncertainty bred of successively presented probable outcomes.5 Solanio, too, talks about sadness as produced by uncertainty, emphasizing the analysis of evidence (maps, wind direction) that, it is hoped, will resolve this uncertainty. The problem, of course, is that Antonio seems to have the wrong affect: he is sad when – if he is uncertain about his ships, or about anything else for that matter – Hume would expect him to be fearful. In one sense this tends to confirm Antonio’s insistence that any uncertainty he might have about his ships – and in any case he says he has none – is not what is making him sad. But if the charge of anachronism may be brought against the application here of Hume’s standard, the same complaint cannot be leveled against the opinions of Solanio and Salarino themselves. If Hume would take Antonio’s sadness as an indication that he is not uncertain about anything, Solanio and Salarino insist on reading that sadness as fear – in other words, on pairing it with uncertainty. Even if his friends are wrong about Antonio – and I will suggest they are partly right and partly wrong – their attempt to see sadness as the affective response to uncertainty requires explanation. Quite rightly, critics typically note the suspicious abruptness of Antonio’s rejection of the suggestion that he is in love, and point out the close relationship between erotic and commercial venturing. The problem here, however, is again that if, as seems plausible, Antonio’s concern is that he may lose Bassanio to Portia (Bassanio has written him of his plan to woo her), according to the Humean model Solanio and Salarino seem to presuppose he should again respond with fear, not sadness, as he

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is confronted with a probable outcome rather than an established fact. Here Antonio’s friends seem to be on the right track. What’s wrong, on the other hand, and what they cannot read for what it is, is Antonio’s affect. What Antonio feels is not fear à la Hume, but Salarino and Solanio attempt to describe it as if it is. In this first encounter of the play we see the normative (and, as it happens, Humean) understanding of contingency and its proper affect confronted by and unable to grasp the experience of someone who does not fit the pattern. At first, Solanio tries making fear point forward to a future sadness: “And every object that might make me fear / Misfortune to my ventures, out of doubt / Would make me sad” (1.1.20–22). Later, though, fear drops out altogether when Salarino asks, “Shall I have the thought / To think on this [namely, rocks threatening to wreck ships], and shall I lack the thought / That such a thing bechanc’d would make me sad? / But tell not me; I know Antonio / Is sad to think upon his merchandize” (1.1.36–39). Having transformed fear into sadness, Salarino says that Antonio is sad now because he is imagining being sad when his ships are ruined at some future date: sad at the prospect of being sad. Here, I think, Salarino is right about Antonio. To adapt Solanio’s words when he proposes to Antonio that “you are sad / Because you are not merry” (1.1.47–48), we can say that Antonio is sad because he is not fearful. In Antonio, in other words, risk is dissociated from its normative (and, again, Humean) affect; instead he experiences risk as sadness. He is sad rather than fearful because, where he should be, he is not uncertain; for him risk is not associated with probability. This means that for Antonio risk cannot be managed, that in the most abstract sense he has no grasp of probability. Venture for him is absolute, all or nothing. Marc Shell notes that it is odd that Antonio does not insure his ships, when in late sixteenth-century London (and for that matter in mid-century Venice) maritime insurance was already well-established practice.6 Here, then, is the answer to Shell’s implicit question. It is not that Antonio is sad because he has no insurance (because he is at risk, as Solanio and Salarino implicitly conjecture), but that he has no insurance because he is sad – because, that is, he is unable to understand risk except as something wholly unmanageable, and therefore beyond anxiety (fear). He is sad, rather than nothing at all, because risk thus has the status of accomplished fact (this also is why he is sad rather than fearful at the thought that he might lose his beloved Bassanio, and why he is convinced, as others are not, that forfeiture of the pound of flesh will kill him). His sadness registers affectively an absolute lack of uncertainty. Again, Salarino is right that Antonio is sad at the thought that he might be sad: he can only grasp a

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possible negative outcome as already accomplished, never as a matter of probability. The irony of this appears when we recall that in debating with Shylock Jacob’s clever appropriation of Laban’s sheep, Antonio seems to argue the ethical superiority of risk to calculation. Unlike Shylock’s taking interest, Jacob’s scheme was a “venture . . . not in his power to bring to pass, / But swayed and fashioned by the hand of heaven” (1.3.87–89). But Antonio’s description of Jacob’s exposure to risk is entirely dissociated from probability and human agency. The fact is Antonio does not know what he is talking about; he advocates not the taking of risks but a sort of fatalism. What Shylock grasps and Antonio does not is that risk and calculation are not opposed to one another, and that risk is the subjection of uncertainty to calculation. Antonio seems able to respond to uncertainty only passively; he cannot strategize uncertainty. Still, why is Antonio not happy rather than sad? The usual view of Antonio as a masochist, taking pleasure both in Bassanio’s rejection and in the prospect of Shylock’s knife, may be translated into the idiom of probability by saying that for Antonio sadness and happiness are indistinguishable, just as pleasure and pain tend to be for the masochist. Similarly, this kind of nonstrategic pessimism and optimism are equivalent in being absolute. To adapt Solanio again, Antonio is sad because he is happy. I have already suggested one explanation of why Antonio does not have marine insurance – because he is sad – and there are, of course, others that have the advantage of being more sensible: there is no talk of insurance in Shakespeare’s source; the last thing on Shakespeare’s mind was to produce a verisimilar account of Venetian (or English) business practices; his generic commitments left no room for insurance policies. All true. If Antonio had had insurance he would not have forfeited the bond and the play could have skipped from act 3 to act 5, resulting in possibly more comfortable but certainly less satisfactory comedy. Indeed, the objection that Antonio should have had marine insurance seems a perversity worthy of Thomas Rymer, who complains in his Short View of Tragedy (1692) of the lack of verisimilitude in Cassio’s stunning description of Iago and Desdemona’s sea voyage from Venice to Cyprus, in which tempest and rocks let them pass, for Desdemona’s sake, despite their natural inclination to cause shipwrecks: “Is this the Language of the Exchange, or the Ensuring-Office? Once in a man’s life, he might be content at Bedlam to hear such a rapture. In a Play one should speak like a man of business, his speech must be [politicos], which the French render Agissante; the Italians, Negotiosa, and Operativa; but by this Gentleman’s


talk one may well guess he has nothing to do.”7 If Cassio is such an arithmetician and counter-caster, Rymer complains, why does he not talk like one? Only half concealed in this rant against indecorum in dramatic speech is Rymer’s annoyance over Othello’s irresponsible attitude toward sea travel. Elsewhere he complains that though he moves the action from Venice to Cyprus, “our Poet” did not bother to “make any provision of Transport Ships for” the audience.8 And here, implicitly, Othello is being faulted for having failed to take advantage of the services available through the Office of Assurance at the Royal Exchange. Rymer published Short View in 1692, before the explosion of insurance schemes around 1710–12 but well after the introduction of the tontine system of life insurance in 1653, and five years before Defoe’s Essay Upon Projects, with its proposal for a system of personal injury insurance.9 Insurance was in the air, and so, of course, was the new mathematics of probability that finally endowed it with actuarial precision. Rymer’s notorious objection to the play – “Nothing is more odious in Nature than an improbable lye; And, certainly, never was any Play fraught, like this of Othello, with improbabilities” – may have derived as much from this new discourse of probability as from a neoclassical insistence on decorum.10 So too it must have made him look to the ensuring office rather than the divine Desdemona as the best means of protection against the perils of sea travel. Yet Othello is itself manifestly concerned with the category of the probable; Rymer in his perversity was at least on the right track.11 And similarly, when Merchant first appeared on the stage, marine insurance had been readily available on the Exchange for some years, so that it is not at all unlikely that the more business-minded in Shakespeare’s audience may themselves have wondered, “Why doesn’t Antonio have insurance?” It is therefore worth pausing over the fact that a lack of insurance is the enabling condition of the play, that in it insurance’s absence is structurally crucial. What is the shape of that absence? What is it that Antonio does not have? When Gerard Malynes said in 1622 that “men cannot invent or imagine anything, but the value of it may be assured,” he was exaggerating, but only a little.12 Personal injury insurance, for example, was an invention of the later seventeenth century.13 But many other forms of insurance were available. In addition to marine insurance, insurance could be had for crops and cattle as well as against fire, and one could even take out a policy on one’s own life or on another person’s.14 Marine insurance, which was widely practiced in the classical world and had

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been common throughout Europe for centuries, was in London unusually sophisticated and extensive.15 It was the most common form of insurance, and, along with life insurance, which was often taken out in connection with sea voyages, was widely discussed by writers on merchant and maritime law and in connection with attempts by Parliament and the Privy Council to regulate it.16 The volume of insurance policies issued in the late sixteenth century, or the percentage of ventures insured, cannot be precisely calculated; not all merchants chose to insure. It nevertheless remains a fact that insurance was available for most ventures, and that this kind of risk management was a part of dayto-day life on the Exchange. Sheer, unmanaged risk was an elective rather than an inevitable part of doing business. Risk management through marine insurance resulted, however, in a secondary set of liabilities and risks. First, premiums may sometimes have been prohibitively high. Malynes lists standard premiums as costing between 3 percent of the value insured (London to Rouen) to 20 percent (return trip to the East Indies).17 If profit margins were slim to start with, such premiums might dig deep into the rate of return. In the event of a loss, moreover, claims were not always paid without a legal struggle, which could be expensive and protracted. Jurisdiction over disputes concerning commercial agreements generally was uncertain owing to the ambiguous status of the law merchant in relation to the common law; commercial cases could be tried in a variety of courts, from local fair or pie-powder courts to the central common law courts in Westminster Hall to the prerogative courts, especially Chancery and the Admiralty.18 When it came to insurance claims, recourse to the law was even more unpredictable, with multiple available jurisdictions; the statutory establishment of a mercantile court in 1601 to handle insurance disputes does not seem to have resolved these problems.19 As a result, legal adjudication itself, and jurisdictional forum shopping, became a part of the probability calculus, leading Malynes to an etymological quibble: The court of Chancerie is properly called a court of Conscience, because it reasoneth on the part of the complainant, by argument taken from the Law of Nature before mentioned, Quod tibi fieri non vis, alteri ne feceris: for in the Chancerie everie man is able by light of nature to foresee the end of his cause, and to give himselfe a reason thereof, and is therefore termed a Cause; whereas at the common-law the clients matter is termed a Case, according to the word Casus, which is accedentall; for the partie doth hardly know a reason why it is by law adiudged with or against him.20


Finally, if marine insurance could distribute risk, it might instead simply displace it. Although it could effectively minimize the risk borne by the insured, it also meant an assumption of risk by the insurer to a significantly greater extent than is the case in modern insurance. Before the late seventeenth century, policies were underwritten not by corporations or “friendly societies” able to distribute risk across all their policyholders as a group, but by merchants who engaged individually for whatever amount they were willing to hazard; risk was thus to some extent distributed among underwriters, but for each it typically remained substantial. Insurance was itself a form of speculation, and insurers could reinsure against their own potential losses.21 In The Merchant of Venice, Antonio’s ships are reported as having miscarried, only to turn up safe and sound in act 5. This kind of situation, in which Antonio does not know whether his ships are safe or lost, was itself manageable by insurance. Not all insurance policies were taken out at the beginning of a voyage; it was not unusual to insure only after the venture was well under way, in response to unanticipated stormy weather, the outbreak of hostilities between nations, an overdue arrival date, and so on. Vessels already under sail in distant seas could be insured in two ways. The first was to take a standard policy, and in this case much care was devoted to the prevention of fraud. In an insurance case tried in 1559, for example, it was explained that under certain conditions such policies were void: Althoughe no certen newes ys or can be proved to be or come uppon land to the contry or place, wheare the same assuraunce shall happen to be made, of the losse of the goodes, wares or merchandises so assured happeninge before the tyme of the said assurance, yeat if anye newes thereof might have comen, althoughe none came in dede, or if any messangers might have comen by possibilitye from the said place wheare the losse was, unto the place wheare the assurance was made (althoughe no messangers came in dede), accomptinge, entendinge and takinge the same possibility after this sorte and manner: to saye allowinge to the said messanger one houre for every three miles travayle by land or by sea, for every three myles being distant betwene the place where the said loss happeneth to be and the said place wheare the assurance happeneth to be made.22 There is no interest here in evaluating whether a report is true, but only in whether if there were a report it could be true. If a report could be true – a possibility determined through distance and a standardized rate of

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travel – then it was too late to take out a policy. The probability that the ship has been lost is kept separate from any question about the probability of reports that the ship has been lost. The rule means that one can take out a policy on an overdue ship reported lost, but only if that report cannot possibly be true. There are only two classes of reports: those that cannot be true and those that can. This is a possibility/impossibility standard, and it does not admit of degrees of probability. The underlying question of the ship’s fate remains a matter of probability (in fixing on a premium, insurer and insured will weigh the likelihood that the ship’s arrival has merely been delayed), but the probability of reports themselves is strictly irrelevant. Such a policy would cover a ship that had already been lost, but only as long as it was not possible to know it had been lost. When a ship was already overdue, premiums (and the underwriters’ potential gain) on such policies were higher than they would have been otherwise, since the likelihood of mishap was perceived as higher. But ships already at sea could also be insured by means of a distinct kind of policy that, by the insertion of the phrase “lost or not lost,” explicitly covered losses that might have already happened. In such cases the speculative potential of marine insurance was especially high. When a ship was overdue in port and its perishing had not been established as fact, one could insure against its loss even if that loss had already occurred and – this is the key difference – even if a possibly true report of it had already arrived. Malynes describes the practice in Lex Mercatoria: Other assurances are made, and these the most dangerous of all, because they are made upon ships and goods, lost or not lost; which is not onely in regard that a ship knowne to be departed, doth not arrive in many moneths after to the appointed place of discharge: but also if any newes doe come that the ship and goods is cast away, nevertheless if the Assurance be made with the words (lost or not lost) the Assurors beare the adventure of it, unless it can be proved that the partie who caused the Assurance to be made, did see the ship when it was cast away, in this case it is a fraud23 Malynes holds that nothing less than the insured’s having himself witnessed the loss of his ship voided a “lost or not lost” policy made subsequently; mere reports of a loss, even if they could have been true, were not sufficient. Lex Mercatoria dates from 1622, but that this was customary practice much earlier, at least as early as the latter part of the sixteenth century, is suggested by provisions in the “Booke of Orders of


Assurances” (c.1577–85). This document sets rules for both the “ordinary policy,” where reports of loss cannot, by the usual method of computation, be true, and the “lost or not lost” policy, in which “whosoever do underwrite such policy of assurance shall not benefit himself by computation, in reckoning that the news might have come of the loss before the assurance was made, after the rate of three English miles, or one Spanish league, to an hour.”24 In removing the “computational” basis for assessing whether a potential report is true – by preventing not only impossible but also possible reports of loss from voiding a policy – the availability of “lost or not lost” policies expanded the reach of probability analysis beyond the bare probability that a ship will be lost to include the probability that reports of a loss are true. Ordinary policies taken out when the insured ship is already at sea necessitate painstaking attempts at precision in measuring time and distance while nevertheless anticipating that, as the “Booke of Orders” puts it, “doubt and controversy may grow thereupon.”25 “Lost or not lost” policies eliminate the need for such precision, but only at the cost of extending the reach of probability analysis. This extension of probability to embrace evaluation of reports of loss was an innovation for marine insurance, certainly, and it does not seem to have been a feature of any form of earlier insurance, which dealt with the uncertainty of outcomes but not with the probability of credibility and does not seem to have asked before “How likely is it that this report is true?” but only “How likely is it that this or that will come to pass?” In earlier ways of thinking, uncertainty was framed in terms of belief, and thus of truth; the new forms of insurance represent a new way of thinking in which uncertainty is a matter of probability and thus of risk. Traditional marine insurance policies covering late returns remain closer to the first of these models, especially in their evaluation of reports of loss. Although the truth of such reports is bracketed, this is not because truth is replaced by probability and the risk model but, on the contrary, because the possible is deemed procedurally equivalent to the certain. “Lost or not lost” policies – which were, again, innovations of the 1580s and unique to the London insurance market – acknowledge that the possible may be more or less probable. Shakespeare, too, was interested in the evaluation of risk in relation to the probability of reports, especially when it came to maritime adventures. Shipwreck, and maritime adventure generally, are almost always what must happen offstage, and thus become closely associated with reports of what has occurred by eyewitnesses and others, as in the relatively uncomplicated examples of the reports of wrecks at sea in

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Twelfth Night (1601), The Winter’s Tale (1610–11), and The Tempest (1611). In a more complex case, Thomas Rymer’s indignant engagement with Othello in terms of its (im)probability is anticipated in that play in the scene in which the Venetian counsel weighs conflicting reports of the disposition of the Turkish fleet, concluding (correctly) that the fleet is mostly likely bound for Cyprus, not Rhodes.26 In The Merchant of Venice, the probability of reports of the fate of Antonio’s ships is debated several times in acts 2 and 3 (at 2.8.26–34 and more extensively throughout 3.1 and at 3.2.66–71); their total loss is considered certain by 3.2.271. Unlike the Venetian senators of Othello (1602–04), the Venetian merchants of The Merchant of Venice, are mistaken; the final word on the fate of Antonio’s ships (of three of them at any rate) is not delivered until near the end of act 5, when Portia reveals a letter reporting to Antonio that “three of your argosies / Are richly come to harbor suddenly” (5.1.276–77). She forestalls any inquiry into the credibility of her news by immediately adding, “You shall not know by what strange accident / I chancèd on this letter” (5.1.278–79). For an earlier generation of critics, the emphasis here on accident might adumbrate divine intervention or even Portia’s own association with divinity. Those who favor a more skeptical, ironic Shakespeare will see instead a self-conscious gesture toward comic closure whose contrivance is deliberately underscored by Portia’s mysterious refusal of details when Shakespeare might as easily have had her offer some plausible explanation to set our minds at ease. The constraints of genre sanction this stagy foreclosure of speculation on the credibility of the letter, as well as any inquiry into the probability of Portia having access to it. I am not sure whether this distracts us from, or calls our attention to, the realization that, since this report being true would mean that earlier reports were false, there is then the unsettling possibility that, conversely, they may have been true and this one false. There is no more than a hint of this, if even that. False or true? Lost or not lost? Shakespeare self-consciously offers genre here as the disabler of such questions; the convergence here of the momentary sound of the grinding of the generic gears and the restoration of a loss that is itself in doubt suggests (to me, anyway) that Portia’s miraculous announcement is something akin to the generic equivalent of an insurance policy, as if she says to Antonio, you did not insure your ships, but I – or the playwright, the genre, maybe even providence – did. The difference between the prevention of loss by these agencies and marine insurance is that the latter compensates for losses that have already occurred. And yet marine insurance, and what may be called risk


management by genre, or perhaps “generic insurance,” are structurally symmetrical. Antonio’s loss has been “realized” affectively in his (masochistic) despair and in other consequences: his financial collapse and Shylock’s lawsuit against him. Whereas an insurance policy would have repaired a material loss by preempting its emotional, financial, and legal consequences, Portia’s brand of risk management does precisely the opposite, making the loss not to have happened while preserving those consequences in a form precisely controlled through her manipulation of the outcome of the trial in act 4. Commercial insurance repairs a loss by preempting its effects. Generic insurance in Shakespearean comedy preempts the loss while preserving the effects, stipulating that comic anxiety remain “salutary” rather than fatal.27 We can think of genres as risk management tools useful in both literary composition and literary consumption. For the producer of literary texts, genres guide choices in a compositional process that usually involves a give and take between adherence to and departure from generic formulae. The literary consumer, in turn, is able to anticipate outcomes by referring to generic conventions. Both processes may be described as forms of risk management. For the producer of literary texts, genre serves as a guide to the relative risk of compositional choices; too radical a departure from generic norms risks generic failure, as may too strict an adherence to them. For the consumer, aesthetic pleasure arises in the recognition of a relationship between anticipated and unanticipated (generically probable and improbable) dramatic events. If for the producer the risk may ultimately be economic, for the consumer what is at stake is the management of affective exposure. It might seem, then, that generic insurance – produced here in composition and paying off, one might say, in consumption – is fundamentally different from commercial policies issued on the Exchange to the extent that it both exposes and indemnifies. Maybe so; it is certainly hard to see commercial insurance as seeking to preserve a residue of risk for its own sake. And yet such a residue is precisely the condition of possibility of commercial insurance, above all in the form of the premium paid (which, as we have seen, could exceed 20 percent of the value insured, and which a policyholder paid knowing there was the risk that there would be no loss), but also as the secondary risks and potential expenses associated with litigation should underwriters refuse to pay a claim. Similarly, if the episode of Portia’s letter works as a critique of generic demands cast in a form structurally analogous to marine insurance, such a critique may seem aligned with the objection Antonio might level

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against insurance as (like usury) an ethically compromised avoidance of risk, fate, or providence. But its implications I think run elsewhere, toward a plea for the management of risk by people rather than by genre. Genre in the episode involves a disablement of probability and thus a foreclosure of the realm of risk per se. Antonio, similarly, never embraces probability or its entailments, but for different reasons and with different consequences. The opening scenes, as I have suggested, present his position as anomalous, and that of his business associates (even if they are partially mistaken about him) as the norm. Moreover, where Antonio’s refusal of risk and its management through insurance would drag the play head first into tragedy, genre’s cork buoys it up. But if it does so nominally by making probability irrelevant and establishing credibility by fiat, the effect is perhaps more unsettling. On the one hand, Antonio’s failure to insure is socially destructive, but on the other, a dramatic practice that takes out generic insurance to ensure the restoration of social equilibrium finds itself vulnerable to judgment on grounds of an improbability founded not within but somewhere beyond the bounds of genre.28 If Othello is about the potency of probabilistic reasoning and its perversion by Iago (the senators’ correct conclusion regarding the Turkish fleet contrasting with Othello’s failure to discern the falsity of Iago’s plausible tale), Merchant presents a world in which probabilism is a norm nevertheless conspicuously absent or irrelevant where it ought to be most in view: in Antonio himself, and in the play’s summary refusal to debate the comparative credibility of the letter in Portia’s possession and the previous reports that contradict it. One might even say that the realm of the probable is nearly squeezed out of the play between these two forms of denial, which correspond, respectively, to the assurances of grief and joy Hume associates with contradictory certainties of good and evil eventualities.29 A sophisticated appreciation of risk and probability, I have suggested, was the conceptual terrain on which business and theatrical practices executed joint maneuvers in late sixteenth-century London, especially in connection with reports brought home of occurrences in remote locations, whose probability had to be considered in “lost or not lost” policies, which were expressly prohibited in both Antwerp and Spain and permitted only on the Exchange in London.30 London fostered an insurance industry that made the calculation of the probability of human testimony its business. The theatrical enterprises London also fostered made it, I suggest, their business as well.


Notes 1. Theodore B. Leinwand, Theatre, Finance and Society in Early Modern England (Cambridge University Press, 1999), pp. 15–18, 115; Michael Ferber, “The Ideology of The Merchant of Venice,” English Literary Renaissance 20 (1990), 438. This essay was originally written for the 2003 Shakespeare Association seminar on Risk and Catastrophe, organized by David Glimp and Julian Yates. Thanks to them and to the seminar participants for their thoughtful remarks and suggestions. Thanks also to Karen Cunningham for a helpful reading of the essay in anticipation of its appearance here. 2. David Hume, A Treatise of Human Nature, 2nd ed., ed. P. H. Nidditch (Oxford: Clarendon Press, 1978), pp. 438–48. 3. Lorraine Daston, “Fortuna and the Passions,” Chance, Culture and the Literary Text (Michigan Romance Studies 14), ed. Thomas M. Kavanagh (Ann Arbor, MI: Michigan Romance Studies, 1994), p. 36. I acknowledge Daston’s influence on my reading of Hume throughout. 4. Hume, A Treatise, p. 440. 5. The Merchant of Venice, 1.1.8, rev. ed., ed. M. M. Mahood (Cambridge: Cambridge University Press, 2003). I follow Mahood (pp. 191–95) in designating Antonio’s business associate Salarino rather than Salerio as in most other editions. 6. Marc Shell, Money, Language, Thought: Literary and Philosophic Economies from the Medieval to the Modern Era (Berkeley, CA: University of California Press, 1982), p. 54 n. 19; see also Ferber, “Ideology,” 438 n. 10. Antonio’s insistence that “My ventures are not in one bottom trusted, / Nor to one place; nor is my whole estate / Upon the fortune of the present year” (1.1.42–44) does not argue a recognition of probability to the extent it might appear. As Ferber points out, “it seems that the bottoms are entirely his own, so that when they miscarry he must absorb the entire loss” (“Ideology,” 438 n. 10). Shell suggests that Antonio may not have insured his ventures because he is overconfident or careless, or because insurance for him seems too much like taking or paying interest, which he says he refuses on principle. 7. Thomas Rymer, Short View of Tragedy, in Critical Works, ed. Curt A. Zimansky (New Haven, CT: Yale University Press, 1956), p. 86. 8. Rymer, Short View, p. 142. 9. On tontine life insurance see William R. Scott, The Constitution and Finance of English, Scottish and Irish Joint-Stock Companies to 1720, vol. 3 (Cambridge: Cambridge Univeristy Press, 1911), pp. 368–69. 10. Rymer, Short View, p. 134. 11. See Joel Altman, “ ‘Preposterous Conclusions’: Eros, Enargeia and the Composition of Othello,” Representations 18 (1987), 129–57. 12. Gerard Malynes, Consuetudo, Vel, Lex Mercatoria, or, The Ancient Law-Merchant. Divided into three Parts: According to the Essential Parts of Trafficke (London: Adam Islip, 1622), p. 149. 13. For “Of Assurances” and “Of Friendly-Societies,” Daniel Defoe’s innovative schemes to institute personal injury insurance for mariners, see An Essay Upon Projects, ed. Joyce D. Kennedy, Michael Seidel, and Maximillian E. Novak (New York: AMS, 1999), pp. 46–57. On the history of compensation

140 Luke Wilson for personal injury in early English law see Luke Wilson, “Monetary Compensation for Injuries to the Body, A.D. 602–1697,” Money in the Age of Shakespeare: New Economic Essays on Renaissance Literature, ed. Linda Woodbridge (London: Palgrave, 2004), pp. 19–37. 14. The first recorded British life insurance policy was dated June 18, 1583, and was taken out by Richard Martin, citizen and alderman of London, on one William Gibbons; Trevor Sibbett, “Early Insurance and the Royal Exchange,” The Royal Exchange, ed. Ann Saunders (London: London Topographical Society, 1997), pp. 79–80. Though fire insurance was not developed on a wide scale until after 1666, it was available in England through the ancient guild system as early as the eleventh century, and cattle and crop insurance is at least as old; Karl H. van D’Elden, “The Development of the Insurance Concept and Insurance Law in the Middle Ages,” The Medieval Tradition of Natural Law, ed. Harold J. Johnson (Kalamazoo, MI: Medieval Institute Publications, 1987), p. 195. Life insurance seems to have been a more recent innovation, and as such deserves further study; see Malynes, Consuetudo, p. 149; Chris Lewin, “1848 and All That,” The Actuary November 1991, part 2, p. 35 (Order #s 113–19); William West, The First Part of Symbolaeography, Which May be Termed the Art, or description, of Instruments and Precedents (London, 1603), sig. Qq5–Qq5v (transcription of the full text of a life insurance policy dated May 14, 1596). 15. On early marine insurance in the Mediterranean region, see C. F. Trenerry, The Origin and Early History of Insurance, Including the Contract of Bottomry (London: P. S. King, 1926). J. S. Kepler, comparing the “Booke of Orders” with the Antwerp Ordinance of Assurances of 1563 and the Spanish Insurance Ordinance of 1556, concludes that “at the time the London orders were drafted there were more possibilities for reducing risks on the Royal Exchange than had been previously available on the lawful insurance markets of the two greatest ports in Europe, Antwerp and Seville”; “The Operating Potential of London Marine Insurance in the 1570’s: Some Evidence from ‘A Booke of Orders of Assurances within the Royall Exchange,’ ” Business History 17 (1975), 52. 16. In 1574–75 the Privy Council had directed that the Lord Mayor of London compile a list of regulations to govern insurance matters; BM Harleian MS 5103, fols. 158–85, “A Booke of Orders of Assurances within the Royall Exchange, London,” is probably a draft of this list, compiled between 1577 and 1585 (Kepler, “Operating Potential,” 46–47; the document is excerpted in Lewin, “1848”). Kepler argues that although “the provisions of the draft orders were [probably] neither generally known in any official form nor widely enforced” (47), they are likely to “represent the attitude not only of the drafters but of the London merchant community” (48). A patent of monopoly for brokering insurance policies was granted in 1576 (Kepler, “Operating Potential,” 45; Sibbet, “Early Insurance,” p. 78); this provided for the establishment of an Office of Assurances in the Royal Exchange. Violet Barbour notes that similar offices were not established in the major European cities in Holland, Germany, and France until later in the century; “Marine Risks and Insurance in the Seventeenth Century,” Journal of Economic and Business History 1 (1928–29) 572–73. The 1601 parliament enacted a statute providing for the regulated adjudication of insurance disputes; see 43 Eliz. c.12 in Anno xliii Reginæ Elizabethæ (London, 1601), sig. E3v–E4v.

Drama and Marine Insurance 141 17. Malynes, Consuetudo, p. 150. 18. J. H. Baker, “The Law Merchant and the Common Law Before 1700,” The Legal Profession and the Common Law (London: Hambledon, 1986), pp. 341–68. 19. W. J. Jones, “Elizabethan Marine Insurance: The Judicial Undergrowth,” Business History 2 (1960), 53–66. In 43 Eliz. c. 12 (Anno xliii sig. E3v–E4v) the Lord Chancellor was authorized to direct that such suits be heard by “the Judge of the Admiraltie for the time being, the Recorder of London for the time being, two Doctors of the Civil Lawe, & two common Lawyers, and eight grave and discreete Merchants, or to any five of them.” This group is to be authorized “to heare, examine, order and decree all and every such cause and causes concerning policies of Assurances, in a briefe and summarie course, as to their discretion shall seeme meete, without formalities of pleadings or proceedings.” They are to have the right to summon the parties to come before them, as well as to commit those refusing to jail. They are to meet at least once a week, “in the office of the Assurances, or in some other convenient publique place by them to be assigned” (sig. E4). Further, anyone dissatisfied with a judgment in this court may appeal to the Chancery; the Chancellor or Lord Keeper will have authority to reverse or affirm judgments coming out of this commission (sig. E4–E4v). On the limited efficacy of this court, however, see Barbour, “Marine Risks,” 575. 20. Malynes, Consuetudo, p. 467 (sig. Rr6). 21. On reinsurance see “Booke of Orders” #11, excerpted in Lewin, “1848,” part 1, p. 34. 22. Quoted in Jones, “Elizabethan Marine Insurance,” 60. 23. Malynes, Consuetudo, p. 149 (sig. O3). By the late seventeenth century, premiums for lost not lost policies could be as high as 40 percent (Charles Molloy, De Jure Maritimo et Navali: or, a Treatise of Affaires Maritime, And of Commerce [London, 1676], sig. Dd2); see also Barbour, “Marine Risks,” 592–93; Kepler, “Operating Potential,” 49. As one might expect, the potential for fraud was also high. Barbour (584–85) mentions Pepys’s dismay that he had missed an opportunity for such a fraud involving insurance on a ship “lost or not lost” when he had inside information about its safe arrival. 24. Lewin, “1848,” part 2, pp. 34, 35 (Order #120). 25. Lewin, “1848,” part 2, p. 35 (Order #96). 26. Othello, 1.3.1–44, ed. E. A. J. Honigmann (Walton-on-Thames: Thomas Nelson, 1997). On this scene see Altman, “Preposterous Conclusions.” 27. On “salutary anxiety” see Stephen Greenblatt, Shakespearean Negotiations (Berkeley, CA: University of California Press, 1988), pp. 142–46. This preservation of social or spiritual liability goes some distance toward redeeming generic insurance from Antonian objections. 28. On the obscenity of Antonio’s refusal to manage risk see Wilson, “Monetary Compensation,” pp. 32–33. 29. Bassanio and the risky business of the casket test do not provide as much of an outpost for the probable as might be supposed, though certainly this is one good place to look. It is true that Bassanio, perhaps with a little help from Portia, works out a plausible (and apparently correct) rationale for why the lead casket is a good choice. On the other hand it is striking that the inscription on that casket – “Who chooseth me, must give and hazard all he hath” (2.7.16) – is no more relevant to that casket than to the others, nor to

142 Luke Wilson Bassanio than to the other suitors (and certainly Bassanio does not risk his own money, as the others do, but rather Antonio’s); and Bassanio’s choice, while reasoning from the visible evidence, is described by the scroll within the lead casket as a choice “not by the view” (3.2.131) – in other words in spite of it, and, implicitly, in accordance instead with blind faith; Bassanio chooses on the basis at once of a subtle reading of the evidence and by disregarding it. This is something other than probabilistic reasoning. 30. Kepler, “Operating Potential,” 51.

9 Noises Off: Participatory Justice in 2 Henry VI Lorna Hutson

I want to begin with a murder inquiry. Actually, I want to begin by noticing how odd that term sounds in relation to the Renaissance: “a murder inquiry.” But something similar happens in act 3 of the play now known as part 2 of Henry VI (1590–92). The stage directions and speeches vary considerably between the Quarto (Q) and Folio (F), but it is clear that this murder sequence is conceived similarly in both versions. The central scene is act 3, scene 2. In F, this scene opens with the stage direction: Enter two or three, running over the stage from the murder of Duke Humphrey.1 In Q, a fuller stage direction tells us that we see first two men smothering Humphrey in his bed, and then the Duke of Suffolk coming toward them.2 We learn from the next exchange between the murderers and the Duke of Suffolk that Duke Humphrey is to appear to have died peacefully in his bed: “Have you laid fair the bed?” asks Suffolk (3.2.11) in F, and in Q he asks them to smooth down the bedclothes.3 The king and peers enter: this is the appointed time of Humphrey’s trial for trumped-up charges of treason, on which we saw him arrested and taken into custody in the previous scene. The king is just expressing the unlikely hope that proceedings against Humphrey will be in accordance with “true evidence, of good esteem” when the announcement is made: Humphrey has been found “Dead in his bed.” Confusion ensues: the king faints; his queen, Margaret, remonstrates with him for seeming to cast suspicion on her. Then the earls of Warwick and Salisbury enter, reporting a rumor that the commons are ready to commit violence, believing their beloved duke to have been murdered. The king instructs Warwick to “view” Humphrey’s body. Both F and Q indicate that the bed is now onstage. Warwick then vows solemnly that he believes Duke Humphrey to have been murdered, and when asked

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144 Lorna Hutson

for “instance,” replies with this speech: See how the blood is settled in his face. Oft have I seen a timely-parted ghost Of ashy semblance, meagre, pale and bloodless ... But see, his face is black and full of blood; His eyeballs further out than when he lived, Staring full ghastly like a strangled man; His hair upreared, his nostrils stretched with struggling, His hands abroad displayed, as one that grasped And tugged for life, and was by strength subdued. Look on the sheets: his hair, you see, is sticking; His well-proportioned beard made rough and rugged, Like to the summer’s corn by tempest lodged. It cannot be but he was murdered here. The least of all these signs were probable. (3.2.160–78)4 What is this speech doing here? Is it just the rhetorical equivalent of a cinematic close-up?5 It seems rather to display a type of forensic reasoning associated with the medical-legal hermeneutics and literary expectations of late nineteenth-century discourse. The model here is clearly a legal one. The word “view” spoken first by the king (“Enter his chamber, view his breathless corpse” [3.2.132]) and then by Warwick (“Come hither gracious sovereign, view this body” [3.2.149]) is charged with evidential significance as the technical term for the coroner’s inquest.6 The coroner was required to enquire into unexplained deaths super visum corporis, on the viewing of the corpse. “He shall see the dead bodie when he doth make the inquirie, or otherwise the inquirie is not good,” as Ferdinando Pulton wrote in De pace Regis.7 By the golden age of detective fiction, the 1920s and 1930s, the coroner’s inquest had become a familiar literary set-piece. Inquests are frequent, for example, in Agatha Christie’s novels, where medical experts are frequently wheeled on to give evidence about the case for poisoning, strangling, or whatever.8 While it is never the medical expert himself whose testimony moves the reader closer to the case’s solution, it remains obvious that his particular inferential expertise – assessing how long a poison might take to work, when it might have been administered, and what substance might have disguised the taste, for example – bears a resemblance to the inferential processes called into action by what Barthes termed the “hermeneutic code” at work in the classic realist novel.9 As Terence Cave, following

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Carlo Ginzburg, puts it: “The sign of recognition in drama and narrative fiction belongs, then, to the same mode of knowledge as . . . the clue, the fingerprint or the footprint and all the other tracks and traces that enable an individual to be identified, a criminal to be caught, a hidden event or state of affairs to be reconstructed.”10 This implicit resemblance between detection and the work of reading as deduction or inference from material signs underlies the prevalence of theories which relate the development of detective fiction in its classic phase (c.1880–1930) to the emergence of an evidential paradigm according to which the probability first of natural religion, and then of evolutionary biology, was held to inhere in the legibility of a connected “chain” of circumstances, or facts. As religious faith crumbled, popular post-Darwinian science offered the idea that geological and evolutionary narratives might be constructed from reading the signs and clues left in nature, while Arthur Conan Doyle’s literary detective and his heirs transferred the illusion of the infallibility of a methodologically similar medico-forensic deduction to the realm of narrative fiction.11 The coroner’s inquest, then, might be said to be an instance of the identification of narrative desire with scientifically informed deduction or inference from the material traces of a crime such as characterizes the emplotment of detective fiction and, to some extent, the realist novel. Yet, as Terence Cave and John Kerrigan have noted, the detective story also inherently resembles the classic Aristotelian “well-made” plot. Cave invokes the celebrated example of Sophocles’ Oedipus as “an instance of an ‘analytic’ plot, in which the crime is discovered progressively, yet always retrospectively.”12 However, while some sort of parallel is then implied between the Greek legal and scientific context for Sophocles’ and Aristotle’s interest in dramatic probability and the Victorian scientific and legal culture which makes a moral hero of medical forensics in Sherlock Holmes, those who draw the parallel define it in opposition to early modern English dramaturgy and legal process.13 Literary histories that map the emergence of novelistic narrative and the detective plot on to the development of evidential paradigms in eighteenth- and nineteenth-century science and penal law tend to oppose these paradigms to an earlier emphasis on “irrational” proof – proof by oath, for example.14 Social histories, likewise, oppose an irrational “reliance on providence to discover murder” which characterizes the narratives of crime in the sixteenth and seventeenth centuries to the “greater certainty in detection offered by advances in policing, evidence-gathering and medico-legal standards of proof” in criminal law and in narratives from the eighteenth century onward.15

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In contexts such as these, Warwick’s speech in 2 Henry VI appears something of a literary and legal-historical anomaly. On the one hand, this “rare and early example of forensic reasoning” is realistic enough to have provoked twentieth-century critics into arguing over whether the signs adduced by Warwick point to death by strangulation or suffocation.16 On the other, the speech’s engagement with the problematic relationship between evidential coherence and proof of guilt is not one which appeals, after the manner of the detective novel, to the dramatic audience’s hermeneutic desire, in that we already know that Humphrey has been murdered, and by whom. Moreover, while Warwick’s speech establishes the guilt of Suffolk and Cardinal Beaufort as open knowledge (they both die guilty of avenging deaths in subsequent scenes: 3.3 and 4.1), it crucially does not vindicate legal procedure itself from the arbitrariness and corruption with which it has been tainted since the play’s earliest scenes. For if 2 Henry VI may be characterized, as it has been by Emrys Jones, as a “commonwealth tragedy,” it is so in that it imagines the “commonwealth” primarily in terms of the administration of justice. From the start the play features “a striking large number of trial scenes, scenes which show justice being administered.”17 What is more, these trial scenes tend to cast doubt on the justice and effectiveness of their modes of proof. In 1.3, for example, the apprentice Peter Thump petitions the Duke of Suffolk (mistakenly thinking he is Duke Humphrey, Protector of the Realm) with an appeal against his master, Horner, for treasonably declaring the Duke of York to be the rightful heir to the throne. The subsequent trial by battle held to decide their cause in 2.3, though proposed by Duke Humphrey himself, does nothing to promote confidence in this kind of law. Horner, the worse for drink, is beaten and confesses treason with his dying breath (2.3.94). But York’s comment to the victorious apprentice (“Fellow, thank God and the good wine in thy master’s wame” [2.3.96–97]) gives voice to a skepticism about the divine origin of this proof of guilt, a skepticism exacerbated by the inseparability of Thump v. Horner from Suffolk’s opportunistic plot to discredit York and prevent his being regent in France (1.3.165–96).18 In the same scene in which Suffolk sees his opportunity in Thump’s charges of treason, we also learn of his plot to entrap Duke Humphrey’s wife, Dame Eleanor Cobham, into treasonably consulting a conjuror as to the fate of the king (1.3.89–92). When York arrests Dame Eleanor in the midst of these proceedings, he congratulates Buckingham on this “pretty plot” of legal entrapment (1.4.55). Eleanor’s subsequent warnings to her husband of his vulnerability to the same fate fail to shatter


his idealistic conviction that legal prosecution cannot take place without real cause for suspicion (“I must offend before I be attainted,” he replies to her warnings that he, too, may be “snared” [2.4.54, 59]), but by this stage in the play the sense of law as an elastic medium of aristocratic power is overwhelming. So it is no surprise to find Humphrey, in the first scene of act 3, harassed and baited by a chorus of accusers in Parliament, who ring the changes on manifestly trumped-up charges of treason, which conclude, sinisterly, with Suffolk’s charges of “mightier crimes” as yet undisclosed, from which, he threatens, Humphrey will not “easily purge” himself (3.1.104–38). Worse, there is even a disquieting sense, in this scene, that Humphrey himself, though opportunistically accused, is not entirely innocent of his enemies’ charges that he himself has abused the law in devising “strange tortures” for guilty offenders (3.1.122). The audience may recall at this point the episode, in 2.1, of Humphrey’s ingenious discovery and exposure of the fraudulent miracle of the man who claimed to have been cured of his blindness by St. Alban. Some critics have read this scene, derived from John Foxe, and in turn from Thomas More, as Shakespeare’s proof of Humphrey’s prudent government and excellence in judgment.19 I am persuaded, however, by Emrys Jones’s argument that Shakespeare’s adding the element of pretended lameness, and consequently altering Humphrey’s punishment of the beggar and his wife from being set in the stocks to being “whipped through every market-town / Till they come to Berwick” (2.1.154–55), makes us “find Gloucester’s severity distasteful,” heightening our awareness of “the element of cruelty and even sadism which may enter into the administration of justice.”20 The opening two acts of the play may be seen, then, as a sequence of intertwined plots of legal entrapment, plots of cynical manipulation of the law by the government’s “baddies” (primarily the Duke of Suffolk, Queen Margaret, and Cardinal Beaufort), which are only facilitated by the culpable blindness of the government’s “goodies” (Henry VI and Humphrey, Duke of Gloucester) to the vulnerability of law to being so abused. In the turning point of the play’s action – the scenes of Humphrey’s aborted trial, his secret murder, and the unleashing of popular anger in the aftermath of that murder – we have the “coroner’s inquest,” made by Warwick, with which I began. This speech, voicing Henry’s and the commons’ grief, anger, and suspicion at the news of Humphrey’s sudden death, articulates a certain emotional and ethical investment in the probative procedures of law. But this investment appears to be misplaced: subsequently, Warwick’s speech seems only to have served to precipitate an outbreak of popular rage against law itself.

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Epitomized in Dick the Butcher’s famous suggestion “let’s kill all the lawyers” (4.2.71), Shakespeare’s depiction of the Cade Rebellion of 1450 as a movement of murderous hostility directed specifically at the literate representatives of the law is notoriously unhistorical, composed as it is from accounts in Holinshed of the Peasant’s Revolt of 1381.21 While critical interpretations of Shakespeare’s depiction of the Cade Rebellion have ranged politically from Philip Brockbank’s Tillyardian appreciation of its imagery of disorder, through Stephen Greenblatt’s new historicist and Richard Wilson’s cultural materialist denunciations of its bourgeois brutality, to Annabel Patterson’s liberal critique of Wilson, few critics engage seriously with the question of why Shakespeare chose to depict the Cade Rebellion as specifically antilegal in impetus.22 A partial exception is Craig Bernthal, who argues that Shakespeare’s portrayal of Cade’s “legal carnival” might be interpreted “as an unmasking of the Tudor (and all other) judicial systems: a demonstration that judicial decisionmaking is really just the exercise of raw power cloaked in the rhetoric of equitable language.” Bernthal points out that the last two acts of the play parodically echo and invert the structure of the first two, proceeding as a series of trials, or scenes of judgment, in which Jack Cade pronounces sentence on the hapless representatives of the common law: the Clerk of Chatham (4.2.78–101), Lord Saye (4.7.22–111), and, in Q , the Sergeant-at-law (4.9.129–31).23 Cade, Bernthal goes on to argue, “is not that much different from any other judge. He merely shows the judicial emperor to have no clothes by mimicking judicial language whenever he renders an obviously unjust decision.”24 But if Cade’s rebellion, depicted thus, critiques by inversion the prevalent abuses of the law by the governing classes as represented in the play’s first two acts, what are the emotional and political effects of Warwick’s speech of forensic reasoning disclosing the probability of Humphrey’s murder? In what follows I propose that the answer to that question will give us a more nuanced account of the play’s presentation of the relations between governing classes and the commons than any of the current critical positions ranged along the spectrum from post-Tillyard celebrations of Shakespeare’s reimposition of order to cultural materialist denunciations of Shakespeare’s caricature of a 1590s London mob in the play’s “venomous fourth act.”25 I also propose that finding the answer requires us to look for the speech’s source in developments in the criminal law which provoked its nonprofessional official representatives – justices of the peace and coroners – into adapting the rhetorical resources of Roman forensic oratory to the changing participatory structures of inquest, jury trial, and pretrial examination.


As we have already seen, Warwick’s speech is, according to most literary histories of the rise of the detective novel and to histories of forensic pathology, somewhat anachronistic, especially in the context of English legal practice. J. D. Havard, for example, contrasts the retardedness of English medical forensics with the advanced state of the same discipline in Continental Europe, where expert medical testimony had been given and autopsies conducted in murder trials from the fourteenth century onward. In England medical testimony was scarcely ever given before the late seventeenth century (Havard notes that the mysterious death of Amy Robsart, the Earl of Leicester’s wife, for example, would have been properly investigated on the Continent). The first original book on the subject in English was not to appear until 1816, and rules governing the presentation of medical evidence were not formulated until 1953.26 But Havard’s account may mislead in its comparison of English and Continental practice. It is true, for example, that while the surgeon Thomas Brugis included some rules for “making Reports to a Magistrate, or Coroner’s Inquest” in his surgical Vade Mecum, or, a Companion for a Chyrugion (1651), these rules turn out to be taken from Ambroise Paré’s Rapports et du moyen d’embaumer les corps morts, previously translated into English in 1634.27 The significant difference, however, is between Brugis’s and Paré’s legal purposes: Brugis intends his guidelines to help surgeons reporting to a coroner’s inquest, that is, before a jury, not before the single presiding judge to whom Paré would expect his observations on the corpse to be expounded. This difference of practical orientation of the forensic discourse marks a more general distinction between developments in Continental and English criminal law in the sixteenth century. For the sixteenth century did see significant changes take place in the offices of the coroner and the justice of the peace, changes which would transform not so much their detective function per se as the nature of their interaction with ordinary people caught up in the sequence of events that took place after a body was found or suspicions of murder were aroused. As John Langbein has shown, the major Continental legal systems of the sixteenth century, including those of Spain, Italy, France, Germany, and Sweden, developed in ways which made an officer of the state, typically a judge, responsible for investigating and assembling evidence upon which to rest rational judgment. To facilitate justice and limit this public officer’s discretion in evaluating evidence, these legal systems typically adapted from canon law a codification of proofs which assigned gradations of proof certain arithmetical values and enabled the judge to proceed by calculating degrees of suspicion.28 The English secular system of criminal justice, however, did not adapt

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the Roman-canon inquisitorial system of heresy trial to criminal justice. In England there was no professional judge, calculating proofs arithmetically in secret, and administering torture to obtain a confession.29 Rather, the nonprofessional officials of justice – coroner, constable, justice of the peace – continued to be enlisted as aids in an accusatorial system in which victims or friends of victims raised the hue and cry, and took the initiative in the detection and examination of suspects.30 However, there were changes brought about by the Reformation which made collaboration between local people and the nonprofessional officials of the common law more rather than less likely. In the first place – an enormous change – annual lay confession, which had permitted secret penance for secret homicide, was abolished.31 Moreover, as the legal privileges of the clergy and the ecclesiastical jurisdiction itself came under attack, opposition to the privilege of sanctuary grew more vociferous, and in 1540 the privilege was abolished in cases of murder, rape, burglary, robbery, and arson.32 This abolition may be seen as part of that general reorientation of the conceptual relationship between earthly and divine penal systems resulting from the Reformation. Administratively, it meant that where the medieval coroner had been very largely occupied in hearing the confessions of felons who had sought sanctuary and wanted to abjure the realm, the sixteenth-century coroner became exclusively concerned with the holding of inquests super visum corporis.33 The anonymous fifteenth-century preacher who composed the series of Lenten and Easter sermons known as Jacob’s Well assumed, in his allegory of the soul as a common law felon, that it made sense to encourage parishioners to make their annual confession by allegorizing the priest offering absolution and penance as the coroner offering abjuration to confessing felons who have spent forty days in sanctuary: whan thou art onys schreuyn, thou fallyst agen after thi schryfte in dedly synne, thou art agen the kynges feloun of heuene, for thou hast slayn thi soule. the xij. of the quest . . . han endygted the. therfore fle to holy cherch, that is, to the sacrament of penaunce, & kepe the there xl. dayes in lentyn of thi penaunce. . . . And thanne the coronere, the preest, schal take the a cros of penauns in thin handys, that is, in thi werkys, & he schal settyn the in the kynges weye of heuene, that is, in the x. commaundementys.34 This allegory, with its equation of confessional absolution and penitential satisfaction for sin with the coroner’s hearing of a felon’s confession


and abjuration of a the realm, gives some indication of the relative lack of interest in the evidence-gathering role of the coroner before the Reformation, as well as some sense of the importance of annual lay confession in adjudication of sins which were also crimes. With the vanishing of annual lay confession as a complement to the criminal law, the mid-sixteenth century saw changes not only in the role of the coroner, but in his power relative to the justice of the peace, to whom he was made subordinate.35 And not long after this a significant transformation of the office of the justice of the peace was brought about by the so-called Bail and Committal statutes of 1555 and 1556, respectively, which required, for the first time, that justices of the peace should take written examinations of suspects, and bind witnesses to give evidence at trial, before granting bail.36 The implications of this last procedural change have been interpreted in different ways. Some historians have thought it turned the justice of the peace into the equivalent of the Continental professional prosecutor, or, as T. F. T. Plucknett put it, influentially “something between a detective and a ‘juge d’instruction.’ ”37 The implications of Plucknett’s formulation have been developed by Foucauldian literary critics who have seen a rise of official control of operations of judicial discovery. Elizabeth Hanson, for example, writes that after the Marian statutes, “the production of an account of the crime was now supposed to be in the hands of the investigating justice rather than the jury.”38 John Langbein, however, has persuasively shown how the justice’s examination, though it did not have evidential status in itself (that is, it did not correspond to the written deposition of a witness at an inquisitorial trial) helped to breathe a new lease of life into the declining institution of the sworn inquest or jury, so that they ceased to be ethical witnesses and became evaluators of orally presented evidence.39 These two interpretations lead in radically different directions. In Plucknett’s view, as Hanson develops it, the justice becomes the authority figure, whose elite knowledge and methods grant him the privilege of deciding what is to be the official truth. Langbein’s argument, however, suggests that the oral, public trial remains crucial to the verdict, and that the justice’s role in taking pretrial examinations is, for a time at least, ancillary and enabling to the community’s own detective work and to the verdict which is finally delivered. I want to argue for the latter view, showing how the participation of the people in the justice system was not destroyed but enhanced by the increasingly evidentiary orientation of the offices of justices and coroners. At first glance, it seems as though Hanson’s view chimes rather precisely with Jack Cade’s own identification of the literate justice of the

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peace as oppressor of an illiterate people. In his mock trial of Lord Saye, Jack brings against him exactly this charge: Thou hast appointed justices of peace to call poor men before them about matters they were not able to answer. Moreover, thou hast put them in prison, and because they could not read, thou hast hanged them, when indeed only for that cause they have been most worthy to live. (4.7.38–43)40 If we accept the Foucauldian critical view, Jack Cade’s charge is absolutely valid. The introduction of written, pretrial examinations gives all the control and advantage to the literate (though Jack’s criticism is probably directed no less against the privilege of clergy, which, in its newly secularized form, enabled literate first-time offenders to escape the gallows). This, then, would explain why Shakespeare borrowed elements of the antiliterate and antilegal complaints of the Peasants’ Revolt of 1381 in his depiction of the quite different Cade Rebellion of 1450. But this thesis would not be able to account for the intense emotion with which the murder of Duke Humphrey is surrounded, for it would require that we see the Cade Rebellion as simply a logical consequence of the reduction of judicial procedure, from the very outset of the play, to a cynical manipulation of power by the literate and legally learned. If Cade, as Bernthal argues, does actually expose judicial decision making as raw power cloaked in the rhetoric of equity, what does this exposure say about a justice system that is not reducible to judicial decision making? For the participatory justice system in which the coroner’s inquest functioned and into which the justice’s pretrial examination was inserted operated in some tension with judicial power, in that it was the jury’s verdict on the facts that determined the judge’s sentence. Thus the pretrial examination, in which the justice took down witnesses’ various accounts of the facts, did not produce the equivalent of the written deposition of a witness in a Continental inquisitorial trial, nor did it preempt the oral jury trial. The evaluation of evidence was the preserve of the jury in an oral situation, and Langbein has plausibly argued that the institution of pretrial examinations helped to breathe new life into the declining institution of the self-informing jury or inquest of neighbors by organizing evidence before the trial, and turning the jurors into evaluators of evidence. Moreover, the justice and the coroner did not initiate criminal proceedings. Their help was, rather, enlisted by neighbors who had seen something suspicious or by victims of theft or violent assault.


The work of Cynthia Herrup and, more recently, Malcolm Gaskill clearly shows that the interactions between ordinary people and the formal representatives of the law – constables, coroners, and magistrates – cannot be understood simply in class-confrontational terms.41 Herrup offers countless examples of neighbors doing the detective work, and bringing evidence to the justice.42 Gaskill, likewise, documents the late sixteenth to late seventeenth century in England as a transitional period in terms of lay participation in the work of detection and bringing suspects before the law. By about 1800, he writes, the professionalization of medical forensics meant that popular testimony and detective work “no longer carried as much weight either when JPs and coroners first heard it at pretrial stage, or most especially when they forwarded it as evidence in a court of law.”43 But for the period he documents, he offers a wealth of instances in which ordinary people – neighbors, kin, and friends of victims – actively engaged in what he calls “popular forensic techniques” in order to gather evidence and present it as convincingly as possible before the coroner or justice. Gaskill, like Herrup, gives us examples of men and women exhuming bodies or noticing suspicious marks on bodies they were preparing for burial, measuring footprints and skeletons, and reporting the evidence of rumor, of dreams and apparitions. This is clearly not an inquisitorial model, nor does it bear any resemblance to the “conditioned passivity” with which we, nowadays, allow professional authorities to step in and take over when murder enters our lives. Rather, it seems, the ordinary parishioners of the sixteenth and seventeenth centuries made use, to the extent that they could, of the scope for redress afforded by official procedures, deploying their own forensic strategies within the available boundaries.44 Gaskill’s findings expose the positivistic bias of those historians who assume that the lack of any law of evidence in this period points to a complete disregard for the evaluation of likelihood, probability, and coherence in narratives of the facts, whether at pretrial stage or before the jury. In fact, as Gaskill shows, awareness of the forensic or evidential significance of words and deeds is popularly pervasive, and the awareness itself conditions behavior. People act, speak, and report the actions and speech of others with the evidential significance of their words and deeds in mind. Murder victims in both manuscript and print accounts tend to announce their own impending deaths, to cry out “murder” or “I am slain,” or to insist that they did not strike the first blow. But the apparent nonnaturalism of these utterances may be explained by awareness, whether in the victim or in the witness reporting events, of the

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evidential status of “last dying words.” The words themselves are forensically oriented to enlist the help of a justice in bringing about a trial.45 The work of Gaskill and Herrup also enables us to see that the persistence of a rhetoric of providential disclosure, of the community as merely an agent of divine justice, along with frequent recourse to socalled irrational proofs such as cruentation, or the belief that the victim’s body will bleed afresh in the presence of the murderer, are not in any way incompatible with the development of what I am trying to identify as “forensic” or “detective” habits of mind among ordinary people. Gaskill gives numerous examples of manuscript information and printed accounts in which the bleeding of the corpse is one among many proofs alleged against a suspect; it tends to confirm other causes of suspicion, rather than acting as a divine proof all on its own. In one printed account of a murder which took place in 1656, of which records also exist in manuscript, we can see a very vivid example of how the previous century or so since the Marian Bail and Committal statutes had produced habits of popular collaboration with the agents of official justice. As a result of the increasingly evidentiary orientation of the work of coroners and justices of the peace, ordinary people were manifesting all the forensic, detective, and narrative skills – the skills of “putting together a case” before examination by a justice – that I have been referring to. The case was that of the murder of John Neil, a clockmaker, stationer, and merchant of Glasgow, who was found by the road between Waltham and Theobalds by laboring men going to work at about six in the morning of February 26, 1656.46 The body “was brought under the examination of a Coroners Jury,” but they could not give a verdict, “wanting evidence in the case.”47 However, Mr. Neil’s London friends, who had been expecting him to arrive presently in London, were concerned at his nonappearance, and, hearing that there had been a body found near Waltham, went there and, to their distress, found that the stabbed and lifeless body was indeed their friend’s. About the same time, the innkeeper who had given Mr. Neil lodging the night before his death also heard and came to see whether the man killed and the man he had lodged were one and the same. His intention was to inform a justice of the peace if it were the case. But before he could see the corpse or meet with a justice, Mr. Neil’s friends met with him, (whom indeed they thought as yet they had reason to suspect) and caused him to go along with them to see the dead body, which he did, and said he knew him well: then they caused him to touch it, (as is usual in cases of suspition) but there appeared no


Symptom of guilt in him: and for further proof of his innocence, he became the key (in the hand of God) wherewith the whole truth was opened: for going with Mr Neils friends to the Justice, he gave such a lively description of the party that lay with Mr Neil at his house, that one of them had a sudden persuasion wrought at his heart, that he knew the man, such a one being lately come to London from Scotland, having store of money, and good clothes: which persuasion of his, he immediately imparted to some of the rest.48 Here we see both the recourse to an irrational mode of proof – the innkeeper is required by Mr. Neil’s friends to prove his innocence by touching the body – and the deployment of a rhetoric of providential consequence. But neither the ordeal nor the providential emplotment obviates the salient fact that Mr. Neil’s friends themselves engage in the detective work that will uncover his murderer. Once the innkeeper has described Mr. Neil’s traveling companion, and one of Neil’s friends recalls him and where he lives in London, the rest “procured a warrant, and a Constable to execute it” and searched the Westminster lodgings of the suspected party, where they found “divers papers belonging to Mr. Neil,” which they “sealed up for the present, and carried him to the Gatehouse, till . . . they might examine him before a Justice of the Peace.” The justice of the peace in this case was Roger Hill (d. 1667), whose examination notes are preserved in BL Add MS 46, 500. Hill itemized each piece of evidence, following each item with the word “testi” or “witness,” and a name following to testify to its authenticity and significance. Thus, for example, Mr. Neil’s notebooks were found on Dick’s person when he was apprehended, and the justice has Mr. Thomas Underwood, stationer of London, testify to his knowledge of these notebooks, which he identified as books of Mr. Neil’s riding expenses on his commercial trips to London.49 Although the author of the printed pamphlet affirmed the innkeeper to be the key to the truth “in the hand of God,” the hands of Mr. Neil’s London friends might equally be said to have been the agents of disclosure, especially in the dexterity with which they made use of the procedures of the constable’s warrant, and the deliberation with which they prepared the evidence before they took it to the justice. It is worth pointing out that what Gaskill identifies as a traditional reliance on “providence to discover murder and the voice of the people to prove it” (which he says is displaced by professional policing) does not look so very traditional if one looks back to the practices of taking sanctuary and abjuring the realm or of doing private penance for homicide

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confessed before the priest, both of which were fifteenth-century alternatives to facing trial at the common law.50 In other words, the “voice of the people” as one which, with official cooperation, discovers the truth of murder is less traditional than it is the outcome of new developments in justicing and jury trial in the sixteenth century. If we return, at this point, to Warwick’s speech over the corpse of Duke Humphrey, it becomes apparent that it belongs, conceptually, to the judicial culture of the pretrial examination of the later sixteenth century. It draws upon the very same classical discussions of forensic rhetoric as did the pretrial examinations taken by justices of the peace. In 1592 the justice William Lambarde enlarged the 1592 edition of his Eirenarcha, or the Office of Justices of the Peace to include the adaptation of instructions taken from the discussion in Cicero’s forensic rhetoric, the De Inventione, of how to argue the case in a “conjectural issue” (constitutio coniecturalis).51 For example, Lambarde equates the justice’s examination and taking of information from witnesses with the Ciceronian constitutio coniecturalis: “The examination of an offence, is a conjectural state of a cause,” he writes. He then arranges Cicero’s classification of arguments of “suspicion” into a table. Lambarde divides the material for proving the case into matter “Precedent,” “Present,” and “Subsequent.” Precedent includes motive, although the word as such is not given: “The cause inducing him to undertake it, which is either . . . 1) Forcible (or impulsive) . . . 2) Persuasive.”52 “Subsequent” includes the so-called inartificial or entechnic proofs of rumor and witnesses (that is, proofs not rhetorically “invented” by the technical skill of the orator’s argument, but merely given with the case), as well as the behavior of the suspect and bodily signs, and traces at the scene of the crime such as the hair sticking on Gloucester’s sheets. In plotting Warwick’s speech and action, Shakespeare has indisputably drawn on this early modern conjunction of classical forensic rhetoric and vernacular legal culture. Warwick begins with Lambarde’s last category, “subsequent matter,” and argues from signs on the dead body that Gloucester was murdered. Suffolk objects with an implied argument from Lambarde’s category of “present matter,” the argument of “Place, convenient and meete for the act – and his being there”: “Why Warwick, who should do the Duke to death? / Myself and Beaufort had him in protection” (3.2.179–80). But Warwick replies incisively with the category of motive (which Lambarde labels “The cause inducing him to undertake it”): “But both of you were vowed Duke Humphrey’s foes” (3.2.182). Margaret retaliates: “Then you belike suspect these noblemen . . . ?” and Warwick delivers a highly


rhetorical and climactic speech: Who finds the heifer dead and bleeding fresh, And sees fast by a butcher with an axe, But will suspect ’twas he that made the slaughter? ... Although the kite soar with unbloodied beak? Even so suspicious is this tragedy. (3.2.188–94)53 Warwick’s speech is finely ambiguous. One critic notes of his earlier speech that in terms of modern forensic pathology “all the signs triumphantly listed by Warwick happen to be non-specific, that is, they do not point unequivocally to a violent death.”54 But this is precisely the point. The images in Warwick’s “bleeding heifer” speech – the bleeding body, the proximity of an enemy with a weapon – were commonplace, textbook examples in forensic rhetoric of signs which almost seem to come under the category of entechnic or inartificial proofs because they are not invented by the orator, but come with the case, like witnesses and rumor. These kinds of signs – bloodstained clothing, a cry, discoloration of the skin – seem, says Quintilian, to be “instruments,” like witnesses or documents.55 But they are to be classified as technical proofs, he goes on, precisely because they are uncertain and may be argued either way: they are in Greek eikota, which in Latin Quintilian gives as signa, indicia, or vestigia (signs, indications, or traces), which are that from which something else is inferred.56 Or, as Cicero puts it, and Lambarde after him, they are conjectures of suspicion – in the exemplary case that Cicero gives (from which Lambarde has abstracted his table) the blood-stained sword has been planted on the suspect, vividly demonstrating that it is not an irrefutable proof.57 Thus it is, of course, that Lambarde’s category of “subsequent matter,” signs exhibited by the dead body, also belongs to the class of the eikota, or merely probable sign. So it is not that Warwick’s earlier “viewing” speech establishes demonstrably that Humphrey has been violently done to death, but that it performs discursively – and with considerable passion – the inferential reasoning that may persuade a jury of this probability. How, then, does the forensic structure of Warwick’s speech fit into the play’s concern with justice, and with modes of proof as a whole? I alluded earlier to Terence Cave’s discussion, in Recognitions, of the model of the unfolding of the narrative or dramatic plot as one turning on inferential processes, on a kind of detective work. The anxiety raised

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by such plots, he argues, is precisely that the irrefutable proof might turn out to be a false inference, that the paralogism or false deduction that enables the poet to achieve verisimilitude, and engage us in the plot (that is, the misleading or ambiguous clues that sustain our hermeneutic desire) might be at work in the plot’s ethics, causing us as readers to hang an innocent man, so to speak, or embrace the impostor as the rightful heir. Cave also observes that Latin comedy based on Menander’s Greek models embraces this anxiety as a source of comic pleasure. In Plautus, for example, Cave says, “the parallel between the characters’ plot (fallacia) and the author’s plot (fabula) is repeatedly made explicit.”58 In the paradigm of a tragedy, such as Oedipus, the initial error or hamartia is gradually exposed, achieving the effect both of verisimilitude and of something like the retrospective “correct” reading of events through the unfolding of evidence that we get in a detective story. In Latin comedy, however, the same kind of model exposes and even delights in the inherent dependence of the fiction’s credibility on the scandal (as Cave would put it) of a deliberately plotted initial deception, a false or possibly false reading of the evidence. The young Shakespeare writing The First Part of the Contention (as 2 Henry VI was first known) had been immersed in the plays of Plautus and Terence, whose plots, as Adele Scafuro has shown, also follow their Greek models in representing a social life as, above all, popularly litigious.59 The characters in Greek and Roman comedy engage tirelessly in a variety of forensic strategies for morally dubious, though ultimately vindicated, ends. In Terence’s Phormio, for example, the eponymous parasite helps a young Athenian named Antipho to marry an orphaned cittern player by fraudulently exploiting the Athenian law according to which orphans are to be married to their male next of kin. Phormio fakes a writ against Antipho for breaking this law, and explains to Antipho’s outraged father, who has been away on business, that his son was forced by the jury’s decision in the case against him to marry this penniless girl. Poetic justice is finally served by the revelation that Antipho’s friend’s father, also away on business, had long ago contracted a bigamous marriage, of which Antipho’s beloved Phanium was the issue (so the love match turns out to be quite respectable). The rather anxious point for Reformation and counter-Reformation civic humanists, however, was that the parallel between Phormio’s fallacia and the comic resolution of Terence’s fabula could look very like a complicity between poetics and the arbitrary manipulation of the law for immoral purposes. These humanists, as is well known, therefore attempted to distance their reformed fabulae from the characters’ legal frauds by refiguring the


fabula as an exposure of the fraudulent manipulation of evidence when they wrote dramas in the subgenre known as “Christian Terence.” In The Origins of Shakespeare, Emrys Jones suggested a context for 2 Henry VI’s civic humanist concerns, and specifically its concern with civil war, in the sense of crisis after the Babington plot, and in the reprinting of plays such as Gorboduc in 1590, or George Gascoigne’s and Francis Kinwelmarsh’s tragedy Jocasta, reprinted in Gascoigne’s works in 1587. In terms of plotting, however, it needs to be pointed out that Shakespeare’s management of these political materials in 2 Henry VI owes more to the reformed intrigues of “Christian Terence” models than has been realized. In one such play, George Gascoigne’s Glasse of Government (1575), a fallacia or process of false inference worthy of Phormio himself is perpetrated by a pimp early on in act 2 in order to enable two promising young students to take time from their studies and visit a nearby prostitute. The pimp, Eccho, tells the students’ schoolmaster that they are kin to the city’s highest magistrate, the Markgrave, and that the Markgrave has sent for them. In act 4 of the play, after the students have exploited this excuse to the full, the Markgrave apprehends both pimp and prostitute and wants to imprison them for criminal offences, but can find no proof of their crimes. “[T]hough I desire . . . to see them condingly [sic] corrected,” he says, “yet with out proofe of some offence I should therein commit a wrong.” At this point in the play, the schoolmaster inadvertently reveals Eccho’s story of his students’ supposed kinship to the magistrate, exposing the pimp’s criminal deception. At this stage in the plot, then, the fallacia that was the intrigue itself has turned into evidence against its inventor: the Markgrave confidently proceeds to punish.60 Just as in Gascoigne’s rather schematic plot, so in Shakespeare’s far more skillful and complex one, intrigues and fraudulent manipulations of the law characterize the first two acts. In other words, Shakespeare has adapted the Plautine or Terentian model of forensic intrigue as a process in which the villains are engaged.61 But where an earlier generation of civic humanist writers, such as Gascoigne, simply turned the errors of comic intrigue into deceptions visible to and punishable by a “good governor,” Shakespeare presents his good governors – Henry VI and Humphrey, Duke of Gloucester – as exhibiting far too simple a faith in the transparency of evidential processes, and in the inability of justice to be arbitrarily manipulated. By act 3, so many corrupt or dubious trials and judgments have passed for truth and justice that Henry’s continuing faith in the immanence of God in judicial process appears naïve in the extreme; the law appears indeed to be nothing but aristocratic power

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cloaked in procedure. Our sense that this is so reaches its climax after the murder of Duke Humphrey with the guilty Queen Margaret’s attempt to deflect suspicion by remonstrating with her husband for showing more concern for the dead duke than for herself (3.2.73–121). “Was I for this,” she exclaims to Henry, nigh wrecked upon the sea, And twice by awkward winds from England’s bank Drove back again unto my native clime?… Yet Aeolus would not be a murderer, But left that hateful office unto thee. The petty vaulting sea refused to drown me, Knowing that thou wouldst have me drowned on shore With tears as salt as sea through thy unkindness. (3.2.82–96) This speech continues to play with the personification of the sea as eschewing the murder that her husband will not stick to commit. In its elaborate ingenuity, it is clearly modeled on the most famous and most imitated epistle of Ovid’s Heroides, Dido to Aeneas. Ovid’s Heroides were the most obvious model for representing a kind of female speech that gave the effect of being both impassioned and forensically or legally manipulative.62 Here the Ovidian subtext signals that Queen Margaret is attempting to arrogate to herself the position of plaintiff, of the victim of romantic deception and breach of marital promise. This speech, then, is a last-ditch attempt at continuing the corrupt uses of legal procedure that through the preceding two acts have characterized Humphrey’s enemies. Margaret’s excruciatingly hypocritical performance forms a climax of this kind of fraudulent legality. It is at the end of Margaret’s speech, when hypocritical manipulations of the law can apparently go no further, that we have, in F, the crucial stage direction: Noise within. Enter Warwick, and many commons.63 And Warwick speaks: It is reported, mighty sovereign, That good Duke Humphrey traitorously is murdered By Suffolk and the Cardinal Beaufort’s means. The commons, like an angry hive of bees, That want their leader, scatter up and down And care not who they sting in their revenge. Myself have calmed their spleenful mutiny, Until they hear the order of his death. (3.2.122–29)


Warwick’s passive voice, “it is reported,” subtly reconfigures, and gives forensic weight to, what in his source (Hall’s Chronicle) has the claustrophobic, Tacitean feel of rumor in a world of power politics that dare not speak out. Hall reports how Duke Humphrey was found dead in his bed the night after his imprisonment at the Parliament of Bury in 1447. His body, says Hall, was shewed the lordes and commons, as though he had died of a palsy or empostome: but all indifferent persons well knewe, that he died of no natural death but of some violent force: some judged him to be strangled: some affirm that a hote spitte was put in at his foundament: other write, that he was stiffeled or smoldered between two feather beds.64 In Hall’s account, the “viewing” of the body is part of the cover-up, and rumor is, as a result, the only possible mode of political discourse. But in Shakespeare’s play, the same uncertainty as to exactly what violence was used on Humphrey – smothering or strangulation – takes a new form, performing, in Warwick’s speech, the very act of offering the probabilities as such – as evidence, as indeterminate or conjectural signs arousing suspicion – to the commons in response to their request to “hear the order of his death.”65 Warwick’s speech cuts so powerfully through Margaret’s specious forensic rhetoric because it creates, by its mode of address, the commons as an audience capable of judging the probability of the facts. It turns rumor – the humming of the commons – into a forensic scenario, and in using the word “forensic” here, I wish to invoke its etymological connection with the Roman forum, the place of public and political accountability. The offstage presence of the commons, signaled by F’s stage direction, “Noyse within,” is thus powerfully effective. As in the English criminal justice system, it is they who initiate the call for an investigation, and in responding to that call, Warwick enfolds us, the audience, into his response to the commons. We feel included because the death of Humphrey seems outrageous to us, too. Warwick’s simile of the commons as an “angry hive of bees,” while intimating the threat of their unconstrained passion, nevertheless recalls, as critics have noted, the traditional simile of the res publica as a hive of bees common to sixteenthcentury political treatises. It thus identifies the noise of the people with the “commonwealth” understood as the public interest, and public accountability.66 In response to the suspicion Warwick’s investigation

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arouses, the commons send word, by the Duke of Salisbury, to the king, petitioning him to banish Suffolk. Salisbury’s eloquent articulation of the people’s demand for the banishment of Suffolk has been analyzed as an example of Shakespeares’s qualified approval of popular protest, in spite of the extreme instability of the political situation and the everpresent threat of violence offstage.67 Violence, of course, does break out, a violence which, in its memorably brutal degradation of the representatives of the law, seems shaped to avenge the all too evident judicial corruption of the governing classes. However, in the moments before the outbreak of this violence, the appeal to the intelligent judgment and moral passion of the commons implied in Warwick’s forensic inquiry offers a powerfully utopian image of participatory justice as a form of the commons’ political agency.

Notes 1. Act, scene, and line references from the Oxford World’s Classics edition of Henry VI, Part Two, ed. Roger Warren (Oxford: Oxford University Press, 2003) will be given in the text. The question of the relation between Quarto (Q) and Folio (F) texts has been the subject of much debate. Peter Alexander first argued the case for the Quarto as a memorial reconstruction in 1929 (Shakespeare’s “Henry VI” and “Richard III” [Cambridge: Cambridge University Press, 1929]). Stephen Urkowitz attacked Alexander’s conclusions, arguing for both texts as Shakespearean alternatives. See Urkowitz, “ ‘If I mistake in those foundations which I build upon’: Peter Alexander’s textual analysis of Henry VI Parts 2 and 3,” English Literary Renaissance 18 (1988), 230–56. Roger Warren has most recently made a measured and persuasive case for regarding F as an authorial and “literary” text, in which the action is throughout fully motivated, and Q as a reported text deriving from a performance; see Warren, “The Quarto and Folio Texts of 2 Henry VI: A Reconsideration,” The Review of English Studies n.s. 51 (2000), 194–207. 2. The First Part of the Contention (1594), ed. William Montgomery, Malone Society Reprints (Oxford: Oxford University Press, 1985), p. 35. Claire Saunders, “ ‘Dead in his bed’: Shakespeare’s Staging of the Death of the Duke of Gloucester in 2 Henry VI,” Review of English Studies n.s. 36 (1985), 19–34, observes that the staging of the smothering contradicts Warwick’s adducing of signs of strangulation in F, arguing that F represents Shakespeare’s intended staging, while Q is a record of a popular adaptation. 3. First Part of the Contention, p. 35. 4. In the Quarto, the speech is much shorter, but its medico-forensic quality is no less clear; see First Part of the Contention, p. 37. 5. See J. P. Brockbank, “The Frame of Disorder: Henry VI,” in Early Shakespeare, Stratford upon Avon Studies, vol. 3 (London: Edward Arnold, 1961), pp. 73–99, 84. 6. Andrew S. Cairncross glosses “view” as “the usual term in the direction to a coroner’s jury”; see Cairncross, ed., The Second Part of King Henry VI


7. 8. 9. 10.

11.

12.

13. 14. 15. 16.

17. 18. 19. 20. 21. 22.

23.

(London: Methuen, 1957), p. 85. See also R. F. Hunniset, The Medieval Coroner (Cambridge: The University Press, 1961), p. 19. Ferdinando Pulton, De pace Regis et regni (London, 1615), fol. 236v. Agatha Christie, The Mysterious Affair at Styles (1920; rpt. London: Harper Collins, 2001), p. 129. Roland Barthes, S/Z, trans. Richard Miller (New York: Farrar, Straus and Giroux, 1974), p. 19. Terence Cave, Recognitions: A Study in Poetics (Oxford: Clarendon Press, 1988), pp. 250–51. Cave develops the argument of Carlo Ginzburg, “Clues: Roots of an Evidential Paradigm,” in Myths, Emblems, Clues, trans. John Tedeschi and Anne Tedeschi (London: Hutchinson Radius, 1990), pp. 96–125. See also Peter Brooks, Reading for the Plot: Design and Intention in Narrative (New York: Random House, 1984), p. 18. See, on the novel, Alexander Welsh, Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore, MD, and London: Johns Hopkins University Press, 1992). On detective fiction, see Régis Messiac, Le “Detective Novel” et l’influence de la pensée scientifique (Paris, 1929); Ronald R. Thomas, Detective Fiction and the Rise of Forensic Science (Cambridge: Cambridge University Press, 1999); Lawrence Frank, Victorian Detective Fiction and the Nature of Evidence: The Scientific Investigations of Poe, Dickens and Doyle (London: Palgrave Macmillan, 2003). Cave, Recognitions, p. 232. See also John Kerrigan, “Sophocles in Baker Street,” in Revenge Tragedy: Aeschylus to Armageddon (Oxford: Clarendon Press, 1996), pp. 59–87. Kerrigan, Revenge Tragedy, pp. 27, 79. Welsh, Strong Representations, pp. 10–11. See Malcolm Gaskill, Crimes and Mentalities in Early Modern England (Cambridge: Cambridge University Press, 2000), p. 203. David Thatcher, “Cover-up: The Murder of Gloucester in 2 Henry VI,” The Shakespeare Newsletter 50 (2000–01), 105–16, 114. Saunders, “Dead in his bed,” imagines Shakespeare deciding how the killing should take place offstage: “Shakespeare, on the evidence of the Folio 2 Henry VI, opted for a simple strangulation, off stage” (23). Emrys Jones, The Origins of Shakespeare, (Oxford: Clarendon Press, 1977), p. 172. For an analysis of this episode, see Craig Bernthal, “Treason in the Family: The Trial of Thumpe v. Horner,” Shakespeare Quarterly 42:1 (1991), 44–54. See for example E. Pearlman, “The Duke and the Beggar in Shakespeare’s 2 Henry VI,” Criticism 41 (1999), 309–21. Jones, Origins of Shakespeare, p. 175. See Henry VI, Part Two, ed. Warren, Appendix B, p. 301. See Brockbank, “The Frame of Disorder,” 73–99; Richard Wilson, “ ‘A Mingled Yarn’: Shakespeare and the Clothworkers,” Literature and History 12 (1986), 164–80; Stephen Greenblatt, “Murdering Peasants: Status, Genre, and the Representation of Rebellion,” in Representing the English Renaissance, ed. Stephen Greenblatt (Berkeley, CA: University of California Press, 1988), pp. 1–29; Annabel Patterson, Shakespeare and the Popular Voice (Oxford: Basil Blackwell, 1989), pp. 32–51. First Part of the Contention, pp. 52–53. See Craig A. Bernthal, “Jack Cade’s Legal Carnival,” Studies in English Literature 42:2 (Spring 2002), 266–67.

164 Lorna Hutson 24. Bernthal, “Jack Cade,” esp. 271. 25. Wilson, “Shakespeare and the Clothworkers,” p. 167. 26. J. D. Havard, The Detection of Secret Homicide: A Study of the Medico-Legal System of Investigation of Sudden and Unexplained Deaths (London: Macmillan, 1960). 27. See Thomas Brugis, Vade Mecum, or, a Companion for a Chyrugion, 6th ed. (London, 1674), pp. 288–95; Jenny Ward, “Brugis, Thomas (b. in or before 1620, d. in or after 1651),” Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004). 28. See John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, MA: Harvard University Press, 1974), pp. 130–34. 29. Although for a transitory period torture was used in political investigations; see Elizabeth Hanson, “Torture and Truth in Renaissance England,” Representations 34 (Spring 1991), 53–84. 30. See Cynthia Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth Century England (Cambridge: Cambridge University Press, 1987), p. 70; Gaskill, Crimes and Mentalities, p. 239. 31. For the permitting of secret penance and restitution for secretly confessed homicide, see for example Speculum Sacerdotale, ed. Edward H. Weatherly (London: Early English Text Society, 1936), pp. 79–80; William Lyndwood, Constitutions prouincialles and of Otho and Octhobone Translated in to Englyshe (London: Robert Redman, 1534), fol. 95v. 32. J. H. Baker, Reports of Sir John Spelman, vol. 2 (London: Selden Society, 1978), pp. 342–46. See also Baker, The Oxford History of the Laws of England: Volume VI 1483–1558 (Oxford: Oxford University Press, 2003), pp. 540–52. 33. Among the seventy-seven cases and notes recorded as “pleas of the crown” by Sir John Spelman (c.1480–1546), at least fifteen concern sanctuary and abjuration, which gives some indication of the impact that the abolition of sanctuary must have had on criminal justice. 34. Jacob’s Well: An Englisht Treatise on the Cleansing of Man’s Conscience, ed. Arthur Brandeis, Part 1 (London: Early English Text Society, 1900), pp. 256–57. On the composition of this text, see Leo M. Carruthers, “The Liturgical Setting of Jacob’s Well,” English Language Notes 24:4 (June 1987), 11–24. 35. The act was 1 Henry VIII c.7. See Havard, Detection of Secret Homicide, p. 36. See also Gaskill, Crimes and Mentalities, p. 266. 36. Langbein, Prosecuting Crime, pp. 10–11. 37. Quoted in J. H. Baker, “Criminal Courts and Criminal Procedure at Common Law, 1550–1800,” in Crime in England 1550–1800, ed. J. S. Cockburn (Princeton, NJ: Princeton University Press, 1977), pp. 49–71. 38. Hanson, “Torture and Truth,” 62, 54. 39. Langbein, Prosecuting Crime, pp. 118–25. On the medieval jury as “ethical witnesses” or “compurgators,” see Richard Frith Green, A Crisis of Truth: Literature and Law in Ricardian England (Philadelphia, PA: University of Pennsylvania Press, 2002), pp. 100–06. 40. This is F’s reading. Q has “And besides all that, thou hast appointed certaine Iustices of peace in euery shire to hang honest men that steale for their liuing, and because they could not reade, thou has hung them vp; Onely for which cause they were most worthy to lieu” (First Part of the Contention, p. 51).

Participatory Justice 165 41. 42. 43. 44. 45. 46.

47. 48. 49. 50. 51.

52. 53. 54. 55. 56. 57.

58. 59. 60.

61.

62.

63.

This is Gaskill’s phrase, Crimes and Mentalities, p. 239. Herrup, Common Peace, pp. 67–92. Gaskill, Crimes and Mentalities, p. 279. Gaskill, Crimes and Mentalities, pp. 253–63. Gaskill, Crimes and Mentalities, pp. 235–37. A true and faithful relation of that Horrible Murder committed on the body of Mr. JOHN NEIL, Late Stationer and Merchant of Glasgow in Scotland (London, 1656). For the identification of Roger Hill (d. 1667) as the examining justice in this case, see J. S. Cockburn, “Introduction,” Calendar of Assize Records: Home Circuit Indictments Elizabeth I and James I (London: Her Majesty’s Stationery Office, 1985), pp. 98–99. A true and faithful relation, p. 3. A true and faithful relation, p. 4. BL Add MS 46, 500, fol. 90. Gaskill, Crimes and Mentalities, p. 203. Barbara Shapiro, “Classical Rhetoric and the English Law of Evidence,” Rhetoric and Law in Early Modern Europe, ed. Victoria Kahn and Lorna Hutson (New Haven, CT: Yale University Press, 2001), pp. 64–66. Cicero, De Inventione, trans. H. M. Hubbell (Cambridge, MA: Harvard University Press, 1949), 2.14–51. William Lambarde, Eirenarcha: or of the office of the Iustices of Peace in foure Bookes . . . now secondly revised, corrected, and enlarged (London, 1592). Quintilian, Institutio Oratoria, trans. H. E. Butler (Cambridge, MA: Harvard University Press, 1920) 5.9; Cicero, De Inventione, 2.14ff. Thatcher, “Cover-up: The Murder of Gloucester in 2 Henry VI,” 114. Quintilian, Institutio, 5.9.1: “cruenta enim vestis et clamor et livor et talia sunt instrumenta.” Quintilian, 5.9.9. Cicero, De Inventione, 2.43. “Post rem . . . quod cruentum gladium habuerit” (“Pertinent events after the deed are . . . that the accused had a bloodstained sword.”) Cave, Recognitions, p. 257. See Adele Scafuro, The Forensic Stage: Settling Disputes in Graeco-Roman New Comedy (Cambridge: Cambridge University Press, 1997). George Gascoigne, The Glasse of Governement (1575), in The Complete Works of George Gascoigne, ed. John W. Cunliffe, 2 vols. (Cambridge: Cambridge University Press, 1910), pp. 38, 82–83. See Hutson, “Rethinking the ‘Spectacle of the Scaffold’: Juridical Epistemologies and English Revenge Tragedy,” Representations 89 (Winter 2005), 30–58, 45–47. See Hutson, “The ‘Double Voice’ of Renaissance Equity and the Literary Voices of Women,” in “This Double Voice”: Gendered Writing in Early Modern England, ed. Danielle Clarke and Elizabeth Clarke (London: Macmillan, 2000), pp. 142–63. Q omits to mention the commons at this point. Roger Warren, editor of the Oxford Shakespeare 2 Henry VI, observes that “F’s unspecific phrase ‘many commons’ is typical of authorial ‘permissive’ directions, the writer imagining the commons swarming on the stage.” Both F and Q keep the commons offstage (within) for the rest of the scene.

166 Lorna Hutson 64. Hall’s Chronicles, quoted from Narrative and Dramatic Sources of Shakespeare, ed. Geoffrey Bullough, vol. 3 (London: Routledge and Kegan Paul, 1960), pp. 107–08. 65. In Q , of course, the smothering is shown on stage, so the audience is has no uncertainty, but Warwick’s speech as it is found in F nevertheless performs that uncertainty as probability. 66. See Jones, Origins of Shakespeare, p. 167. 67. Patterson, Shakespeare and the Popular Voice, p. 49.

10 Truth, Lies, and the Law of Slander in Much Ado About Nothing Cyndia Susan Clegg

In 1593, more than half a decade before William Shakespeare wrote Much Ado About Nothing (1598–99), Anne Davies, “a Virgin of good fame free from all suspicion of incontinency,” brought a defamation action in the Court of King’s Bench against John Gardiner, who proclaimed that she had mothered a bastard. While Anne’s cause is not precisely Hero’s in Much Ado About Nothing, the case’s circumstances, pleadings, and rulings elucidate the complex legal and social dimensions of slander and libel in late Elizabethan England that inform Shakespeare’s play.1 Claudio’s literally stunning and unwittingly false accusation of Hero, which reenacts and attempts to displace Don John’s assault on his honor, reveals not only how gendered social conventions enable a culture of slander, but also how the law of slander might be exploited and abused. The play, however, is not only about abuse; it is also about remedies, social and legal, available and denied. From Claudio and Hero, to Beatrice and Benedick, to Dogberry and the watch, to Leonato and Don Pedro, the play asks what slander costs, how it is known, and whether law and the courts are a necessary and sufficient recourse for its victims. Like Hero, before she was slandered Anne Davies was regarded as a desirable wife. Anthony Elcock, a wealthy London mercer, was concluding marriage negotiations with Anne’s father. Intending to discourage the marriage, Gardiner reportedly said that he knew Anne’s family well, and he knew that Anne had a “child by the Grocer.” Anne’s case charged that “By reason of these words the Plaintiff was greatly defamed.” Although the defendant pleaded not guilty, the jurors found for the plaintiff, and assessed damages of 200 marks. Seeking to set aside the court’s decision, Gardiner’s lawyer maintained that the common law court lacked 167

168 Cyndia Susan Clegg

jurisdiction in the case since “the said defamation of incontinency did concern the Spiritual, and not the Temporal Jurisdiction.” The plaintiff’s counsel argued – successfully since the court agreed – that the action was maintainable at the common law because a 1576 Elizabethan statute outlawing bastardy placed actions related to that crime in the temporal courts. But the court went even further and resolved that “If the Defendant had charged the Plaintiff with bare incontinency, yet the Action should be maintainable” because the slander damaged the plaintiff’s marriage prospects.2 Sir Edward Coke regarded Anne Davies’s case as being definitive in establishing temporal jurisdiction for slander, just as the 1583 King’s Bench Palmer and Thorpe case had established that ecclesiastical jurisdiction in slander existed only if the accusations related to spiritual crimes. The assessment of these cases’ importance in Coke’s Reports, of course, did not appear until 1606, and given Coke’s reputation for extending the common law courts’ jurisdiction – especially in matters of slander and libel – the clarity with which Coke sees distinctions between jurisdictions benefited more from hindsight than from actual legal practice.3 Most legal historians agree that during the 1590s court jurisdictions were often blurred; litigants not only pursued cases where they felt the course of law would be most swift, but they initiated actions in multiple courts. Anne Davies’s case makes it apparent that a victim of slander could turn to either the ecclesiastical or the temporal courts. That the defendant sought to challenge the temporal court’s jurisdiction only after he was found to have damaged Anne suggests a legal strategy to mitigate damages rather than a legitimate effort to change venues. According to Martin Ingram, during the Elizabethan period, slander cases flooded both the ecclesiastical and the temporal courts to such a degree that “the rush to take legal action to clear sullied reputations has been called ‘a phenomenon of the age.’ ”4 Some sense of this phenomenon’s scale, within the ecclesiastical courts at least, appears in Ronald Marchant’s study of the consistory court records in Elizabethan York.5 Early in Elizabeth’s reign (1561–62), of the court’s 213 cases only 1 was for defamation, or less than one half of one percent. In 1591, defamation accounted for 48 percent of the cases (170 of 357). According to Laura Gowing, after 1600 more than half of the London consistory court’s cases concerned defamation.6 In either a temporal or an ecclesiastical jurisdiction, prosecuting slander was not without its problems, as the Davies case implies. Successfully prosecuting a slander action – or defending against it – depended entirely upon the plaintiff’s and defendant’s credibility (or lack thereof). When defamations were sexual in nature – as most were – the

Truth, Lies, and the Law of Slander 169

gendered construction of honesty and honor held enormous implications, especially in cases between a man and a woman, such as the Davies case. As Anthony Fletcher has effectively demonstrated, in early modern England “Chastity before marriage and fidelity within it was the heart of a code of female honour”; hence an “honest” and “honourable” woman was sexually chaste.7 “A gentleman’s honour,” however, according to Fletcher, “was the essence of his reputation in the eyes of his social equals, providing him with his sense of worth and his claim to pride in his own community, contributing to his sense of identity with that community.”8 In Anne Davies’s case, little evidence of Gardiner’s honor – or place within the community – exists, but his not-guilty plea and the confident assurance of his words, “I know Davies daughter well. . . . I know very well what I say,” speak to his expectation of being taken seriously in a situation in which Anne Davies was already compromised. As Gowing observes, taking sexual insult to court was hardly consistent with the ideas of women’s honour that provided the basis for defining honesty and dishonesty. Perfectly chaste and honourable women should not, technically, have discussed their sexual reputation in court; selfdefence against accusations of whoredom could be seen as contributing to dishonour, in perpetuating the discourse about sex.9 Anne’s sensitivity to her credibility’s vulnerability – or more properly her lawyer’s sensitivity – appears in the court record’s identification of Anne as “a Virgin of good fame . . . free from all suspicion of incontinency.” In addition to the disarray in court jurisdiction and the inherent difficulty for a woman to pursue a slander action successfully in any court, Anne’s case points to slander’s material cost in Elizabethan society, especially for a woman. Victims of slander, as Martin Ingram argues, suffered “legal hazards, specific social consequences, humiliation and loss of face.”10 Slander also, as the Davies case shows, threatened marriages, since choosing a marriage partner took sexual reputation into account.11 While the secular courts offered remedies when a woman suffered material damages from slander, only the church courts (where women could initiate actions on their own behalf) could help repair a woman’s reputation in a society in which, as Ingram points out, “sexual ‘credit’ or ‘honesty’ were, especially for women, of considerable and probably growing importance.”12 While the Davies case offers an excellent entrée into discussing defamation law’s relevance to Much Ado About Nothing, the play also


turns on a few other legal issues regarding slander. According to R. H. Helmholz, in legal practice slanderous words were not necessarily lies, and a defense that maintained the truth of the slanderer’s words would not stand in court. “Even a true accusation,” the canon lawyers maintained, “might be made out of malice,” and it was this malicious intent that defined slander.13 Furthermore, ill words were deemed slander only if they had “been spread among persons whose good opinion was worth having.”14 Should sufficient cause exist for a defamation action in either a secular or an ecclesiastical court, justice was neither swift nor sure. “Church courts,” Marchant notes, “were notorious for the length of time causes took to pass through them,” and the majority of defamation cases were not even prosecuted to a verdict.15 Most cases were probably settled out of court since, as Ingram observes, “it was a basic principle of ecclesiastical law that litigants should be given every opportunity to achieve a reconciliation and out-of-court settlement.”16 Even with cross-filing, fewer defamation cases appeared in the secular than in the ecclesiastical courts in the late sixteenth century – probably, Ingram concludes, because the church courts offered a remedy that may have been more effective than material compensation in a society in which reputation was deemed important: “the convicted defamer had to perform a penance which included asking forgiveness of the victim.”17 Shakespeare’s play Much Ado About Nothing participates in the “culture of slander” Lindsay Kaplan finds in late sixteenth-century England.18 In its action, characters, and language, this romantic comedy explores both a society rife with slander and the law that seeks to contain it. At the play’s center stand two pairs of lovers – Hero and Claudio and Beatrice and Benedick – whose fates depend on remedying the devastation wreaked by Don John’s claim that Hero has been unfaithful to Claudio. Don John’s defamation displays a subtle knowledge of slander’s legal definition that nearly allows his scheme to succeed, while Hero’s plight exposes women’s vulnerability to sexual slander in a world where male honor dictates culture and the law. The play’s resolution imposes such sanctions on the convicted slanderers as might be found in the ecclesiastical law courts. So attentive is the play to slander’s legal aspects that it sometimes seems that the play’s action with all its improbability (Hero’s “death” and “rebirth” and Claudio’s submission to Leonato) was conceived, like a legal fiction, as an imaginative construction designed to clarify legal principles. A play, however, needs something more than a legal fiction to engage an audience, and Much Ado About Nothing provides this with characteristically Shakespearean brittle and clever lovers, Beatrice and Benedick, and the clown Dogberry. Beatrice may well stand


alongside Kate and Rosalind as one of Shakespeare’s best comic heroines, and Dogberry (a role almost certainly created for the actor Will Kemp) as one of his best clowns, but both are as important as Claudio and Hero for understanding how slander and the law operate in the play. The play’s attention to slander’s legal character appears early. In act 1 scene 3, Don John, Don Pedro’s bastard brother, consoles his malcontented self with thoughts of discrediting the “proper squire,” the “exquisite Claudio” (1.3.46, 48).19 “That young start-up,” Don John pronounces, “hath all the glory of my overthrow. If I can cross him any way I bless myself every way” (1.3.61–64). The “way” presents itself when Don John confirms that Claudio will marry Hero, and Borachio says that he can “cross” the marriage. Borachio says that he will have Hero’s waiting woman, Margaret, appear at Hero’s chamber window if Don John will go to his brother, the prince Don Pedro, and tell him “he hath wronged his honour in marrying the renowned Claudio . . . to a contaminated stale, such a one as Hero” (2.2.19–24). Borachio then tells Don John to get Don Pedro and Claudio together alone and provides Don John a script for slander: Tell them that you know that Hero loves me. Intend a kind of zeal both to the Prince and Claudio as in love of your brother’s honour who hath made this match, and his friend’s reputation who is thus like to be cozened with the semblance of a maid, that you have discovered thus. They will scarcely believe this without trial. Offer them instance, which shall bear no less likelihood than to see me at her chamber window, hear me call Margaret Hero, hear Margaret term me Claudio. And bring them to see this the very night before the intended wedding, for in the mean time I will so fashion the matter that Hero shall be absent, and there shall appear such seeming truth of Hero’s disloyalty that jealousy shall be called assurance, and all the preparation overthrown. (2.2.29–45) In Borachio, Shakespeare creates a character who not only understands the gendered nature of sexual slander but also slanders by the law books, and the mere mention of a “trial” is the least of it. Most critics, when discussing slander in Much Ado About Nothing, focus on the damage Hero suffers. While this is certainly a legitimate concern – and one to which I will subsequently turn – I wish to begin with the slander Don John directs at Claudio, a slander that is conceived with extraordinary legal sophistication. According to Ingram men brought suits for sexual slander far less frequently than women did, and


if a man did sue, it was rarely for being called a fornicator or an adulterer.20 The greatest assault on a man’s sexual honor was to be called a cuckold: “There was nothing more disruptive of marital relations than gossip about the cuckold’s horns.”21 In Much Ado About Nothing, destroying Claudio’s sterling honor is Don John’s principal concern. He accomplishes this by “publishing” his lie about Claudio’s sexual betrayal to Don Pedro, a man whose respect was essential to Claudio and who, having arranged Claudio and Hero’s engagement, would himself be tainted by the slander. Because Don John accuses Hero to Don Pedro and Claudio before they witness the theatrical “enactment” of her faithlessness, which is signified by nothing more than a conversation spoken from her chamber to a man below, they will – based on their cultural expectation not only of feminine chastity but of the appearance of chastity – jump to the conclusion that Hero is indeed “dishonest.” Borachio thus concocts the legally sophisticated plan that Don John enacts in act 3 scene 2, with a deft and nearly wordless slander. Don John simply says, “The lady is disloyal” (94). The extent of her indiscretion is insinuated when Claudio asks, “Who, Hero?” DON JOHN: Even she. Leonato’s Hero, your Hero, every man’s Hero. CLAUDIO: Disloyal? DON JOHN: The word is too good to paint out her wickedness. I could say she were worse. Think you of a worse title, and I will fit her to it. (96–101) The cunning of Don John’s slander reveals how slander gains power within a culture. The words themselves merely allude to the possibility of sexual misconduct through the grammatical construction of possession (’s, your, ’s). It remains for the hearers to “paint out” the deeds that would realize the suggestion – to “think” of a “worse title.” Slander thrives first within the imagination where hearers provide words with a form and substance, but it truly becomes slander only when the words violate the social norms of two or more hearers. That Don John’s sexual slander resonates in a culture obsessed with male honor becomes apparent when he presents Claudio – in front of Don Pedro – with the choice to “fit” his honor and cancel the wedding or to ignore the “evidence” and, presumably, lose his honor: “If you dare not trust that you see, confess not that you know” (3.2.109–10). Claudio could have “fit” his honor by questioning Don John’s veracity, but instead, conforming to cultural gender expectations, he is predisposed to believe Don John and question Hero’s honor. He reassures himself – and Don Pedro – “If I see anything


tonight why I should not marry her, tomorrow, in the congregation where I should wed, there will I shame her” (3.2.113–15). Don Pedro’s response here (“And as I wooed for thee to obtain her, I will join with thee to disgrace her” [3.2.116–17]) underscores the degree to which Claudio’s honor is more important than Hero’s. To those of us who experience slander differently than Shakespeare’s contemporaries, Claudio’s plan to “shame” Hero seems cruel. If, however, one sees that the play’s initial slander, malicious in intent and legally savvy in its execution, intends to damage Claudio rather than Hero, Claudio’s actions become if not justifiable at least understandable. The shame of cuckoldry is Claudio’s. Don John has shown other men that Claudio lacks control over his woman – and before marriage’s final vows at that. Although in principle the courts did not allow the slanderer’s guilt or innocence to rest on the truth of the accusation, by staging the window scene as “proof” of Hero’s culpability, Don John could, for a time at least, deflect from himself an accusation of slander. From all appearances, Don John justly accused Hero to slander Claudio. In the eyes of Don Pedro, the person “whose good opinion was worth having,” Claudio is discredited and his honor is lost. To redeem himself in Don Pedro’s eyes, Claudio must demonstrate his authority over Hero, and to do so chooses to “fit” his honor by publicly shaming her on their wedding day.22 The choice between honor and silence that Don John offers Claudio points to the complex relationship between honor and law in the early modern world the play represents. Ingram says that “Slander suits in the church courts sprang from a society in which sexual reputation, ‘credit’ or ‘honesty’ was of considerable and probably growing practical importance and a major touchstone of respectability.”23 Ingram’s remarks suggest a culture in transition – not because honor is a new idea, but because prosecuting slander suits in the courts becomes the best way to protect one’s credit in an increasingly commercial and upwardly mobile society where honor is synonymous with respectability. Honor, especially masculine honor, was not a stable concept in sixteenth-century England. According to an older chivalric honor code that survived in the late sixteenth century in such literary forms as Petrarchan poetry and prose romances, a man’s honor derived in part from his dedication to protecting a woman’s honor at all costs. Chivalric honor was self-effacing, if not actually selfless. By contrast, honor focused on securing respectability is self-interested. The choice Claudio makes to “fit” his honor, ironically, shows the degree to which older notions of honor have become compromised, a compromise


which Beatrice’s sarcasm readily notes: Princes and counties! Surely a princely testimony, a goodly count, Count Comfit, a sweet gallant surely. O that I were a man for his sake! Or that I had any friend would be a man for my sake! But manhood is melted into courtesies, valour into compliment, and men are only turned into tongue, and trim ones, too. He is now as valiant as Hercules that only tells a lie and swears it! (4.2.316–23) From Beatrice’s perspective, the old order in which a man’s honor appeared in his actions and could be relied upon without requiring a sworn testimony has given way to a world of words, compliments, and idle courtesy. Don John’s compromise of Claudio, despite its grounding in sophisticated legal knowledge, also shows the law’s limitations. Slander works immediately to destroy the fabric of social relationships; legal remedies for slander take time. When Claudio hastens to imagine the actions that complete Don John’s empty words and readily plans to confront Hero on her wedding day, he reveals that slander possesses a life of its own quite outside the law. Shakespeare’s audience would have understood, as well, the constraints imposed on slander litigation by a court system with overlapping jurisdictions, incomplete slander prosecutions, and limited sanctions, as S. P. Cerasano observes: “Considering the propensity of Elizabethans to take charges of slander to court, this background would have been familiar to the audience of Much Ado About Nothing, even though it is almost entirely unfamiliar to most twentieth-century audiences.”24 Slander, of course, does not end with Don John’s attack on Claudio’s honor; it redoubles in Claudio’s effort to exonerate himself by pronouncing Hero’s dishonor to the world. The animalistic imagery Claudio employs to besmirch Hero reveals precisely how actively his imagination has envisioned a “worse title” for Hero. You seem to me as Dian in her orb, As chaste as is the bud ere it be blown. But you are more intemperate in your blood Than Venus or those pampered animals That rage in savage sensuality. (4.1.57–61) Even Claudio, however, refrains from actually employing the words that appeared so often in slander cases (words such as “incontinent,”


“unchaste,” or “whore”). Instead, he “proves” Hero is dishonest. He accuses her of talking with a man out of her window and demands, “Now if you are a maid, answer this” (4.1.86). Her answer that she “talked with no man at that hour,” although the answer of a maid, proves to Claudio and Don Pedro, who have “seen” Hero at her window, that Hero is, indeed, dishonest. If she is dishonest (a liar), she is also dishonest (unchaste), as Don Pedro’s remark, “Why then you are no maiden,” confirms (4.1.88). Don Pedro here is ready to make the accusation stick by announcing “the vile encounters” he has heard about from the man at Hero’s window, but Don John stops his brother’s mouth. Here again the absence of specific language in the slander leaves the deeds to everyone’s imagination Fie, fie, they are Not to be named, my lord, not to be spoke of. There is not chastity enough in language Without offence to utter them. Thus, pretty lady, I am sorry for thy much misgovernment. (4.1. 95–99) Leonato’s response confirms this slander’s devastating effect on both himself and his daughter. Believing these honorable men’s accusations, Leonato asks – in words that recall Benedick’s words about Beatrice, “She speaks poniards” – “Hath no man’s dagger here a point for me?” (4.1.109). As if in answer to this, Hero swoons. Leonato’s wish for death in the face of what he sees as his dishonor predisposes the audience to imagine Hero’s fall as her death, a predilection also culturally constructed. As Cerasano notes, “Slander, popularly thought of as ‘the transient murderer,’ if not actually the cause of literal death, was thought to lead to public alienation and metaphorical death.”25 Although a sensational effect that the comedy quickly undoes, Hero’s “death” symbolizes the social consequences for women subjected to sexual slander. The church scene underscores the truth about slander and the law that Don Pedro’s effort to dishonor Claudio merely suggested – law can do little to remedy the damage slander works. Without question, the audience knows, even if no one other than Don John does, that Hero is here horribly wronged. She has lost her good reputation. Her marriage is prevented. She is the victim not just of words but of overactive imaginations thriving on insinuation. Her maiden self-defense only “proves” her dishonor. For an aristocratic woman, or indeed any woman, defending oneself against accusations of sexual misconduct implies unseemly knowledge. Sexual slander, both insidious and venomous, destroys the


credibility essential for a woman to defend herself. A woman stands little chance against a man’s accusations – or here, insinuations. If the church were a court of law, Hero would stand no better chance. The most difficult aspect of her case would be that the slanders have been so skillfully constructed that her case might not even qualify to be heard. The real slanderer was Don John, but at the public moment when Claudio accuses Hero, Don John prevents the lies about deeds from being spoken, even as he turns Claudio into the accuser and defamer. Claudio, however, because he lacks malice, from a legal perspective has not committed slander. Even if Hero could bring a suit in a court of law, the court’s decision would depend on one or maybe two women’s words against those of two princes and a count, men whose credibility persuades Hero’s own father. “Would,” he asks, “the two princes lie? And Claudio lie, / Who loved her so that, speaking of her foulness, / Washed it with tears?” (4.1.153–55). Leonato’s words remind us that the problem of slander, both in society and in a court of law, is not the lie alone, but the readiness with which hearers, based on their cultural and social perspectives, embrace lies. In making Don John (the play’s only character who bears malice against another man – or woman) the fountain of slander and Claudio the “honest” agent of Hero’s devastation, Much Ado About Nothing interrogates the relationship between truth, lies, and slander – an interrogation continued in the play’s two comic subplots. Beatrice and Benedick, both of whom fashion protective garments of abusive verbal wit out of their anxiety over sexual slander, come to understand the truth about themselves through the well-intended lies of their friends. Dogberry – through whose misguided efforts at administering the law truth only inadvertently appears – so abuses language that his mistruths are nearly lies. At the center of the “merry war” between Beatrice and Benedick is their determined effort to be invulnerable to the other’s charms in order to escape marriage. Their invulnerability takes the form of a verbal offensive that is called by Leonato “a skirmish of wit” (1.1.60–61). This wit reveals the sensitivity of both Beatrice and Benedick to the effects of sexual slander and gendered notions of truth. Benedick understands not only women’s vulnerability to accusations of dishonesty (and unchastity) but also the danger to which a married man is exposed by dishonest women. “Because,” he says, “I will not do them the wrong to mistrust any, I will do myself the right to trust none. And the fine is – for the which I may go finer – I will live a bachelor” (1.1.227–30). Benedick is so well assured that he will not fall in love, he tells Don Pedro that if ever the “sensible Benedick” should bear the yoke of marriage, the


“bull’s horns” should be set in his forehead, and he should be “vilely painted, and in such great letters” advertising, “here you may see Benedick, the married man” (1.1.245–50). One might dismiss Benedick’s anxiety about marriage as a mere culturally constructed mistrust for women except that his language refers expressly to the prevalent form of male sexual slander – the cuckold’s horns. Beatrice’s marriage anxieties express themselves in language similar to Benedick’s. When Leonato tells his niece that she will never get a husband because her tongue is too shrewd, and Antonio elaborates that she is “too curst,” Beatrice replies, “Too curst is more than curst. I shall lessen God’s sending that way, for it is said God sends a curst cow short horns, but a cow too curst he sends none” (2.1.16–21). Leonato extrapolates that “by being too curst, God will send you no horns” (2.1.22–23). In responding, “Just, if he send me no husband, for the which blessing I am at him upon my knees every morning and evening” (2.1.24–26), Beatrice here demonstrates that she knows she can be free of accusations of infidelity – her husband wearing horns – only if she has no husband. Her maiden state, she assures Leonato, will be rewarded when she appears at the gates of hell, where the devil will meet her “like an old cuckold with horns on his head” and say, “‘Get you to heaven Beatrice, get you to heaven. Here’s no place for you maids’ ” (2.1.39–41). Beatrice, like Benedick, understands that the only way she can escape the culture’s most prevalent form of slander is to remain unmarried among the “bachelors” who live “as merry as the day is long” (2.1.44). Ironically, the verbal wit Beatrice and Benedick employ to protect themselves from slander shares slander’s verbal character. Both Beatrice’s and Benedick’s scathing wit depends on the kind of linguistic indeterminacy that made Don John’s slander so powerful. A witty word means one thing one moment and changes through context to mean a different thing the next. It can be benign or feel like “a whole army shooting” (2.1.231). While the speaker is wit’s agent, wit’s effect depends on how the hearer construes meaning. This, as we have seen, is also how slander works. What, we might ask, did Borachio say to Margaret at the window? Did he whisper that he would be her hero, and that she was his hero? We, of course, don’t know how he managed the fraud, but the different possibilities for the word “hero” remind us that Hero’s “honesty” (truth telling) compromised her “honesty” (reputation for chastity). The effects of both wit and slander rely upon the hearer’s ability to understand and shift meanings within contexts. As surely as Claudio inoculates himself from charges of cuckoldry by slandering Hero, Beatrice and Benedick devise “impossible slanders” to ward off


that cuckold-making institution – marriage. But what, the play asks, is the difference between Beatrice’s and Benedick’s “speaking poniards” and Don John’s and Claudio’s damaging words? Part of the answer lies in Dogberry and the way he uses – and abuses – language. Dogberry’s dubious linguistic and legal competency links the play’s interest in the language of slander with its interest in the law of slander. Phoebe S. Spinrad reminds us that Dogberry has long been regarded a “satiric commentary on the corruptions in Elizabethan law enforcement.”26 The play’s commentators usually agree with John A. Allen that Dogberry, although he effectively functions to discover Don John’s slanderous scheme, shows the “splendid lunacy” of law enforcement, especially in his notorious instructions to the watch and in his abuse of language.27 According to F. H. Mares, Dogberry’s particular problem with language “parodies” the other characters’ linguistic problems: “the whole play, as has often been pointed out, depends on the mistaking of words.”28 Such assessments, while useful, are somewhat too general to fully appreciate the ways in which Dogberry’s language and his representation of the law engage slander. The linguistic source for Dogberry’s peculiar form of humor relates inversely to that for Beatrice’s and Benedick’s humor – but requires a similar effort on the audience’s part. Beatrice’s and Benedick’s wit depends upon the audience’s ability to discern different meanings in homophones. With Dogberry, the audience must substitute the correct word – a word that is often antithetical but very close in sound – for Dogberry’s ill-chosen word. Thus, the audience has to substitute “damnation” for Dogberry’s “everlasting redemption,” “sensible” for “senseless,” “deserving” for “desertless,” “informed” for “reformed,” “intolerable” for “tolerable,” “apprehended” for “comprehended,” “assembly” for “dissembly,” and “odious” for “odorous.” The audience is able to provide the substitution based on the context in which the abused word appears. Instead of emphasizing the way in which hearers mistake words, the clever point of Dogberry’s language is that language and meaning are not entirely unstable. The competent speaker of a language is capable of discerning likeness and difference – and indeed meaning – through context. This is the antithesis of what happens with Don John’s slander, which occurs without speaking the word “whore,” and succeeds because the culture predisposes the “hearers” to believe him. Dogberry inadvertently reassures the audience that the truth, indeed, can be discerned – and sometimes through apparently contradictory language. With this information, and from its privileged position, the audience can clearly see not only that Claudio and Don Pedro are complicit in


Don John’s slander, but also that they are inept at discriminating between truth and falsehood. The audience likewise recognizes that the good-hearted “lies” – that Beatrice loves Benedick and that Benedick loves Beatrice – which Don Pedro and Leonato and Hero and Ursula tell each other in front of the eavesdropping Benedick and Beatrice, respectively, are not lies at all. The friends have understood the truth that Beatrice’s and Benedick’s wit labored to conceal. Furthermore, when Beatrice and Benedick recognize themselves in the remarks they overhear about their proud and scornful natures, they relent and drop their verbal armor. Benedick acclaims the “truth” of what he has overheard: Happy are they that hear their detractions and can put them to mending. They say the lady is fair. ’Tis truth, I can bear them witness. And virtuous – ’tis so, I cannot reprove it. And wise, but for loving me. By my troth, it is no addition to her wit – nor no great argument of her folly, for I will be horribly in love with her. (2.3.17–23) Beatrice responds similarly: What fire is in mine ears? Can this be true? Stand I condemned for pride and scorn so much? Contempt, farewell; and maiden pride, adieu. No glory lives behind the back of such. And, Benedick, love on. I will requite thee, ... For others say thou dost deserve, and I Believe it better than reportingly. (3.1.107–15) Beatrice’s and Benedick’s words reveal that in appropriate circumstances, when culturally constructed prejudices and irrational self-interest (pride) are set aside, “truth” can be recognized. Much Ado About Nothing, then, concerns itself less with mistaking words than with discerning their legitimate meaning. Don John’s slanders succeed because Don Pedro and Claudio possess rigid notions of honor – for both men and women – that interfere with a practical capacity for discerning linguistic manipulation. Both Beatrice and Benedick recognize the truth about themselves when they hear it because they have, at some level, already experienced it. In the case of Dogberry, however, although the audience may feel reassured that truth can be discerned, their confidence in legal process as a means to truth is sorely tested.


In Much Ado About Nothing, justice’s minions fumble, stumble, bumble, and fall at their every step: from charging the watch with their duty, to apprehending and examining Conrad and Borachio, to conveying Borachio’s crime to Leonato. The watch note Conrad and Borachio’s conversation only because they think they recognize the “vile thief” named “Deformed,” and one of the watch’s members still insists “Deformed” is one of the culprits after Borachio confesses (3.3.92–172). Leonato, too hasty to let law take its course, brushes aside Dogberry’s well-intended effort to have Leonato examine the “auspicious person,” an examination that might have spared Hero. Left to his own resources, Dogberry’s interrogation begins badly. All he can gain from Conrad and Borachio are their names, their claim to serve God, and their denial of knavery, which leads Dogberry to tell them, “Well, stand aside” (4.2.31). In Dogberry’s nearly misguided legal interrogation, Borachio’s defense that he is no knave almost excuses him. Precisely when Dogberry’s questioning seems to meet a dead end – where the case is built or lost on the credibility of the person being questioned – the sexton steps in to remind Dogberry that his examination lacks procedural integrity. He “must call forth the watch that are their accusers” (4.2.33). Even as Dogberry’s own social anxiety threatens to derail the evidence against Don John (“Why, this is flat perjury, to call a prince’s brother a villain” [4.2.40]), the watchmen retell Borachio’s story, and the sexton announces that the day’s events – Claudio’s accusation of Hero, her death, and Don John’s flight – corroborate the watch’s account. Legal procedure – the testimony of delegated and indifferent officers, corroborating evidence, and its written record – appears here as capable of discovering factual information when men, whose prejudices are rooted in self-interest and cultural bias, cannot.29 While it has been the frequent recourse of Much Ado About Nothing’s critics to regard the play’s legal process as a satiric commentary on either the abuses of the local constabulary or the legal justice system, Dogberry effectually shows that the law is both successful and necessary – however much he “blunders into truth,” as John Allen so aptly describes his efforts.30 That the law, however halting it might be, can discover Hero’s innocence argues the law’s necessity in a society permeated by slander, and the play’s conclusion proposes that church law is better equipped than secular law to offer remedies to slandered women, especially slandered aristocratic women. In the case that opened this essay, the secular court awarded damages to Anne Davies because Gardiner’s slander had compromised the negotiations for her marriage to a man of substance. In Much Ado About Nothing, Claudio’s and Hero’s worth derives from the aristocratic values of


honor and virtue – values that make slander in this social class all the more devastating. Claudio neither boasts of his father’s wealth or his own stewardship as Petruchio does in The Taming of the Shrew (1592), nor does he link financial need to his marriage ambitions as Bassanio does in The Merchant of Venice (1596–97). Indeed, Much Ado About Nothing is singular among Shakespeare’s comedies in its lack of interest in its young lovers’ material prospects. Even if Hero’s cause could come within slander’s legal definition, because Hero did not suffer measurable financial loss, resorting to the secular law courts would not have been an option for a young woman of her class. But what about the church courts? As we have seen, prosecuting slander in the church courts presented problems; despite this, Much Ado About Nothing seems to suggest that the ecclesiastical remedy for slander was both effective and just. A defamer convicted in a church court had to ask forgiveness of the victim and perform some form of public penance. Ingram suggests that the remedy in small communities was probably more attractive to litigants than receiving material damages.31 While secular litigation might exact a victim’s just due, it could do little to undo slander’s damage to a victim’s reputation and position in the community. Public penance and apology, however, could restore a victim’s good name. The penance Leonato imposes on Claudio conforms to the ecclesiastical remedy’s requirements. Leonato requires Claudio to “Possess the people in Messina here / How innocent she died” (5.1.273–74) by hanging an epitaph on her tomb and singing to Hero’s remains. The epitaph declares her innocence, and the song asks pardon for Claudio and his party: Pardon, goddess of the night, Those that slew thy virgin knight, For the which with songs of woe Round about her tomb they go. (5.3.12–15) Although this occurs in the dark of night, consistent with an ecclesiastical court’s sentence, the penance is public (the epitaph will remain on the tomb). It also is distinctively liturgical. Claudio and Don Pedro arrive at the tomb with “three or four others” dressed in black and carrying candles. Claudio’s reading the epitaph from a scroll marks the occasion’s solemnity, and the words of the song, a “solemn hymn,” envision its being sung as part of a ritual procession around the tomb. Even before the penitential ritual at Hero’s tomb, Much Ado About Nothing suggests the value of the church and its courts for mediating scandal’s devastating consequences. When Hero is exposed, right after


Don John, Don Pedro, and Claudio depart, it is the Friar who speaks comforting words to Hero. Then, employing common sense, he testifies to the evidence that argues Hero’s innocence: I have marked A thousand blushing apparitions To start into her face, a thousand innocent shames In angel whiteness beat away those blushes, And in her eye there hath appeared a fire To burn the errors that these princes hold Against her maiden truth. (4.1.160–66) The Friar’s words contrast starkly with those of Don Pedro’s witness (which Leonato accepted because he believed “princes” would not lie) that he had seen and heard Hero at her window. The Friar has seen Hero’s face and offers his reading of it as an “experimental seal” that “doth warrant / The tenor of my book” (4.1.167–69). Not only is his evidence, he maintains, stronger than Don Pedro’s, but his honor and credibility derive from his godliness, which he stakes on Hero’s innocence: “Trust not my age, / My reverence, calling, nor divinity, / If this sweet lady lie not guiltless here” (4.1.169–72). When Leonato persists in accusing Hero, the Friar, in what begins to resemble an ecclesiastical court proceeding, gives Hero the chance finally to be heard. When Leonato then turns to call for justice against those who have wronged her, the Friar tells him to pause “And let my counsel sway you in this case” (4.1.203) – “counsel” and “case” reinforcing the scene’s judicial character. The scene, however, does not end in a judgment, but instead employs two other strategies that appertained to slander in the ecclesiastical court: mediation and delay. The Friar’s proposal to let Hero “a while be secretly kept in” (4.1.205) while the family goes through the rituals of mourning her “death” effectively depends upon the mediating character of time. As time passes, Claudio will reconsider: When he shall hear she died upon his words, Th’idea of her life shall sweetly creep Into his study of imagination, And every lovely organ of her life Shall come appareled in more precious habit ... Then shall he mourn,


If ever love had interest in his liver, And wish he had not so accused her, No, though he thought his accusation true. (4.1.225–35) Even if time does not mitigate the slander, after a while Leonato can protect Hero “out of all eyes, tongues, minds, and injuries” by consigning her to a “reclusive and religious life” (4.1.244–45). This reliance upon time points to ecclesiastical slander litigation’s practical effect; its delays, as Ingram points out, often produced reconciliation among the parties as slander’s stinging effects dissipated.32 In the church courts, the injuries that time did not heal were often resolved outside of a formal judgment since, as Ingram points out, “it was a basic principle of ecclesiastical law that litigants should be given every opportunity to achieve a reconciliation and out-of-court settlement.”33 Given this, the Friar’s call for delay makes sense. He is effectively asking for time to effect a settlement and reconciliation outside of the traditional legal venue, and he is seeking a solution that can remedy the damage Claudio’s words have done. Although Hero is not literally dead, by losing her reputation she is figuratively so. In the words of another devastated Shakespeare character, in losing her reputation she has lost the self’s “immortal part.”34 Thus, publishing and mourning Hero’s death accords with the essential social truth about sexual slander. The Friar’s proposal to cloister Hero should time not change Claudio’s heart reminds us of the degree to which a slandered woman experienced a social and cultural death. To be concealed “out of all eyes, tongues, minds, and injuries” – out of human contact – likens the reclusive life to a tomb’s dark silence. The play’s action, of course, spares Hero this harsh exile when the secular justice system – Dogberry, Verges, and the watch – present Conrad and Borachio to (of all people) Don Pedro, in a scene that threatens to perpetuate rather than uncover the slander since Dogberry is, in Don Pedro’s words, “too cunning to be understood” (5.1.221–22). Having already been shown at law to be a slanderer, Borachio confesses to Don Pedro in what once more resembles a court proceeding. When Leonato arrives and asks whether Borachio has killed his innocent child, Borachio replies, “yea, even I alone” (5.1.257). In a legal sense, Borachio is correct when he admits he “alone” has slandered Leonato’s innocent child. In a court, he alone would be subject to the court’s sentence. Leonato, here, however, reminds us that slander lies as much in the belief as in the words. Borachio, by confessing, has exonerated himself, but Claudio and Don Pedro, who in the name of “high and worthy


deeds” have been complicit in the crime, stand unaccused. Claudio acknowledges his error and asks for penance: Impose me to what penance your invention Can lay upon my sin. Yet sinned I not But in mistaking. (5.1.265–67) These lines, which lead some critics to see Claudio as a dishonorable cad, can be better understood within the context of ecclesiastical court practices. In asking for penance, Claudio admits that he has participated in the culture of slander to wound Hero’s reputation – he has believed the rumor, and for this he deserves to participate in a penance that, according to the tradition of the ecclesiastical courts, will ameliorate his wrong by publicly restoring Hero’s good name. His second mention of sin, however, makes it clear that his sin is not a crime as a court would define it – it was not a slander that was spoken with intended malice. Claudio’s willingness here to accept the equivalent of an ecclesiastical court’s sentence, which he can expect to be public penance, even though he has not engaged in slander as defined by the law, shows a greater growth in his sense of honor than many critics have allowed. Don Pedro, likewise, seeks to redeem his honor by submitting to Leonato. When Claudio and Don Pedro perform their penance, the act not only mediates their crime but restores Hero’s reputation – and thereby the immortal part of her. Claudio also displays his contrition in the obedience he shows Leonato by accepting Hero’s “cousin” as his bride. Claudio here demonstrates a sense of honor that is consistent with selfless chivalric ideals. The ending of Much Ado About Nothing, facile though it might appear, recapitulates the play’s interrogation of truth, lies, and the law of slander. Hero’s assurance to Claudio that “One Hero died defiled, but I do live” (5.4.64), reiterated by Leonato’s “She died, my lord, but whiles her slander lived” (5.4.66), establishes this unequivocally. The remedy the play advances for this kind of slander – penance that effects the rehabilitation of both Claudio’s and Hero’s honor – embodies an essentially conservative world view that reaffirms both chivalric honor and the older, more traditional ecclesiastical jurisdiction as the appropriate venue for mitigating slander’s damage. The play balances this conservative solution nicely by acknowledging the existence of a culture of slander, apparent in Beatrice and Benedick, that warps society’s view of men, women, and marriage. Slander and its consequences may be inescapable both because gendered notions of honor embedded within the society


distort communication and because the information communicated, how it is uttered and how it is understood, is vulnerable to human frailty. Where humans err, the play suggests, the law and its procedures for gathering, recording, and verifying information – however inept they may be – must intervene. While this play has certainly had its critics – F. H. Mares, for example, likens it to the problem plays35 – when considered from the perspective of slander, the essential unity of its diverse plots, the counterpoint between the two sets of lovers, and the cleverness of its linguistic games argue the play’s sophistication. But even from this perspective, to a modern reader the play may be seen to err on those occasions when it veers from drama toward ideology. The London audiences, however, that greeted Much Ado About Nothing’s arrival on the London stage late in 1598 or early in 1599 may have been more excited than bothered by its exposé of scandal. Indeed, they might well have been impressed by the play’s timeliness – and not just because they were immersed generally in a “culture of slander.” In 1598 and early 1599 a rash of printed satires and epigrams flooded the London booksellers’ stalls. Pretending (or perhaps intending) a general attack on the follies of the age, their tendency to assign fictitious individual names to characters who personified the age’s vices invited what their printed preliminaries called “busie conjectures”36 which, like Claudio’s and Don Pedro’s envisioning of Hero’s crimes, were trumped by allusive language. As I have argued elsewhere, Robert Devereux, the Earl of Essex, appears to have figured prominently in these satiric publications.37 In late 1598 and early 1599 Essex was the focus of court rumor and scandal. In 1599’s most important political event, Essex led an expedition to Ireland to crush Tyrone’s rebellion. Queen Elizabeth had recognized the necessity of sending forces in August 1598 and favored Essex for Earl Marshall to lead the assault, but court faction delayed his appointment until March 1599. In a letter to Lord Willoughby in early January, Essex announced that he was “tied to his own reputation” to go to Ireland, although he knew by doing so he would become vulnerable to his enemies.38 A few weeks later Willoughby replied, “Though Ireland calls you, Satyrs can hear that England cries out for you.”39 In a speech to the Star Chamber in 1600 Lord Keeper Sir Thomas Egerton admonished the justices to take particular care “against libelers who by tongue and pen” issue slander, and then digressed to Essex, beginning with these words, “And such of late had slandered her Majesty’s officers by libels.”40 In 1600, the year before committing his ill-conceived rebellion,


Essex had lost the queen’s favor and was confined under house arrest, exiled from the queen and court he loved. Faction at court spread to rumor in the city. I do not wish to go so far as to suggest Shakespeare was part of Essex’s circle and wrote this play out of sympathy for Essex’s plight among the “satyrs.”41 It is, however, relevant that many Londoners saw Essex as a popular hero who aligned himself with older notions of chivalric honor42 and that he was a man whose honor was being impugned by slander and libel. Much Ado About Nothing’s first audiences surely felt a shiver of recognition as the play engaged such timely matters as truth, lies, and law in a world permeated by slander.

Notes 1. The ecclesiastical courts used the word “defamation” to embrace cases of both slander and libel. In the secular courts the words were used interchangeably, and it was not until the late seventeenth century that the two words were consistently given the modern legal meanings that discriminate between a spoken assault on someone’s character (slander) and one that is written (libel). 2. Edward Coke, Reports, Part 4 (London, 1658), p. 231. 3. Ronald Marchant, The Church under the Law (Cambridge: Cambridge University Press, 1969), p. 10. Coke himself successfully defended his client, Edmund Denny, in a 1578 slander case that established the legal principle of intentionality. Legal historians point to Coke’s instrumentality in defining the criminality of slandering or libeling a private person in the 1606 De Libellis famosis Star Chamber case. See for example W. S. Holdsworth, A History of English Law, vol. 7 (Boston, MA: Little, Brown, and Company, 1926), pp. 336–40. 4. Martin Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge: Cambridge University Press, 1987), pp. 292–96. 5. Marchant, Church under the Law, p. 61. 6. Laura Gowing, “Language, Power and the Law: Women’s Slander Litigation in Early Modern London,” in Women, Crime and the Courts in Early Modern England, ed. Jennifer Kermode and Garthine Walker (Chapel Hill, NC, and London: University of North Carolina Press, 1994), pp. 26–47. Evidence from Ingram, Marchant, and Gowing undermines the argument of S. P. Cerasano’s essay on slander law and Much Ado About Nothing, “Half a Dozen Dangerous Words,” in Much Ado About Nothing and The Taming of the Shrew, ed. Marion Wynne-Davies (Houndmills: Palgrave, 2001), pp. 31–50. According to Cerasano, by Shakespeare’s time the ecclesiastical courts were becoming extinct and “slander suits lost their natural legal venue” and were heard instead in at least three different secular courts that were hostile to the claims of women (p. 33). Not only were the courts hostile to women, but the law could do nothing to restore a damaged reputation. Cerasano argues that Hero is victimized by men who “use language to set up the law for their own advantage [and] . . . to diminish women to nothingness” (p. 44). While Hero is certainly victimized, as Cerasano argues, the law of slander that plays out in Much Ado About Nothing acknowledges the vitality of the ecclesiastical courts noted by Ingram, Marchant, and Gowing.

Truth, Lies, and the Law of Slander 187 7. Anthony Fletcher, Gender, Sex, and Subordination in England 1500–1800 (New Haven, CT: Yale University Press, 1995), p. 101. 8. Fletcher, Gender, Sex, and Subordination, p. 126. 9. Gowing, “Language, Power, and the Law,” p. 40. 10. Ingram, Church Courts, p. 313. 11. Ingram, Church Courts, p. 310. 12. Ingram, Church Courts, p. 313. 13. R. H. Helmholz, ed., Select Cases on Defamation to 1600, vol. 10 (London: Selden Society, 1985), p. xxx. 14. Helmholz, Select Cases on Defamation, p. xxxv. 15. Marchant, Church under the Law, p. 65. 16. Ingram, Church Courts, p. 318. 17. Ingram, Church Courts, p. 294. 18. Lindsay Kaplan, The Culture of Slander in Early Modern England (Cambridge: Cambridge University Press, 1987). Kaplan establishes the relationship between this cultural phenomenon and literature by looking at Spenser’s Faerie Queene, Ben Jonson’s Poetaster, and Shakespeare’s Measure for Measure. It is probably not surprising that she does not consider Much Ado About Nothing, since she is more interested in how slander participates in a political discourse of state repression and artistic resistance. 19. William Shakespeare, Much Ado About Nothing, 1.3.46, 48, in The New Cambridge “Much Ado About Nothing,” ed. F. H. Mares (Cambridge: Cambridge University Press, 1988). 20. Ingram, Church Courts, pp. 302–03. 21. Fletcher, Gender, Sex, and Subordination, p. 104. 22. For an excellent discussion of the nature of male camaraderie in the play, see Harry Berger Jr. “Against the Sink-a-Pace: Sexual and Family Politics in ‘Much Ado About Nothing,’ “ in Much Ado About Nothing and The Taming of the Shrew, ed. Wynne-Davies, pp. 13–30. 23. Ingram, Church Courts, p. 292. 24. Cerasano, “Half a Dozen Dangerous Words,” p. 35. 25. Cerasano, “Half a Dozen Dangerous Words,” p. 40. 26. Phoebe S. Spinrad, “Dogberry Hero: Shakespeare’s Comic Constables in their Communal Context,” Studies in Philology 89 (1992), 161. 27. John A. Allen, “Dogberry,” Shakespeare Quarterly 24 (1973), 46. 28. Mares, ed., Much Ado, p. 37. 29. As Maurice Hunt points out, it is the law’s “ ‘pen and inkhorn’ (3.5.54) that fix the verbal testimony of Borachio and provide the record by which Leonato, Don Pedro, and Claudio conclusively learn that an innocent woman has been wrongly slandered.” Maurice Hunt, “The Reclamation of Language in ‘Much Ado About Nothing,’ ” Studies in Philology 97 (2000), 183. 30. Allen, “Dogberry,” p. 173. 31. Ingram, Church Courts, p. 294. 32. Ingram, Church Courts, p. 318. 33. Ingram, Church Courts, p. 318. 34. Cassio speaking in Othello laments, “Reputation, reputation, reputation – O, I ha’ lost my reputation, I ha’ lost the immortal part of myself and what remains is bestial!” (2.3.256–58). 35. Mares, ed., Much Ado, p. 35.

188 Cyndia Susan Clegg 36. Edward Guilpin, Skialetheia or A Shadowe of Truth (London, 1598), C2. Among the satires published in 1598 in London were John Marston’s Pygmalion (1598), Thomas Middleton’s Microsynicon (1598), John Davies’ Epigrames (n.d.), and Joseph Hall’s Virgidemiarum (1597, 1598). All of these were banned in 1599 by order of the Bishop of London and the Archbishop of Canterbury. For a discussion of the 1599 so-called Bishops’ Ban, see chapter 9 of my Press Censorship in Elizabethan England (Cambridge: Cambridge University Press, 1997). 37. Clegg, Press Censorship in Elizabethan England, pp. 210–16. 38. Royal Commission on Historical Manuscripts, Calendar of the manuscripts of the most honourable, the Marquess of Salisbury preserved at Hatfield House, Hertfordshire, vol. 9 (London: Her Majesty’s Stationery Office, 1883–1976), p. 10. 39. Salisbury Manuscripts, vol. 9, p. 35. 40. Salisbury Manuscripts, vol. 10, pp. 182–84. 41. Valerie Mears, “Regnum Cicilianum?” in John Guy, ed., The Reign of Elizabeth I (Cambridge: Cambridge University Press, 1995), pp. 65–86. 42. Mears, “Regnum Cicilianum?” pp. 65–86.

11 The “Amending Hand”: Hales v. Petit, Eyston v. Studd, and Equitable Action in Hamlet Carolyn Sale

The Clown’s reference in Hamlet (1599) to the “three branches” of action,1 arguably the most famous legal allusion in the Shakespearean canon, has long been understood as an allusion to a case heard in the Common Pleas in 1562, Hales v. Petit. There has, however, been little attempt to make sense of the relationship of the case to the play.2 I am interested in the case as a property suit brought by a woman, and thus in what it permits in terms of feminist legal historiography. I read the case’s notorious judgment in situ – that is, in the context of the case’s extensive argumentation as furnished to us by Edmund Plowden’s report – to trace the ideological investments that shape the legal rationale and judgment. I also read Plowden’s report in relation to Chief Justice Sir James Dyer’s, to show how the case reifies certain disabling constructions of the relationship of women and property.3 The property aspects of the case make it one of a trio of sixteenth-century cases reported by Plowden important to the law of married women and property in the period. The second case, Wimbish v. Tailbois, lays bare the misogynistic tendencies of much sixteenth-century jurisprudence, and the third case, Eyston v. Studd, gave rise to Plowden’s famous commentary on equity. I offer analysis of all three cases in order to suggest how the law’s narrative control of a dead man’s actions, its constructions of the relationship of women to property, and one of the difficulties at the heart of Plowden’s conception of equity converge in Shakespeare’s play. The greatest revenge tragedy of the era, Hamlet responds to the particulars of Hales v. Petit and the ideological investments of the jurisprudence 189

190 Carolyn Sale

in Wimbish v. Tailbois to give dramatic embodiment to the “moral virtue” that, according to Plowden, corrects all “defects” in the law, equity.

Dame Hales’s case As both T.E. in The Lawes Resolutions and the running titles in Plowden’s Commentaries remind us, Hales v. Petit was “Dame Hales’s Case.” The case occurred in 1559, when Lady Margaret Hales, widow of Sir James Hales, a justice of the Common Bench who drowned in 1554 in the River Stour near Canterbury, brought a writ of detinue (or a writ of recovery of property) against Cyriack Petit, the man to whom the Crown had leased property forfeited to it with the characterization of Hales’s death, by a coroner’s jury, as suicide. The case was heard in the Court of Common Pleas, under Chief Justice Sir James Dyer and Justices Anthony Brown and Richard Weston. Serjeants-at-law Southcote and Puttrell argued the case for the plaintiff, and Serjeants-at-law Walsh, Bendloe, Carus, and Chomley argued the case for the defendant. Margaret Hales claimed that she held the estate under a joint tenancy with her late husband. The lands in question had originally been leased on March 8, 1535, for a term of twenty-one years to James Hales and his father, John. When his father died in 1540, James Hales renewed the lease with his wife’s name on it, for a term of twelve years. Margaret’s holding in the lease did not, however, begin until the cessation of the first lease in 1556. At the time of her husband’s death in 1554, Margaret was not on title. The legal action in Hales v. Petit therefore concluded with Justice Brown contending that all argumentation in the case was, in the final analysis, moot, as the lease over which they had been arguing was not the lease in effect at the time of James Hales’s death. The arguments in the case nevertheless proceeded on the assumption that Margaret Hales did have a claim to the property leased. Plowden’s report allows us to trace how this assumption informs the proceedings and establish the extent to which the case is about the relationship of women to property. Committed to pursuing a radical new form of report in which he refuses to “[suppress] any sentence which [he] remembered and thought to be very material,” Plowden produces a report that shows the judicial narrative of Hales’s death preempting Margaret’s coming-into-life under the law, as a woman emerging from coverture to bring a property suit in her own name.4 In its fullness, Plowden’s report allows us to trace how the two aspects of the case – the incrimination of Hales and the defeat of his widow’s action – work together in ways that make it impossible to disentangle cause from effect.

The “Amending Hand” 191

This is how it works. Southcote and Puttrell argue that at the instant of Hales’s death, his wife, who held the lease with him, took the entire lease by right of survivorship. The radical aspect of their argument is that she does not thereby assume new property; “she claims no more than that which she had in the life of her husband” as she held the lease, as her husband did, “by entireties” or with “no Moities between them.”5 Their claim attributes a great deal of power to a joint tenancy between “baron and feme” by asserting for Margaret rights unaffected by her husband’s actions. Walsh, Bendloe, Carus, and Chomley’s counterarguments, which do not ever explicitly deal with the claim that Margaret held the lease “by entireties,” focus on constructing a narrative of Hales’s death that situates the lease in the sovereign’s hands before it can vest in Margaret by right of survivorship. The felony must be understood to have occurred before Hales actually died, for, as Bendloe notes, “[a] dead man can have no property.”6 Serjeant Walsh therefore proposes the case’s notorious division of action into three parts – the “imagination” of the act, the “resolution” to commit it, and its “execution” in the doing. The felony could therefore be understood to begin with the “imagination” of the act, and to have been conclusively resolved upon at the moment that Hales stepped into the water, permitting the claim that Hales forfeited his goods to the Crown with the initiation of the doing, rather than at its completion (that is, once he was dead, and decisively the victim of felo de se).7 Once Walsh has figuratively brought Hales back to life so that the Court might execute judgment upon him while he is still alive, Dyer saturates the “beginning” of the execution of the act, the moment that Hales steps into the water, with intention, imputing to him not only the intention to commit a felony (“the killing of himself was prepensed and resolved in his Mind before the Act was done”), but also the intention to “escape the Sentence of the Law.”8 The real concern here is with the possibility of judicial impotence, as Dyer, Walsh, and Bendloe plainly state in several ways: they would have no way of executing any judgment against him, no way of performing their authority in relation to his act, no way of pronouncing sentence, without the fiction that Walsh proposes. Their narrative of his death, which locates in his act of stepping into the water both the felonious intention to kill himself and the “Time of [his] Flight” from the law, thus upholds the seizure of the estate that took place at the time of the coroner’s inquest in 1554 while (re)securing their authority, which they imagine to be threatened by Hales’s “cunning.”9 The popular sense that the case epitomized what Hamlet calls the “insolence of office” (3.1.73) would have been exacerbated by

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the belief that Hales had slipped from a bridge over the River Stour and fallen into the water in which he drowned.10 Dyer, Walsh, and Bendloe’s narrative ensures that Margaret Hales’s rights as wife are “ended and extinct”11 at the moment that Hales steps into the water. The fiction of coverture – that man and wife are one person – has her entering the water with him too, and while she may survive, and, as widow, clamber onto the shore again, the sovereign has in the meantime come and seized the estate. Margaret Hales may emerge from the water a feme sole, with none of the felony attaching to her, but the hyperincrimination of her husband’s act deprives her of all agency at precisely the moment when she ought to have been able to exert her power in relation to the lease in her own right, the moment of his death. The arguments in the case in theory make it impossible for anyone to contend this, for the justices secure the forfeiture not from a widow, a freshly empowered feme sole, but rather from the wife of a felon. The suppressed rationale that they are actively disabling a widow while claiming to thwart the power of a dead man nevertheless rises to the surface in their subsequent claim that the finding in the case is similar to property escheating to the king where “the Wife is found an Ideot.”12 Margaret Hales is as effectively incapacitated as if she were indeed mad. Dyer’s report, written after the fact, both intensifies and naturalizes the most controversial aspects of the case. Amongst other things, Dyer’s report occludes what another anonymous reporter saw fit to state plainly in his much briefer redaction of the case: “if a man of unsound mind kills himself, he shall not forfeit his goods or lands.”13 Neither in his remarks in the case nor anywhere in his report does Dyer acknowledge the possibility that Hales may not have been of sound mind when he drowned. In the report, Dyer attempts to justify his attribution of felonious intention to Hales by citing the fourteenth-century lawyer Henry Bracton on the importance of intention: “[I]n crimes the intention is regarded, not the result.”14 But Bracton uses this principle to entirely different ends, to exonerate those who commit accidental homicide. “A crime is not committed unless the intention to injure exists,” Bracton writes.15 As a result, if a ball strikes the hand of a barber causing him to “cut another’s throat,” the barber is not culpable of murder, as an object over which he exerted no control, and in relation to which he intended nothing, caused the crucial action. Dyer makes Bracton’s reference do other work: “The exterior act of the body shall be measured and known by the will, intent and purpose of the mind,” he writes, “which is the inner part of man, because the intention and purpose are what distinguish wrongdoing, and in wrongdoing the ‘intention is regarded and


not the outcome’ (according to Bracton).”16 The context in which Bracton articulates the principle is not fairly transposed to the context in which Dyer reapplies it, Bracton having used the notion not only in relation to another kind of crime, but also to exculpate the accused. Bracton’s commentary makes intention significant in its absence, which can be fairly posited; Dyer’s makes it significant in its fictional presence, impossible to locate. Dyer’s report also deepens the case’s potentially deleterious effects for women. Dyer makes two broad claims. The first, that a “wife cannot be matched in jointure with her husband,” is on the face of it nonsense.17 Clearly a wife could be matched in jointure with her husband, or Hales, once sitting alongside Dyer on the Common Bench, would not have renewed the lease with his wife’s name on it instead of his father’s. Presumably what Dyer means is that under coverture a “jointure” is meaningless, since the wife cannot ever be said to hold property in her own name or right. The wife’s name on the lease speaks to future interests, not any present proprietary right or reality during the lifetime of her husband. Dyer here takes a retrogressive position on the character of a jointure, affirming the common law’s “rejection of any theory of community” of ownership between husband and wife, to deny the possibility that Margaret Hales had any legally meaningful relationship with the lease while her husband was alive.18 For his second claim, Dyer reaches back over a century, citing a suit from the very early years of Henry VI’s reign to assert “a married woman has no property in a chattel.”19 This claim, consistent with the first, is broader and more controversial: as William Holdsworth notes, up until the thirteenth century, it is entirely unclear whether a woman could or could not hold property in a chattel,20 and though the common law from the thirteenth century onward generally tended to diminish a married woman’s power in relation to property, a lease occupies strange ground: it is not, as Dyer claims, “among the least things in law, inasmuch as it is only a chattel,” for it is not a “mere chattel but a ‘chattel real.’ ”21 As a “chattel real,” a joint tenancy between “baron and feme” posed a challenge to the sweeping disablement of Dyer’s claim. To make matters worse, Dyer’s use of the case from 7 Henry VI is reactionary. Southcote and Puttrell make another case from the same regnal year central to their argument. That case witnesses a female plaintiff claiming a term of years held before her marriage, not by survivorship, but as the original lessor, and Southcote and Puttrell cite it to establish a married woman’s holding in a joint tenancy as “paramount” to any “charge” that her husband may execute against it while they are married.22 (Walsh,

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Bendloe, Carus, and Chomley contend that the forfeiture for Hales’s felony is analogous to a joint lease being voluntarily “charged” by a husband during the wife’s coverture.) The arguments in the case so resoundingly support Southcote’s and Puttrell’s use of it – and a wife’s meaningful proprietary holding in a joint tenancy – that Dyer cites instead Dacre’s Case, which turns on the issue of whether a wife may be “attached” (or have goods held in bail until she appears in court to answer a suit) by the goods of her husband. Contending that a feme covert may have no possession in a chattel and that a husband and wife cannot hold goods in common, Chief Justice Babington orders that the writ, whose wording assumes both, shall abate for form.23 Babington’s assertions bolster Dyer’s general claims, but Dyer proceeds to a conclusion that cannot fairly be reached from either of the cases: where the husband “has declared his will” in regard to a lease, and “charged” it in one way or another, “his wife shall not have it by survivorship.”24 In his retrospective justification of the seizure of property from Margaret Hales, Dyer wrests a conclusion from Dacre’s Case that the arguments in the other case from 7 Henry VI oppose, to quash a meaningful relationship between a woman and property during her coverture, and make meaningful instead any exercise of the husband’s “will.” Plowden’s report confutes the totalizing authority of Dyer’s statements. Barred from advancement within the courts for his Catholicism and therefore not vested in the institution or its sentences, Plowden preserves Southcote’s and Puttrell’s claim that Margaret Hales held the lease “by entireties” – or held the whole, in common with her husband. It is precisely because Plowden preserves this claim that we may follow the seventeenth-century writer T.E. in situating Hales v. Petit in the context of Wimbish v. Tailbois and Eyston v. Studd, both of which involve readings of 11 Henry VII c.20. Wimbish v. Tailbois shows the justices, who include Sir James Hales, interpreting the statute from misogynistic premises that the justices in Eyston v. Studd, who, ironically, are Dyer, Weston, and Brown, resist. The larger picture that the three cases, read in conjunction, provide helps us trace the ways in which Hamlet provides symbolic compensation for the assumptions about women and property that Dyer promulgates in his report on Hales v. Petit. T.E. presents 11 Henry VII c.20 as a statute designed to undercut the “cunning” of women who subverted the law’s attempts to restrain their actions as widows by “dispos[ing]” of the property that they inherited from their husbands as they chose by “alien[ing] lands . . . to whom they liked in fee.”25 The statute is applied to Wimbish v. Tailbois (1550) when Elizabeth Wimbish alleges “covin” or collusion between her grandmother


and a male relative, William Tailbois, to recover property left in use to Elizabeth Tailbois for her life, and then to Elizabeth Wimbish and her husband for their lives. In instances of “collusive” or “feint” recovery on the part of a widow, the statute permits the wronged heir to enter the property as if the widow “had ben ded.”26 One of the justices of the Common Pleas in 1550, Hales argues that the plaintiff should recover in a lengthy speech about judicial interpretation that anticipates Plowden’s later commentary on equity. At the same time, Hales refers to women in terms awfully similar to a certain dramatic character’s statements about women: “the Makers of the Statute considered the Frailty and Inconstancy of Woman, who might easily by flattering Words be deluded and enticed to Covin, and therefore they ordained against them a Penalty, as a Bridle to their Inconstancy.”27 Taken together, Hales’s statements in the case generate the kind of ambivalence that readers of Hamlet may feel about its leading character for the greater part of the play, as he aims to correct injustice in the form of an unprosecuted murder yet utters more than one comment and does more than one deed that suggests an impoverished view of women’s general character and abilities. The issue of character is entirely relevant, for Plowden’s conception of equity depends upon the premise that there is an organizing consciousness – one “upright” and “reasonable” – that can mediate between the legal text as received and the legal judgment that needs to be rendered in a given judicial situation, reconciling written law with the particulars of each case according to the perceived intent of the lawmakers. Hales may speak of equity, but his rationale in the case is informed by his assumptions about women, which he attributes to the statutemakers, construing their intentions within his own conceptions and thereby generating the kind of “defect” which Plowden argues equity is supposed to correct. To produce equitable jurisprudence, Plowden suggests that jurists and lawyers “put Questions” to an imaginary interlocutor, the statute-maker, and supply to themselves “the same Answer which [they] imagine he, being an upright and reasonable Man, would have given.”28 But only where they question their own assumptions about the relationship of women to property, and their attitudes to women more generally, will they be able to resist any tendency or predisposition to do what Hales does in Wimbish v. Tailbois, permit assumptions about women’s “frailty” to sanction a reading and application of statutory law that supports the “bridling” of women and a circumscription of their property actions. We see a step toward this in the judgment in Eyston v. Studd. Thomas Eyston brings a writ of “ejectione firmae” against Richard Studd, claiming that he is trespassing on lands that Eyston has leased

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from John Latton, the son of William and Margaret Latton. Richard Studd claims to have leased the land from Margaret Latton, who married Richard Alexander after her first husband’s death. Counsel for the plaintiff cites the holding in Wimbish v. Tailbois verbatim to argue that the matter is to be construed within 11 Henry VII c.20, and Margaret Alexander held guilty of aliening land that should have descended to her son John. Counsel for the defendant, however, argues that the case does not fit within the equity of the statute, which is designed to protect the rights of “heirs of the husband,” for the property in question was always Margaret’s. The case is a tricky one: Margaret inherited the property in question from her own “ancestors,” but while still married to Latton was compelled to grant it to Richard Alexander by way of fine. Some matter of principle must be at stake, for Alexander, having secured the property, immediately returns it to the Lattons by way of grant. The plaintiff’s argument entails the claim that when the property made its circuit between the Lattons and Alexander, it changed character: although it was initially Margaret Latton’s by way of inheritance and was held jointly with her husband in her right, it returned to the Lattons as a “Purchase” of the husband’s, and therefore did not return to her properly at all: perhaps it will be objected that it is the Purchase of the Wife as well as the Husband, most certainly it is so, for it is the Purchase of them both, but nevertheless it is the Purchase of the Husband, for that which is the Purchase of the Husband and Wife may be called the Purchase of the Husband.29 Although this claim initially appears to grant what Dyer denies, that “a wife cannot be matched in jointure with her husband,” the elision of the wife’s holding at the end works to much the same effect, voiding the significance of a woman’s name on title to any property, including a lease, acquired by husband and wife jointly during the marriage. But the case here takes an extraordinary turn: the serjeants arguing the defendant’s case claim that the statute was intended “to restrain [only] women, who had jointures which preceded originally from their Husbands or from the Ancestors of their Husbands.”30 That is not, they contend, what occurred here since Margaret Alexander inherited the property from her ancestors and at no time lost or surrendered her right or title to the property in question: the Wife here has made a Jointure to her Husband of the Land of the Wife which was her inheritance . . . and so that the Foundation of


this Matter originally proceeded from the Wife, and it was to make a Jointure to her Husband, and to advance him, and not to be advanced by him. And then to bar her, after the Death of her Husband, from disposing of her Inheritance, would be contrary to all Reason, and it has no Affinity nor Connection with the Matter or Intent of the Statute of 11 H.7.31 Southcote’s and Puttrell’s contention that Margaret Hales “claim[ed] only that which she already had” finds a kind of satisfaction here. Although in Hales v. Petit, the husband’s actions were understood to negate the wife’s relationship with the property in question, in Eyston v. Studd the integrity of the property as the wife’s is upheld. To reach this judgment, the justices in Eyston v. Studd had to resist the assumptions about patriarchy, property, and coverture that Dyer promulgated in his report on Hales v. Petit. Not only could a wife be matched in jointure with her husband, she could do the matching. Presumably they imagined her to have made this jointure at the time of her marriage – as one of her final acts as a feme sole. If this is so, they granted her holding an integrity unaffected by coverture. Margaret Alexander shared the jointure with her husband, but the communal property was, from first to last, her own. The purchase of the husband and wife may, it seems, be called the purchase of the wife. The case calls for Plowden’s commentary precisely because the judgment goes against the common law’s prevailing tendencies, drawing a new “Foundation” from principles coming from outside its “letter.” The final statement of the judgment establishes the case as a cautionary tale for those who would attempt to use the letter of the law in self-interested ways (or for what amounts to a property grab): “a Man ought not to rest upon the Letter of an Act, nor think that when he has the Letter on his Side, he has the Law on his Side in all Cases.”32 No one should count on English jurists to construe statutes such as 11 Henry VII c.20 as Hales had done in Wimbish v. Tailbois and counsel for Eyston urged them to do here, that is, by construing “the Intent of the Makers of the Statute . . . most strongly against these Women.”33 To account for the altered construction of 11 Henry VII c.20’s intent, and the upholding of the integrity of a woman’s “jointure” during coverture, Plowden famously uses the figure of a nut to split the law into parts, shell and kernel, body and soul, to argue that the correct judgment was realized in this case because equity, “the moral Virtue which corrects the law,” at one and the same time its “soul” and “no Part of the Law,” ensured the right interpretation of the law’s “letter.”34

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In its most famous articulation in sixteenth-century English discourse, then, equity is tied not only to women and property issues, but also to the restraint of legal action against women that assumes a predisposition on the part of English justices to protect men’s property interests at the expense of women’s. But what is worth pausing over here, especially for those of us engaged in the enterprise of reading literature in relation to the law, or vice versa, is the paradox of Plowden’s nut. The idea that equity is at one and the same time the law’s “soul” and “no Part” of it suggests that the law is an entity shaped by a force that is simultaneously intrinsic and extrinsic to it. The contention, in short, is that legal discourse achieves equity where it permits itself to be shaped by things outside it. It still has integrity – it is, to borrow a phrase from Hamlet, “bounded in a nutshell”35 – but if the law is always produced, and continually reshaped, by a “moral virtue” that comes from outside it, the discreteness of the nut is a fiction. In what ways, then, might a dramatic fiction help to shape, from a site outside both the law’s “letter” and the venues in which the law is interpreted and applied, the “moral virtue” of equity? And how might a play that explicitly invokes Hales v. Petit and more subtly conflates its two principal aspects in the figure of a woman who drowns in a brook respond to the issues around women and property that arise from it?

“Bounded in a nutshell” In the most explicit manifestation of Hales v. Petit in Shakespeare’s play, his talk about the “three branches” of action in relation to Ophelia’s death, the Clown takes up the possibility that Walsh, Bendloe, Carus, Chomley, Brown, Weston, and Dyer refuse to consider, that Hales may have been of “unsound mind” when he drowned in the River Stour. He takes up, in short, the contention offered by the anonymous reporter of the case (“if a man of unsound mind kills himself, he shall not forfeit his goods or lands”), a contention that seems to haunt Plowden’s commentary on equity: Plowden’s first example of the use of equity in English law is that “when an Act of Parliament ordains that whoever does such an Act shall be a Felon, and shall suffer Death, yet if a Man of unsound Mind, or an Infant of tender Age who has no Discretion, does the Act, they shall not be Felons, nor shall be put to Death.”36 The Clown begins with the assumption that drives the judicial narrative of Hales’s death, the assumption that he killed himself “wittingly.” This contention “argues an act,” to which are attributed “three branches,” and in turn produces the conclusion, which is nothing other than a


reassertion of the premise or starting-point: “Argal, she drowned herself wittingly” (5.1.11–13). The second part of his argument, however, which bears an important trace of Bracton’s discussion of accidental homicide, subverts the rationale in the case by imagining that the water might go to the man. The idea of nonhuman actors – or agents at the scene of death other than the man himself – exonerates the alleged suicide: “if the water come to him and drown him, he drowns not himself” (5.1.18–19).37 The Clown’s conclusion thus reinstates what was so emphatically foreclosed as a possibility in the case: “Argal, he that is not guilty of his own death shortens not his own life” (5.1.19–20). By refusing to attribute intention to the drowned man (“will he nill he, he goes” [5.1.17]), the Clown produces an alternative reading of Hales’s death, one that could have produced an equitable judgment in the case, inasmuch as the court might have used it to refuse to pursue a forfeiture for Hales’s death. At the same time, the Clown offers a taxonomy of action that alters the justices’ terms: the three parts of action are a trio of infinitive verbs, “to act, to do, to perform” (5.1.12–13). Like their corollaries, these verbs untether actions from persons, but to different effect: to generate an idea of action unrestrained by intention rather than an idea of intention that decisively shapes the character of an action. I find here the phenomenon that Luke Wilson locates in Renaissance discourse, “agentless action,” but here I must part ways with Wilson, who contends that any attempt to produce a reading of the play’s relationship to Hales v. Petit would be “totalizing” and “a mistake.”38 In his 1993 article, Wilson seeks to furnish a history for the poststructuralist discourse of “agentless action,” and pursues evidence in Hamlet of what he calls the “hysteresis effect,” or the persistence of a “language of action . . . despite the cessation or disappearance of the intending subject.”39 He suggests the ways in which objective intentions fashioned by legal discourse move into the theatrical sphere, and, specifically, how Hales v. Petit, which depends upon retrospective constructions of action, may affect conceptualizations of action in Hamlet. He argues that the case “conceptualize[s] [intention] as detachable or modular,” along with other legal materials, without the play being able to exert any countervailing shaping force.40 His argument makes Shakespeare’s text a little mad, a container for materials over which it cannot exert control.41 Willy nilly, it goes. Declining to offer any account “of what the play may be said to do,” Wilson attributes to it instead “a resistance to the transformation of schemes of action into political practice of any kind” and a “tactical avoidance of topicality.”42 For a play whose persistent topicality

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witnesses it (amongst other things) giving over a lengthy exchange to the subject matter of the war of the theater and which so conspicuously stages for us, in its representation of the play within, some of the work that plays could do in relation to legal matters, these claims seem odd. (We need only turn to Sir Philip Sidney’s Defence of Poesie and Thomas Heywood’s Apology for Actors for further arguments about the play’s forensic and moral functions with regard to the law.) My assumption is that the writer of a play may be as adept at shaping legal materials to his ends as any lawyer, and that this play makes its own kind of case for how the law ought to work. I suggest that Plowden’s reports, as “Memorials” that recall all the law has said, done, and thought in particular instances, shape a capacious legal imagination, one that may, by altering one of the law’s forms, generate jurisprudence that would preclude or offset the kind of inequities witnessed in Hales v. Petit. The play engages with this imagination, shaping it in turn. We see another instance of this engagement in Gertrude’s narrative of Ophelia’s death, which turns the scene of Ophelia’s death into a field of action in which Ophelia is the only thing that does not act in a scene of inanimate objects become nonhuman actors. Again, it is Bracton to whom Hamlet turns, this time with a difference. In his commentary on accidental homicide, Bracton writes that “stationary things, as a house or a rooted tree, provide neither the cause nor the occasion [for murder], nor do moving things sometimes.”43 But this is what Hamlet imagines in Gertrude’s narrative of Ophelia’s death, a “rooted tree” coming to life to act against Ophelia, its “envious sliver” breaking and plummeting her into the “weeping brook” (4.7.171–73). Shakespeare here mimics legal procedure, plucking from Bracton’s account what he requires to let Gertrude make her case that Ophelia’s drowning was unintentional – and in this case what he makes use of is the idea that Bracton forecloses, the idea that stationary objects cannot act. Here, literary imagining builds upon and exceeds legal imagining. Gertrude’s narrative thus furnishes one corrective to the jurisprudential dynamic in Hales v. Petit: intention is indeed detached from persons, as Wilson claims, but not to remain free-floating and not to be available only to the “language of the law.”44 One of several female advocates in Shakespeare, Gertrude uses the power of narrative to assign intention to objects and exonerate a dead girl of the charge of felo de se. This is not to say that the playwright or the dramatic character co-opt the law, but rather that they co-opt what is equally available to literary and legal discourse, narrative. As part of its function as revenge tragedy, Hamlet responds to the problem of the potential impotence of one discourse or field of action in relation to


another, and the problem of the potential impotence of every subject in relation to the narrative power of the law. It does this most powerfully in the duel scene, where it secures for its central character the capacity “to act, to do, to perform” (5.1.12–13). There, the logic of the law constructs the discursive field in which Hamlet acts, so that Hamlet may act as an “amending hand”: the instrument that ensures the correct functioning of the law.45 In the duel, a crucial exchange of an object occurs, as one of the two instruments prepared by Claudius to bring about Hamlet’s death finds itself in Hamlet’s hand. Hamlet uses that instrument to kill Claudius while suggesting that he himself does nothing at all: “Then venom, to thy work” (5.2.305). In the terms of yet another case reported by Plowden, Saunders’s Case, whose holding was that anyone who put a murderous weapon into circulation with the intention to kill was guilty of the murder of anyone killed by it, when Claudius is killed by the poisoned sword that he himself has put into circulation, Claudius kills Claudius.46 But the duel also compensates for the jurisprudence in Hales v. Petit by co-opting that aspect of the case to which the gravedigger refers, its division of action into three parts. The action that gets hewn into parts in the fencing match is the action of Hamlet’s death, which begins when Laertes strikes Hamlet with the envenomed sword, but is not finally complete until Hamlet breathes his last “O.” From the moment that he is struck by the envenomed sword, Hamlet inhabits an unusual ontological space and a charged legal one: Claudius has killed him, but he is not yet dead. For this period of time, the long middle of his death, Hamlet is, like his father’s ghost and like Hales after he has entered the river, on uncertain ground in terms of being: he is a dead man walking. In this gap of time in which he is both alive and dead, Hamlet exploits the opportunity to act from a position in which the law has no hold on him. He can make use of a weapon that finds itself in his hand, and use that weapon to commit certain actions, without there being anyone, in the law’s terms, there to perform them. The envenomed sword strikes Claudius, but this object, in terms of the law’s own constructions, does the work of the killing despite the intervention, the action, of the dead man’s hand. The scene of death over which the justices in Hales v. Petit exerted such tremendous force, ascribing felonious intention to a man who may have committed no voluntary action at all, is here converted into an instance of action for which there is an actor and yet no one other than the person killed to whom intention can be ascribed. For the character, this may be the mootest of moot points – he is about to gasp his last breath anyway – but for spectators it is something else

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entirely. The satisfaction that the audience experiences watching the actor playing Hamlet finally achieve what he set out to do some two hours or so earlier in the traffic of the stage is tied up with another: the satisfaction of watching the players reclaim narrative control over a subject’s actions and identity from those empowered by their “office” to exert such control. From death, Hamlet wrests life, and from a discourse meant to constrain his identity and actions, he wrests agency. Those spectators in the Globe who knew their law would have understood that the fantasy of agency being enacted before them was a fantasy made possible by the law’s own constructions of the relationship of time, action, intention, and legal identity, but for every spectator in the Globe the moment in which Hamlet plunges his sword into the king is a readily intelligible fantasy of action without restraint by the law, the satisfaction of which they experience at the moment it occurs even though they may not be able to explain why until afterwards. Hamlet acts not only from the position of death, but for the dead – and not only the dead in the form of his father: the character need not intend anything for the effects of his actions to be felt by those who experience another form of death – those who were construed, by virtue of their sex, as “dead in law.”47 When he acts in the final scene, he acts for all those who are “actionlesse.”48 The paradox of his action in the final scene – Hamlet acts without culpability not despite the law, but because of it – may be understood in relation to the paradox of coverture, as T.E. imagines it. A woman can find ways to make coverture – that fiction of her disability premised on the law’s need to protect her – work for, rather than against, her, T.E. suggests, in a discussion of what a woman might do if faced with the problem of a husband who beats her. If she dares to fight back, she may make the fiction of her disablement at law, premised on her need to be protected by it, provide her with actual cover or protection from her husband. If the husband pursues any action against her, he would have to give in sureties for her good behavior. The surety that is supposed to ensure her good behavior would in fact require his, for if he beats her again, and she returns the blows, he would find himself in her usual position: “for what action can he haue?” T.E. demands.49 He would now experience a certain impotence (he can have no action without losing his sureties), and the otherwise “actionlesse woman” would have found one way to make the law act for her. The satisfaction of this scenario is pretty limited, we might contend, but that would be to miss the point, which is that both the play and T.E. imagine ways in which the law’s existing mechanisms or principles can be made to work for subjects, rather than against them. The paradox helps us


understand the kind of symbolic compensations the play may furnish to audience members who are disabled by the law because of their sex or who are conscious of their capacity to be so disabled, no matter what their sex. The idea that Hamlet occupies, in the final scene, a position associated with women is deepened by Hamlet’s call to Laertes, at Ophelia’s grave, that they both be “buried quick” with her (5.1.269). As it does with Hamlet’s earlier joke that the legal fiction that “man and wife is one person” makes Claudius his mother (4.3.50–51), the play challenges the primary fiction by which women are disabled at law, inverting its premises, to imagine men as covered. Hamlet’s proposed burial not only aligns him, symbolically, with those who are covered, incapacitated, actionless, but sees the character who has accused himself of being no more capable than a woman embracing the position of a woman at her most incapable. That character is crucial. If character is, as Stephen Orgel has suggested, lines on a page, this dramatic character marks his character for Claudius, and us, with his own marks on a page, in the calling card that Claudius receives at the end of act 4: “High and mighty, you shall know I am set naked on your kingdom. . . . ’Tis Hamlet’s character. ‘Naked!’ ” (4.7.42–49).50 Hamlet not only acts, in the final instance, from a position associated with women; he acts as a character marked, in his nakedness, by divestiture. His subsequent attitude is consistently one of surrender: he agrees to take part in the fencing match despite his misgivings, yielding to it with “let be” (5.1.201–02). With this “let be,” he yields to that which he has aggressively resisted throughout, the sense that there are forces outside him that he cannot control, and that could subject him to “bad dreams,” declaring himself ready for whatever may come. His remarks may be cryptic, he may not himself know what he means, but the person who finds himself at a juncture where he can finally take action against the man who killed his father is at that juncture because he has so thoroughly divested himself of self-interest that he is prepared to commit the self-offense of making himself available to be killed in action that is a thinly disguised trial by battle. This divestiture distinguishes him from any serjeant-at-law or justice who permits any investment, whether it be ideological or an investment in the authority that accrues to his “office,” to shape or determine how he reads or applies the law. It is as necessary to correct functioning of the law as that “necessary ingredient” of the law, the “moral virtue” of equity. And inasmuch as Hamlet’s earlier remarks about the “frailty” of women link him with Hales, his alignment with Ophelia compensates not only for his own

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earlier misogyny in the play, but also for the various forms of misogyny that have informed English jurisprudence. In Hamlet’s alignment with women and his symbolic divestiture, we might also see an instance of the divestiture of the subject currently being imagined in left legal critique.51 Hamlet’s desire to be “buried quick” with Ophelia aligns him with a character whose final actions on stage witness her, as the girl who has nothing to give, paradoxically constituting herself as the gesture of giving, by distributing flowers to others. Her actions confound the law’s assumption that identity depends upon the degree to which a subject is propertied or has the capacity to become so: that is, the degree to which he or she has the power to seize or be “seized” of property real and personal. Hamlet furnishes us, in the figure of Ophelia, with a woman utterly depropertied (first by her father, then by her madness), not so that it can subsequently vest her or any other female character in property (the appeal of being an “imperial jointress” [1.2.9] makes Gertrude an agent in the tragedy), but so that Hamlet, defining himself as “naked” and choosing a figurative divestiture that links him with Ophelia, may embody a disinterestedness crucial to equitable workings of the law. Informing equity, this disinterestedness would do more than “soften the Severity of the Text” of the law.52 It challenges all forms of propertying, all vestitures, and thus any ideology that would make it possible for one kind of person to be any more “spacious in the possession of dirt” (5.2.89) than another. Ophelia’s act of giving and Hamlet’s figurative divestiture are kin, and as acts that speak of a surrender of identity in the law’s terms suggest the possibility of a new kind of life figured for us in Laertes’ prayer for Ophelia: “from her fair and unpolluted flesh / May violets spring!” (5.1.229–30). As James Calderwood has suggested, this is a play that attributes a great deal of vitality to death;53 here, in the idea of violets springing from Ophelia’s dead flesh, it may give life to that which the common law renders dead. As Peter Goodrich has argued so persuasively, the common law’s suppression of an alternative genealogy of law in its repression of the “feminine” finds expression in a “space within the institution” associated with “images, flowers, ornaments, aesthetic judgments, tastes, emotions, lifestyles and fantasies, a space consonant with all of those disciplines and discourses that doctrine and law conceived to be incidental, accessory, merely rhetorical, contingent or other to the tradition (ius non scriptum) or established practice of law.”54 The space of the theater, so often construed, in postmodern discourse, as “dead” in relation to other domains, becomes a space in which the “dead flesh” of a girl is imagined as the material for a potential efflorescence – which we


might imagine as a flowering of the equity that would be possible if the common law expunged from itself the prevailing tendency, the predisposition, to disable women. Plowden’s nut may have traveled into Shakespeare’s text, but not to “lodge blindly” there.55 In a space outside the law, in a character “bounded in a nutshell,” we find what the law so urgently requires: the divestiture of self-interest crucial to the realization of equity in legal interpretation or jurisprudence. Hamlet’s figurative divestiture makes possible right action under the law or the right action of the law, action taken according to and motivated by equity, and achieves this not only because it is disinterested, but because Hamlet volunteers to cover himself – volunteers to occupy the position of woman under the law. As revenge tragedy, the play produces various forms of symbolic compensation for sixteenth-century jurisprudence, but, more important, shapes an idea of the character that would make possible a flowering of equity more striking than that realized in the “sentence” of Eyston v. Studd. Emptied of interest and aligned with the “actionlesse,” Hamlet’s character is that of the “amending hand,” the discursive force that writers of both legal and dramatic narrative may shape.

Notes 1. William Shakespeare, The Tragical History of Hamlet Prince of Denmark, 5.1.12, ed. A. R. Braunmuller (New York: Penguin, 2001). With one exception noted below all references to Hamlet are to this edition. 2. Luke Wilson’s “Hamlet, Hales v. Petit and the Hysteresis of Action,” English Literary History 60:1 (Spring 1993), 17–55, is the one notable exception. I take up Wilson’s argument later in this essay. 3. Dyer’s report is available in print in The Lost Notebooks of Sir James Dyer, ed. J. H. Baker, vol. 1 (London: Selden Society, 1993). 4. Edmund Plowden, Commentaries, or Reports of Edmund Plowden (London, 1761), p. iv. On the radical nature of Plowden’s reports, see Geoffrey Parmiter, Edmund Plowden: An Elizabethan Recusant Lawyer (London: Catholic Record Society, 1987); and Lorna Hutson, “Not the King’s Two Bodies: Reading the ‘Body Politic’ in Shakespeare’s Henry IV, Parts 1 and 2,” in Rhetoric and Law in Early Modern Europe, ed. Lorna Hutson and Victoria Kahn (New Haven, CT: Yale University Press, 2001), pp. 166–98. 5. Plowden, Hales v Petit, p. 259. 6. Plowden, Hales v. Petit, p. 260. 7. On the retrospective attribution of felonious intention to Hales, see Wilson, “Hysteresis,” 31. 8. Plowden, Hales v. Petit, pp. 216–62. 9. Plowden, Hales v. Petit, p. 263. 10. See Parmiter, Edmund Plowden, p. 118 n. 37. 11. Plowden, Hales v. Petit, p. 256.

206 Carolyn Sale 12. 13. 14. 15.

16. 17. 18. 19. 20. 21. 22. 23.

24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

36. 37.

38. 39. 40. 41. 42. 43. 44. 45. 46.

Plowden, Hales v. Petit, p. 264. Baker, Lost Notebooks, p. 76. Baker, Lost Notebooks, p. 73. Henry Bracton, On the Laws and Customs of England, ed. George Woodbine, trans. Samuel E. Thorne, vol. 2 (Cambridge, MA: Belknap Press with Selden Society, 1977), p. 384. Baker, Lost Notebooks, p. 73. Baker, Lost Notebooks, p. 74. William Holdsworth, A History of English Law, vol. 3 (1908; rpt. London: Methuen & Co., 1977), p. 524. Baker, Lost Notebooks, p. 74. Holdsworth, History, p. 523. Baker, Lost Notebooks, p. 75; Baker, Oxford History, p. 634, respectively. Plowden, Hales v. Petit, p. 259. De Termino Michaelis (London: Richard Tottel, 1570), f. xr. The text in Law French reads “la feme ne poet auer chatell durant le couerture” and “le baron et sa feme ne puissant prendre les profits en comen.” Baker, Lost Notebooks, p. 74. T.E., The Lawes Resolutions of Womens Rights: or, the Lawes Provision for Woemen (London, 1632), p. 315. Statutes of the Realm, vol. 2 (London: Dawsons of Pall Mall, 1810), p. 583. Plowden, Wimbish v. Tailbois, p. 50. Plowden, Eyston v. Studd, pp. 465–67. Plowden, Eyston v. Studd, p. 464. Plowden, Eyston v. Studd, p. 464. Plowden, Eyston v. Studd, p. 464. Plowden, Eyston v. Studd, p. 464. Plowden, Wimbish v. Tailbois, p. 58. Plowden, Eyston v. Studd, pp. 465–66. The line “O God, I could be bounded in a nutshell, and count myself a king of infinite space – were it not that I have bad dreams” occurs only in the Folio. See Hamlet 2.2.254, in The Riverside Shakespeare, ed. G. Blakemore Evans (Boston, MA: Houghton Mifflin, 1974). Plowden, Eyston v. Studd, p. 465. On objects as nonhuman actors in Renaissance discourse, see Julian Yates, Error, Misuse, Failure: Object Lessons from the English Renaissance (Minneapolis, MN: University of Minnesota Press, 2003). Wilson, “Hysteresis,” 43. Wilson, “Hysteresis,” 19. Wilson, “Hysteresis,” 31. Wilson writes, for example, that “there is a limit to the coherence of a text constituted by such oddly juxtaposed discursive elements” (44). Wilson, “Hysteresis,” 42. Bracton, Laws and Customs, p. 384. Wilson, “Hysteresis,” 40. The phrase is from Plowden’s favorite aphorism, “Blessed be the amending hand.” See Parmiter, Plowden, p. 164. The allusion comes with the talk of the arrow: “For if a Man of Malice prepence shoots an Arrow at another with an Intent to kill him, and a Person


47.

48. 49. 50.

51. 52. 53. 54. 55.

to whom he bore no Malice is killed by it, this shall be Murder in him” (Plowden, Commentaries, p. 474). Wilson (“Hysteresis,” 31–32) notes the importance of Saunders’ Case for legal constructions of malice prepense. This phrase for civil death of the married woman and other persons (such as monks) is from Hardships of the English Laws in Relation to Wives (London: J. Roberts, 1735), p. 51. T.E., Lawes Resolutions, p. 129. T.E., Lawes Resolutions, p. 128. Stephen Orgel, “What is a character?” in The Authentic Shakespeare and Other Problems of the Early Modern Stage (New York: Routledge, 2002), p. 8. For another discussion of this and Hamlet’s other letters, see Jonathan Goldberg, “Hamlet’s Hand,” in Shakespeare’s Hand (Minneapolis, MN: University of Minnesota Press, 2003), pp. 105–31. See Wendy Brown and Janet Halley, eds, Left Legalism/Left Critique (Durham, NC: Duke University Press, 2002). Plowden, Eyston v. Studd, p. 466. James Calderwood, Shakespeare and the Denial of Death (Amherst, MA: University of Massachusetts Press, 1987), p. 101. Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley, CA: University of California Press, 1995), p. 13. The phrase is Wilson’s, “Hysteresis,” 38. He uses it to suggest the inertness of the play in relation to the elements of legal discourse that find place within it.

12 Macbeth: Absolutism, the Ancient Constitution, and the Aporia of Politics Peter C. Herman

Political interpretations of Macbeth (1606) have, it would seem, reversed themselves over the past few years. Whereas most earlier critics (and truth be told, some today) regard the play as complimenting James and endorsing the theory of absolute kingship,1 more recent students of the play, in particular Karin S. Coddon, David Scott Kastan, Rebecca Lemon, David Norbrook, and Alan Sinfield see Macbeth as more contestatory, as exposing the illogic of absolutism and demystifying absolutism’s providentialist rhetoric.2 These interpretations follow from the more general contemporary understanding of the Scottish play as consistently and frequently blurring ostensibly discrete categories.3 Yet Macbeth’s political critics are oddly reluctant to see this work as deliberately provocative. Kastan, for example, states that “Shakespeare has chosen historical matter determinedly resistant to the story he apparently wants to tell” (my emphasis),4 implying that the play’s complexities are somehow inadvertent or contrary to Shakespeare’s intentions. I propose, however, that such reticence is unnecessary. Shakespeare, I propose, intended to raise in Macbeth precisely the complex and contradictory mélange of resonances present in such other roughly contemporaneous plays as Measure for Measure (1604), All’s Well That Ends Well (1603–04), Troilus and Cressida (1602), and King Lear (1604–05), and the play’s uncertainties reflect James I’s importation of absolutism into the English polity and the resulting conflict over rival theories of sovereignty. To be sure, Macbeth also draws on the tensions resulting from the Gunpowder Plot,5 and the major battles over supremacy are a few years in the future. But, as I will show, the issues addressed in, say, the 1610 Petition of Right against Impositions (can the Crown impose a tax without Parliament’s 208

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assent?) are very much present from the start of James’s reign, and Shakespeare uses Macbeth to reflect upon the steadily escalating conflict between Jacobean absolutism, predicated on a monarchy that is above the law of the land, and the traditions of English liberty signified by the term the Ancient Constitution, in which the monarch follows and is subject to the law.6

I The Trew Law of Free Monarchies: or The Reciprock and Mutual Duetie Betwixt A Free King and His naturall Subjects (Edinburgh, 1598),7 reprinted at least four times in 1603,8 must have stirred an ominous sense of foreboding in many of James’s new subjects. In the “Advertisement to the Reader,” the king declares that his purpose is “to teach you [the subject] the right-way,” and the profit will be “to frame all your actions according to these grounds,” thereby “reaping profit to your selves” and turning the king’s “paine into pleasure.” James says nothing about his obligations to his subjects, and that is because James does not consider his relationship with subjects as a partnership among equals or nearequals. Instead, James infantilizes the nation by equating the ruler to a father and the ruled to children: “By the Law of Nature the King becomes a naturall Father to all his Lieges at his Coronation: And as the Father of his fatherly duty is bound to care for the nourishing, education, and virtuous government of his children; even so is the king bound to care for all his subjects.”9 Needless to say, children (outside the realm of Shakespearean comedy, at least) do not question the authority of the father. Dismissing the provisions of mixed monarchy, James argued in The Trew Law that kings can make law without the advice of Parliament or any other “subaltern judiciall seate.” Even though James did not have England particularly in mind when he wrote The Trew Law, he included his new country among the “free Monarchies” whose monarch remains “free” from legal restraint.10 However, James’s view of monarchy ran squarely against English theory and practice.11 The English tradition of kingship is best described by Sir John Fortescue in his late fifteenth-century treatise, In Praise of the Laws of England: [A]mong the civil laws there is a famous sentence, maxim or rule, which runs like this, “what pleased the prince has the force of law.” The laws of England do not sanction any such maxim, since the king of that land rules his people not only royally but also politically, and

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so he is bound by oath at his coronation to the observance of his law.12 Nor can the English monarch “change their laws, nor make new ones, without the concession or assent of his whole realm expressed in his parliament.”13 Sir Thomas Smith, in De Republica Anglorum (first published in 1583) calls absolute kingship in peacetime “very dangerous,” and asserts “that the most high and absolute power in the realme of England, is in the Parliament” because that is where the prince and representatives of the entire nation together “abrogateth old lawes, maketh new, giveth orders for thinges past, and for thinges hereafter to be followed.”14 While the relations between Elizabeth and her parliament were sometimes testy,15 the late queen never used her speeches to Parliament to make the sort of claims James did for the power of the monarchy, and in the printed version of her final speech to Parliament, she explicitly rejected the absolutist tenet that the monarch’s will is law: “You must not beguile your selves, nor wrong us, to think that the glosing lustre of a glistering glory of a Kings title may so extol us, that we think all is lawful what we list” (my emphasis).16 The clash between James’s conception of the monarchy and the constraints assumed by the Ancient Constitution was hardly an abstract, arid debate. While the Ancient Constitution, being unwritten and subject to “custom,” was necessarily malleable and subject to revision, before James became the king of England the debate took place within mutually understood boundaries. James, however, stepped outside those boundaries almost from the moment he arrived in England, and his indifference to English legal traditions raised concerns about what the future might hold. On April 21, 1603, while on his way from Scotland to be crowned in London, the new king and his entourage stopped at Newark in Lincolnshire, where a thief thought to take advantage of the crowds but was apprehended “doing the deed. . . . his Majestie hearing of this nimming gallant directed a warrant presently to the recorder of New-warke, to have him hanged, which was accordingly executed.”17 The problem, of course, is that James had the thief executed without the benefit of a trial.18 In short, James acted outside, not in accordance with, English law. News of this incident traveled fast, and at least one courtier, Sir John Harington, understood full well the implications of this rash act: “I shall not hastily put forth for a new Master. I heare oure newe Kinge hath hangede one man before he was tryed; ’tis strangely done; now if the wynde blowethe thus, why may not a man be tryed before he hath offended?”19 Harington chose rustic, bibulous retreat,20 but the


House of Commons had no such option, and the fencing between Jacobean absolutism and English liberties was marked in the 1604 Parliament’s first moments.21 In his accession speech, James once more describes the relationship between king and country as that between master and unquestioning subordinate: “What God hath conjoined then, let no man separate. I am the Husband, and all the whole Isle is my lawfull wife; I am the head, and it is my body; I am the Shepherd, and it is my flocke.”22 To be sure, James does try to acknowledge English liberties in this speech, asserting toward the end that while the tyrant thinks “his Kingdome and people are onely ordained for satisfaction of his desires and unreasonable appetites; The righteous and just King doeth by the contrary acknowledge himselfe to bee ordained for the procuring of the wealth and prosperitie of his people.”23 Yet he also asserts that “the Head is ordained for the body and not the body for the Head.”24 In his response, the Speaker of the House, Sir Edward Phelips, initially seems to accept James’s analogies. The king rules England, Phelips declares, not as a “stepfather, by Match or Alliance, but as a true tender Father, by Descent of Nature, to whom we Your Children are truly naturalized in our Subjection, and from whom in our Loyalty we expect unto us a Paternal Protection.” Yet as the speech progresses, it becomes increasingly evident that Phelips is merely being polite, for the thrust of his speech delivers a lesson in English parliamentary practice. Implicitly taking issue with the new king’s assertion in The Trew Law that kings can make law without Parliament, Phelips asserts that “The Ark of Government of which [this] Kingdom hath ever been steered by the Laws of the same; and these distributed to the Jurisdiction of several Courts of Justice; the Commanding and Imperial Court whereof is this Your Majesty’s Great and High Court of Parliament; by whose Power only new Lawes are to be instituted, imperfect Laws reformed, and inconvenient Laws abrogated.” According to the English practice of mixed monarchy, laws are made by the agreement of all three parts of government: “no such Laws can either be instituted, reformed or abrogated, but by the Unity of the Commons Agreement, the Lords Accord, and Your Majesty’s Royal and Regal Assent.”25 Then, rather amazingly, Phelips corrects the new king’s metaphor of the body politic, his claim that “the Head is ordained for the body and not the body for the Head” (because this text is not commonly available, I will quote it at length): be pleased . . . to entertain with Your gracious Aspect a comparative Resemblance between a Body by Nature and the Body Politick of this

212 Peter C. Herman

Your Majesty’s Commonwealth, figured and drawn out of the Rules of Law; whereof, as the Natural Body of the One is framed of Four principal Parts, namely, of a Head, of a Body, of a Life, and of a Soul; so is the Politick Body of the other compounded of like Four essential Members; as of a Head, of a Body, of a Life, and of a Soul: And as, by the Disbranching of any One Particular from the natural Body, the Perfection of the Whole is dissolved; so, by the dismembering from the Politick Body of any One of the Four Politick Parts, the Glory of the Whole is disrooted. This Politick Head now is . . . Your most honoured and best deserving Self; this Body Politick now is, and still desire to be, Your loyal and faithful Subjects; this Politick Life now is, and so well deserves to be, Your Highness’ common and positive Laws; this Politick Soul now is, and so of Necessity must be, Your absolute Justice in the true Distribution of the same. And as the natural Head of the One . . . cannot be supported without his natural Body, nor the natural Body without his natural Life, nor the natural Life breathe without the Soul; no more can the Politick Head of the other (although the supreme and commanding Part) stand secure without his Subjects.26 Whereas James regards the head, that is, the monarchy, as supreme, Phelips sees law, monarchy, subjects, and justice as interrelated and interdependent, all equally important, all equally essential, none predominating. Unfortunately, James did not heed the lesson, and he very quickly blundered into another controversy with the House that further alarmed its members. James demanded that the case of Fortescue v. Goodwin, which concerned a disputed election result, be resolved by the Court of Chancery rather than, as was traditional, Parliament.27 The precise details are less important, however, than the terms of James’s request. As recorded in the Journals of the House of Commons, James said that “he had no Purpose to impeach their Privilege: But since they derived all Matters of Privilege from him, and by his Grant, he expected they should not be turned against him.”28 In other words, James asserted that all authority resides in the monarch, and that Parliament has no authority other than that granted by the monarch, a position that most certainly impeached the traditional privileges of the House, and the House knew it. As nobody much cared who properly won the election, the case now centered on the greater issue of maintaining English liberties and the independence of Parliament in the face of monarchic encroachment: Moved, and urged by one, touching the Difference now on Foot between the King and the House, That there is just Fear of some great


Abuse in the late Election: that, in his Conscience, the King hath been much misinformed; and that he had too many Misinformers; which, he prayed God, might be removed or lessened in their Number: That now the Case of Sir John Fortescue and Sir Francis Goodwin was become the Case of the whole Kingdom: that old Lawyers forget, and commonly interpret the Law according to the Time: That, by this Course, the free Election of the Country is taken away, and none shall be chosen but such as shall please the King and Council. Let us therefore, with Fortitude, Understanding, and Sincerity, seek to maintain our Privilege; which cannot be taken or construed, any Contempt in us, but merely a maintenance of our common Right, which our Ancestors have left us, and is just and fit for us to transfer to Posterity.29 Interestingly, the members also returned to the disputed metaphor of the body politic: “Objec. We (they say) are but half of the Body; and the Lords are the Parts nearest the Head. Answ. Nothing ascends to the Head, but by the Breasts, etc.”30 While a compromise settled the question of who won the election, the constitutional issue did not go away. Tensions continued to rise, so much so that in June 1604, the Commons decided to confront the distrust head on. Thus they created a remarkable document, the “Form of Apology and Satisfaction.” While couched in the form of extreme compliment, the “Apology” begins by telling James that wise though he may be, he does not understand England:31 Howbeit, seeing no human wisdom, how great soever, can pierce into the particularities of the rights and customs of people or of the sayings and doings of particular persons but by tract of experience and faithful report of such as know them . . . , what grief, what anguish of mind hath it been unto us at some time in presence to hear, and so in other things to find and feel by effect, your gracious Majesty (to the extreme prejudice of all your subjects of England, and in particular of this House of the Commons thereof) so greatly wronged by misinformation as well touching the estate of the one as the privileges of the other, and their several proceedings during this Parliament. The king’s position in the matter of Fortescue v. Goodwin, that is, “That we held not privileges of right, but of grace only, renewed every Parliament by way of donature upon petition, and so to be limited,”32

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unambiguously leads, as the document states: directly and apparently to the utter overthrow of the very fundamental privileges of our House, and therein of the rights and liberties of the whole Commons of your realm of England which they and their ancestors from time immemorable have undoubtedly enjoyed under your Majesty’s most noble progenitors, we, the knights, citizens, and burgesses of the House of Commons assembled in Parliament, and in the name of the whole commons of the realm of England, with uniform consent for ourselves and our posterity, do expressly protest, as being derogatory in the highest degree to the true dignity, liberty, and authority of your Majesty’s High Court of Parliament, and consequently to the rights of all your Majesty’s said subjects and the whole body of this your kingdom: And desire that this our protestation may be recorded to all posterity.33 We are now, I think, in a better position to apprehend the full complexity of the political situation in 1606, the year Shakespeare wrote Macbeth. On the one hand, one cannot underestimate the degree of prestige accorded the English monarch. When James “commanded, as an absolute King, that there might be a Conference between the House and the Judges” over the election controversy, one member of the House “stood up, and said, The Prince’s Command is like a Thunderbolt; his Command upon our Allegiance like the Roaring of a Lion: To his command there is no Contradiction.”34 And the trauma of the Gunpowder Plot resulted in a great outpouring of loyalty toward James and revulsion toward the plotters. But, on the other hand, gratitude for the government’s safety (we should remember that the plotters intended to blow up Parliament as well as the king)35 did not erase the wrenching unease caused by James’s absolutism, and the Commons explicitly warned James that his absolutist policies were causing a “great alienation of men’s hearts.”36 While nobody was calling for the king’s head (yet), a steadily rising number understood that James’s insistence on royal supremacy threatened the fundamental liberties of the English nation, and nobody knew quite what to do.

II The political incertitude of James’s early reign could be said to find its objective correlative in the highly uncertain dramatic language and action of Macbeth. “Fair is foul, and foul is fair, / Hover through the fog


and filthy air,”37 the Weird Sisters declaim, in an accurate foreshadowing of the rest of the play. Macbeth and “The merciless Macdonwald” cling together “as two spent swimmers” (1.2.8–9), thus blurring the distinctions between them.38 Before murdering Duncan, Macbeth sees a dagger before him which he tries to clutch, only finding yet more confusion: “I have thee not, and yet I see thee still” (2.1.36), unsure whether the dagger constitutes a genuine vision or “a false creation, / Proceeding from the heat-oppressèd brain” (2.1.40–41). Macbeth then hears a bell that will “summon [Duncan] to heaven or to hell” (2.1.65) – it is not clear which. Nothing in this play is certain; nothing is sure. Absolutes have collapsed into ambiguities.39 But while the political uncertainties generally subtend the play’s “settled unsettledness,”40 in Harry Berger’s phrase, the ambiguation of certainties also has very specific applications. As David Norbrook has observed, Shakespeare sets this play at “a key turning point” for the Scots monarchy generally and the Stuart line particularly,41 for it is at this point in Scots history that the line of kings ending (culminating?) in James I of England begins. Even further, the story, as invented in 1526 by Hector Boece,42 of Macbeth and Banquo happening upon three supernatural women who prophesy that the former will be king, the latter the father of kings, constitutes the founding moment for the Stuart dynasty and served to confirm James’s sense that his line has supernatural authority. This legend received wide circulation in England when Francis Thynne incorporated Boece’s work into The Historie of Scotlande (1577):43 Shortly after happened a straunge and uncouth wonder, whiche afterwarde was the cause of muche trouble in the realme of Scotlande as ye shall after heare. It fortuned as Makbeth & Banquho journeyed towarde Fores, where the king as then lay, they went sporting by the way together without other companie, save only themselves, passing through the woodes and fieldes, when sodenly in the middes of a launde, ther met them .iii women in straunge & ferly apparel, resembling creatures of an elder worlde, whom when they attentively behelde, wondering much at the sight, The first of them spake & sayde: All hayle Makbeth Thane of Glammis (for he had lately entred into that dignitie and office by the death of his father Synel.) The .ii of them said: Hayle Makbeth Thane of Cawder: but the third sayde: All Hayle Makbeth that hereafter shall be king of Scotland. [Then Banquo asks about his future.] Yes sayeth the first of them, wee promise greater benefites unto thee, than unto him, for he shall reygne in deede, but with an unlucky end: neyther shall he leave any issue

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behinde him to succeede in his place, where contraily thou in deede shalt not reygne at all, but of thee those shall be borne which shall governe the Scottishe kingdom by long order of continuall discent. (sig. Q2v)44 Significantly, the 1577 Historie of Scotlande describes the three women as strange and “ferly,”45 meaning, according to the OED, “something wonderful, a marvel” (def. B.1), an association emphasized by their resembling creatures of an “elder worlde,” “elder” likely being a cognate for “eldritch,” meaning, again according to the OED, “uncanny” or “connected with elves.”46 The accompanying woodcut (the only one not used elsewhere in the Historie or Holinshed’s Chronicles, and so a good guide for how the editors wanted their reader to read this scene47) and marginal note together emphasize how these women are spirits of another sort. While the text has them as “three women supposing to be the weird sisters or fairies,”48 the reader sees three well-dressed, elaborately coiffed, attractive Elizabethan ladies whose collective attire seems to mark them as upper class. There is nothing remotely frightening or ominous about them. This legend also formed the basis of Dr. Matthew Gwinn’s entertainment for King James upon the occasion of his visit to Oxford in 1605, in which “three young youths, in habits and attire like Nymphs,”49 “foretold to thy [Banquo’s] descendants an endless empire,” and they predict the same for James: “We three sisters in like manner foretell the same fates for thee and thine.”50 According to a contemporary account, “the King did very much applaude” Gwinn’s “conceipt.”51 This legend appealed to James because he firmly believed that lineal descent conferred authority as well as legitimacy. Consequently, The Trew Law asserts that “the lineall succession of crowns” started by God makes rebellion unlawful,52 and the king’s supporters enthusiastically endorsed this position. The Lord Chancellor, Ellesmere, for instance, noted that James was justly proud of “the continued line of lawfull discent, as therein he exceedeth all the Kings that the world now knoweth.”53 That lineal descent, as stated by Boece as well as other historians and popularized by The Historie of Scotlande, starts with the prophecy to Banquo and Macbeth.54 Shakespeare’s treatment of this legend is, therefore, of central importance to understanding the politics of his play. But Shakespeare neither fully endorses nor fully subverts any political ideology. Instead, he offers two opposing interpretations of the legend without settling on either one. Certainly, Shakespeare appears to “dramatize the Stuart Myth . . . that James had constructed and pushed as one part of his cult of divine


right.”55 The “Weird Sisters,” as Macbeth calls them in his letter to his wife (1.5.6), repeat almost verbatim the prophecies in The Historie of Scotlande and in Gwinn’s Tres Sibyllae. Furthermore, the “show of eight kings” not only repeats James’s desire that the Stuart line “will stretch out to th’crack of doom” (4.1.117) – the proposed union of England and Scotland, he will tell Parliament, will enable James and his “posteritie (if it so please God) [to] rule over you to the worlds ende”56 – but also ends with the last king holding “a glass in his hand,” as the stage direction has it. The significance of the “glass” goes beyond catching “the countenance of the king,”57 for the mirror in the early modern period was not invoked for its reflective qualities. Rather, the reflection in the mirror often signified an almost neoplatonic version of the truth. “The object viewed in the mirror is almost never the self,” Debora Shuger informs us; rather, a mirror provides “a small-scale version of a large subject.” That is to say, the object in the mirror is not a reflection so much as “an exemplary image.”58 To give two examples from Shakespeare, Henry V is a “mirror of all Christian kings” (Henry V 2.Chorus.6) and the Earl of Salisbury is a “mirror of all martial men” (1 Henry VI 1.4.75). “These are not quite platonic mirrors,” Shuger continues, “but they are, as it were, platonically angled, tilted upwards in order to reflect paradigms rather than the perceiving eye.” ’59 Therefore, to conclude the show of eight kings with a “glass” reflecting James’s image goes beyond compliment, for the image in the glass would tilt upward, to use Shuger’s phrase, toward a near-platonic ideal of monarchy itself. The compliment is not so much in the reflected image, but in the conflation of that image with a perfect image of monarchy. Shakespeare, in other words, dramatizes not just the king, but the idea of a king. And yet Shakespeare departs in one key respect from Boece, the Historie, and Gwinn.60 He replaces the “.iii women in straunge & ferly apparel, resembling creatures of an elder worlde,” or as the reports of Gwinn’s play have it, “three young youths, in habits and attire like Nymphs,”61 with three witches, “so withered and so wild in their attire, / That look not like th’inhabitants o’th’earth / And yet are on’t” (1.3.40–42), who try to silence Banquo by putting a “chappy finger” to their “skinny lips” (1.3.44, 45), and whose very sex appears indeterminate: “You should be women, / And yet your beards forbid me to interpret / That you are so” (1.3.45–47). They are, as Macbeth will say later in the play, “secret, black, and midnight hags” (4.1.48–49), not three elvish prophetesses, as in Boece, Holinshed, and Gwinn. The alteration reinforces a general incertitude, their very presence emphasizing, as Stuart Clark notes, “the sense of obscurity, uncertainty

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and dissimulation which clouds the subsequent action.”62 Yet the effect is also specifically political, for by the figures of the witches Shakespeare sets in motion two mutually exclusive interpretations of James and his genealogy. Certainly, the play reproduces, and by doing so, seems to confirm, Jacobean absolutism by dramatizing the originary moment of the Stuart dynasty. One can only imagine the extraordinary hush that fell over the room at this moment when James’s own image appeared before the audience, the last in the show of eight kings. Also, it is very likely that the staging of the scene when it was performed at the Globe or at court was overtly complimentary to James. Yet at the same time, by altering a detail so important that nobody familiar with the story could miss it, Shakespeare casts a deep shadow over this concatenation of prophecy and genealogy.63 James’s future is not predicted by three rather dignified faeries or nymphs, women who may even be the Fates, but by three obviously Satanic hags, and the switch from a positive to a negative origin effectively taints the entire line and the ideologies propounded by that line. Shakespeare, however, neither entirely undermines James’s absolutism nor unqualifiedly celebrates it. The legend of divinely, or at least, supernaturally authorized Stuart lineal descent enjoyed wide and deep support, as did the institution of monarchy itself. “The name of king [is] a sweet name,” declared the House of Commons; there is a “Plenitude of Power in it:–A name, which God taketh upon him.”64 Yet it seems unlikely that the alteration of this legend’s unimpeachable source, fairies or the Weird Sisters, to the highly problematic one, the “midnight hags,” would have gone unnoticed. Shakespeare thus creates a tension-ridden dialectic where none existed before: the hags unsettle the legitimacy of James and Jacobean absolutism, while the extraordinary potency of monarchy as realized by the figure of the king himself seemingly recuperates and occludes the source of its power. The matter is left suspended.

III Shakespeare gives the constitutional issues of this play the same treatment. The nub of the controversy is this short exchange between Ross and MacDuff: ROSS:

Then ’tis most like The sovereignty will fall upon Macbeth. MACDUFF: He is already named and gone to Scone To be invested. (2.4.29–32)


The fact that some indeterminate body “names” Macbeth king and he has “gone to Scone”65 to receive the crown sets in motion two mutually exclusive sets of legal consequences, representing equally opposed conceptions of monarchy, that derive from different ideas about a coronation: does being crowned entail the monarch’s acceptance of a contract with his people or not? James denied the existence of any “mutuall paction and adstipulation . . . betwixt the King and his people,”66 and so, in his view, Macbeth’s naming at Scone would have two related consequences. First, Macbeth’s investiture as king would have elevated him beyond the reach of Scotland’s laws because, according to The Trew Law, “the King is above the law, as both the author and giver of strength thereto.” Power does not flow from the people. Rather, “power flowes always from him selfe,” not the other way, and unlike Elizabeth, he endorses “the old definition of a King, and of a law, which makes the king to bee a speaking law, and the Law a dumbe king.” While it is a good idea for the monarch to “frame all his actions” according to the law, “yet is hee not bound thereto but of his good will.”67 Second, because the monarch is accountable only to God, all resistance is forbidden. Since only God has the power to make a king, God “hath the onley power to unmake him.”68 Rising up against a king is “monstrous and unnatural,” equivalent to patricide: “can any pretence of wickedness or rigor on his part be a just excuse for his children to put hand into him?”69 Furthermore, violent seizure of power presents no bar to legitimacy. James points to the fact that the Scots monarchy originated in an act of foreign conquest: “For as our Chronicles beare witnesse . . . there comes our first King Fergus, with a great number with him, out of Ireland, which was long inhabited before us, and making himselfe master of the countrey, by his owne friendship, and force . . . hee made himselfe King and Lord as well of the whole landes, as of the whole inhabitants within the same.”70 The same principle applies to England: And although divers changes have beene in other countries of the blood Royall, and kingly house, the kingdome being reft by conquest from one to another, as in our neighbour countrey in England, . . . yet the same ground of the kings right over all the land, and subjects thereof remaineth alike in all other free Monarchies, as well in this: For when the bastard of Normandie came into England, and made himselfe king, was it not by force, and with a mighty army? Where he gave the Law, and tooke none, changed the Lawes, inverted the order of government, set downe the strangers his followers in many of the

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old possessours roomes. . . . And yet his successours have with great happinesse enjoyed the Crowne to this day; Whereof the like was also done by all them that conquested them before.71 But to at least some in Shakespeare’s audience, whether the play was performed at court or at the Globe, Macbeth’s investiture at Scone would have meant that he has indeed agreed to a “contract made . . . at the coronation of a King,”72 that he is now subject to the same limitations and obligations, the same coronation oath, binding England’s monarchs. This oath, as recorded in the fourteenth-century Liber Regalis, consists of three questions, the first being: “Will you graunt and keepe, and by your oath Confirme, to the people of England, the Lawes and Customes to them graunted, by the Kings of England”; the answer is “I graunte and promise so to do.”73 Having sworn to uphold the law, the monarch is now subject to the law, since the law precedes and creates the monarch. Or as Sir Edward Coke put it in 1604, “The King is under no man; but only God and the law, for the law makes the King: Therefore let the King attribute that to the law, which from the law he hath received, to witt power and dominion.”74 The place of resistance, to be sure, is trickier, since overt statements of resistance would be treasonous, and one can find many statements, such as An Homily against Disobedience and Willful Rebellion (1570), condemning rebellion in the strongest possible terms. However, the strictures against rebellion of the Homily have to be weighed against three developments. The first is the development of both Catholic and Protestant resistance theory, which took as its fundamental premise exactly the “mutuall paction and contract bound up, and sworne betwixt the king, and the people” James denies.75 In A Defense of Liberty Against Tyrants (1579), for example, Philippe du Plessis Mornay argued for the existence of “a mutual obligation between the king and the people,” and if a king should violate this agreement, then he is “a tyrant [who] may be lawfully resisted.”76 One finds nearly the same argument in Christopher Goodman’s How Superior Powers oght to be obeyd of their subjects, and the subtitle allows exactly what James denies: and Wherein they lawfully by Gods Worde be disobeyed and resisted (1558). “Obedience,” Goodman thunders, “is necessarie where God is glorified, but if God be dishonored thy obedience is abominable in the sight of God, be it never so beautiful in mans eyes.”77 If, in other words, a monarch breaks God’s laws by acting tyrannously, rebellion is not only allowed, but is a religious duty. The second is the specifically English tradition, preceding the flowering of resistance theory toward the mid-sixteenth century, of granting


the subject a limited right to depose, either by law or by violence, a monarch who goes beyond the traditional limits of royal prerogative. The historical Richard II, for example, was not violently deposed, but removed from power by process of law. As Edward Hall writes (and his account is reproduced almost verbatim in Holinshed’s Chronicles), Richard’s enemies put before Parliament “.xxxv. solempne articles” to prove that he “was an unjust and unprofitable Prince and a tiraunte over his subjectes, and worthy to bee deposed.”78 Of particular interest is number 16: “he said that the lawes of the realme were in his head, and som time in his brest, by reason of whiche fantasticall opinion, he destroyed noble men and empoverished the pore commons.”79 Therefore, this document concludes, “kyng Richard was worthy to be deposed of al honor, rule and Pryncely governance.”80 This tradition also found its way onto the early modern stage. In Christopher Marlowe’s Edward II (1593; pub. 1598), the Younger Mortimer states that if the king does not consent to banishing Gaveston, who undoubtedly is causing chaos in the realm, “then we may lawfully revolt from him.”81 Revolt is not outside the law, but a remedy the law provides in extreme situations. Finally, Shakespeare dramatizes Richard II’s deposition in The Tragedy of King Richard II (1595). And while Richard is eventually murdered, there is little doubt in this play that Richard’s breaking the line of succession by his extralegal seizure of Henry Bolingbroke’s property legitimates the resistance to him. While John Selden comes significantly after Shakespeare’s time, his answer to the question “What law is there to take upp Armes against the prince in Case hee breakes his Covenant?” nonetheless applies to the early seventeenth century: “Though there bee no written law for it yet there is Custome which is the best Law of the Kingdome; for in England they have allwayes done it.”82 The third factor is the tradition in Scotland, firmly and approvingly represented in The Historie of Scotlande, that the nobility can remove monarchs who become tyrants. To give but one example from many (since nearly every Scots monarch ends up deposed or murdered), the Scots nobility, fed up with the devastation King Grime is inflicting on his country, beg Malcolm “to deliver the common wealth of such tyrannie as was practiced by the misgovernment of Grime and his unhappie counsellers,” and Malcolm obliges, becoming the next king.83 Kastan and Coddon are therefore entirely right to argue that Shakespeare uses Macbeth to reveal “the way the play inscribes not merely the contradictions in the source material but in the absolutist logic itself.”84 James’s assertion, repeated in the show of eight kings, of unbroken masculine lineal descent occludes the violence necessary for

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the Stuart line to begin, since it is Duncan’s line that is restored at the end of Macbeth, not Banquo’s. Thwarting James’s desire for a seamless line, Shakespeare reveals the violence attending the establishment and maintenance of political power. Yet the matter is even more complex. Rather than simply subverting absolutism by invoking the Ancient Constitution, Shakespeare tests both absolutism and the Ancient Constitution, and finds both wanting. In The Trew Law, James maintains that there are no circumstances whatsoever that could justify taking arms against an “invested” monarch, no matter how egregiously bad the conduct: “can any pretence of wickedness or rigor on his part be a just excuse for his children to put hand into him?”85 James not only prefers tyranny to the chaos of rebellion, but cannot imagine any possible circumstances in which a monarch’s behavior could be so evil that his deposition would be justified: “For a king cannot be imagined to be so unruly and tyrannous, but the common-wealth will be kept in better order, notwithstanding thereof, by him, than it can be by his way-taking.”86 By contrast, in Macbeth, Shakespeare reveals the necessary, logical consequence of James’s position by making explicit just what horrors The Trew Law would allow to continue unchecked. This is why Shakespeare presents us with a clear-cut, if superficial, distinction between a saintly, trusting King Duncan and the duplicitous, murderous Macbeth. As we have seen, James rules out resistance even in the case of foreign conquest (Fergus and William the Conqueror), but what about, Shakespeare seems to ask, the murder of a king such as Duncan, who, in the play, is by no means a tyrant? Does James mean to exclude resistance in this instance as well? Duncan, as Macbeth admits, “Hath borne his faculties so meek, hath been, / So clear in his great office, that his virtues / Will plead like angels, trumpet-tongued against / The deep damnation of his taking off” (1.7.16–19). Even more, Macbeth acknowledges that his treachery is personal as well as political, since he is both Duncan’s “kinsman and his subject” (1.7.13). James, in The Trew Law, does not explicitly address this scenario. Yet his treatment of William the Conqueror strongly implies that how one gets the crown is irrelevant. Macbeth’s actions therefore would not overshadow his being crowned at Scone. According to the standards set out in The Trew Law, once Macbeth becomes king, he is beyond the reach of law. The worst outrage arrives in 4.2, when Shakespeare invents the onstage murder of Lady Macduff and her son. Critics are divided as to whether this scene reinforces or undoes the homology between the public and the private,87 yet however one construes the relationship, the


larger point is that not even this slaughter, according to James, merits an invested king’s removal. Shakespeare seems to be asking, is Scotland truly in “better order” with Macbeth at the helm? Is “patience”88 really the only recourse against a monarch who breaks virtually all bonds, who tries to murder virtually everybody who stands between him and the throne? Did the prophets really have someone like Macbeth in mind when they forbade “the people to rebel against the Prince, how wicked soever he was”?89 Throughout Macbeth, Shakespeare reveals, in other words, the radical cost should James’s gnosis ever translate into praxis. Shakespeare carries this interrogation of absolutism’s logical consequences into 4.3. In this scene, which very closely follows its source in The Historie of Scotland, Malcolm “tests” Macduff by constantly stating how he will be a tyrant, and Macduff keeps on excusing Malcolm’s future crimes. The problems here are multiple. First, once more, the scene puts into question James’s statement in The Trew Law that no monarch can be so bad but that “the common-wealth will be kept in better order” with him on the throne.90 Malcolm claims that “there’s bottom, none, / In my voluptuousness. Your wives, your daughters, / Your matrons and your maids could not fill up / The cistern of my lust, and my desire / All continent impediments would o’erbear / That did oppose my will” (4.3.61–66). Then he adds “staunchless avarice” to his list of sins, and he warns that if he were king, “I should cut off the nobles for their lands, / Desire his jewels and this other’s house, / And my morehaving would be as a sauce / To make me hunger more, that I should forge / Quarrels unjust against the good and loyal, / Destroying them for wealth” (4.3.79–84). And, finally, he asserts that he will “abound / In the vision of each several crime, / Acting it many ways. Nay, had I power, I should / Pour the sweet milk of concord into hell, / Uproar the universal peace, confound / All unity on earth” (4.3.96–101). All of these crimes must be patiently endured, according to James, since under no circumstances is deposition justified. The answer to this state of affairs might be the right of resistance implicit in the Ancient Constitution, and Malcolm follows exactly the script laid out by Hall, Holinshed, Hayward, Marlowe, and Shakespeare himself in that he deposes the tyrant and, with the permission of his allies, takes the throne himself, presumably to rule more justly than Macbeth. Furthermore, each of Macduff’s responses to Malcolm’s selfaccusations grants the legitimacy of resisting tyranny (precisely what James denies). Lust, he says, “hath been / Th’untimely emptying of the happy throne / And fall of many kings” (4.3.69–70), and avarice (which “sticks deeper” than lust) also “hath been / The sword of our slain kings”

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(4.3.87–88). Even Malcolm’s laundry list of crimes ends with the question of whether he is “fit to govern” (4.3.102), implying that one requires something other than parentage or conquest to qualify as a legitimate ruler. But while the play asserts the legitimacy of resistance, Macduff allows Malcolm so much latitude that one has to wonder just how much difference there would be between the degree of disorder he would tolerate in order to rid Scotland of Macbeth and the degree of disorder allowed by James’s absolute refusal to grant any right of resistance whatsoever. Both The Historie of Scotlande and Shakespeare call attention to this issue by having Macduff allow behaviors that caused the deposition of earlier kings. When Malcolm accuses himself of boundless lust, he recalls, with equally over-the-top rhetoric, King Culene, who also “was given unto lechery beyond all the terms of reason, sparing neyther mayde, widowe, nor wife, profane nor religious, sister nor daughter.”91 Equally, when Malcolm accuses himself of boundless avarice, he recalls King Grime, who “through long slouth and encrease of ryches, became a most covetous tyrant, and so corrupted in manners and conditions, that it passed the terms of al reason and equitie.”92 Yet while Culene’s nobles, fed up with the king’s uncontrolled sexual appetite and venereal disease, “caused a Parliament to be summoned at Scone, where they determined to depose King Culene; and appoynt some other (whom they should judge most meetest) to reygne in his place,”93 Macduff responds by granting Malcolm a pass: “We have willing dames enough. / There cannot be / That vulture in you to devour so many / As will to greatness dedicate themselves” (4.3.74–76). While Grime’s “staunchless avarice” (4.3.79) incited his nobles to beseech Malcolm, Prince of Cumberland, “to deliver the common wealth of such tyrannie as was practised by the misgovernment of Grime and his unhappie councellors,”94 Macduff again grants Malcolm a pass: “Yet do not fear; / Scotland hath foisons to fill up your will / Of your mere own” (4.3.87–89). One can surely understand why Macduff, whose family was slaughtered onstage, would prefer almost anybody, no matter how bad, to Macbeth. Yet his desire for vengeance transforms a fairly simple rule – commit tyranny, defy the rule of law, and you are subject to deposition – into an almost unsolvable ethical dilemma. Is someone who would rule like King Grime, whose greed led to a civil war that caused “more mischiefe and trouble than ever had beene seen afore that time in Scotland,”95 really preferable to Macbeth, even if in other circumstances insatiable greed will not be tolerated? Is a lesser tyrant, whose acts would ordinarily be sufficient to warrant violent deposition, preferable to a


greater tyrant? Is Macduff’s judgment so clouded by grief and desire for vengeance that he has lost his moral bearings? Or have we entered a world where there is no right, only degrees of wrong? 96 In the Chronicles, however, after Malcolm accuses himself of lacking all trustworthiness, being “inclined to dissimulation, telling of leasings [lies], and all other kinds of deceyt,”97 Macduff recovers some (but not all) of his moral standing when he finally decides that he can tolerate no more, that Scotland is faced with a choice between Macbeth, a “cursed and wicked tyrant,” and Malcolm, who “by his owne confession he is not onley avaritious, and given to unsatiable lust, but so false a traytour withall, that no trust is to be had to any word he speaketh.”98 The only response to this aporia is to flee the country. Of course, at this point, Malcolm reveals that he had been testing Macduff, that he is in fact completely virtuous, and the two conclude their colloquy: “Incontinentlie hereupon they embraced eche other, and promising to bee faythfull the one to the other, they fell in consultation, howe they might best provide for al their businesse, to bring the same to good effect.”99 But in Shakespeare’s play, the aporia is not resolved. As in the Chronicles, Malcolm’s final, extravagant self-accusation finally puts him beyond the pale. Macduff condemns him as unfit “to live,” and he bewails Scotland’s fate: O nation miserable, With an untitled tyrant bloody-sceptered, When shalt thou see thy wholesome days again, Since that the truest issue of thy throne By his own interdiction stands accurst And does blaspheme his breed? (4.3.104–109) Shakespeare then alters his source in two very significant ways. First, unlike his prototype in the Chronicles, Macduff does not specifically condemn avarice and lust. It is not clear if “his own interdiction” refers to all of Malcolm’s self-accusations or just the final list. In other words, Macduff may still believe the avaricious and lustful Malcolm fit to govern Scotland if that is what it takes to get rid of Macbeth. Finally, in the Chronicles, this dialogue ends with the two resolving their differences and looking to the future, yet in Macbeth, after Malcolm unspeaks his own detraction, Macduff draws back, and his response to Malcolm’s query, “why are you silent” (4.3.138), is the very definition of the aporetic condition: “Such welcome and unwelcome things at once / ’Tis hard to reconcile” (4.3.139–40).100

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In conclusion, while Macbeth does not condone absolutism, neither does it fully embrace the terms of the Ancient Constitution. Given the degree of mayhem Macduff will allow, the practical application of absolutism and the Ancient Constitution, though theoretically distinct, makes them “dismayingly similar.”101 Both ideologies are put into play, but neither is determinative, each problematic. Drawing on the growing political controversies caused by Jacobean absolutism, Macbeth interrogates both political philosophies circulating in early modern England without endorsing either. The aporia of politics outside the playhouse leads to the aporia of politics on the stage.

Notes 1. See for example Henry N. Paul, The Royal Play of “Macbeth” (rpt. New York: Octagon Books, 1971); and Alvin Kernan, Shakespeare, the King’s Playwright: Theater in the Stuart Court, 1603–1613 (New Haven, CT: Yale University Press, 1995), pp. 75–80. 2. Karin S. Coddon, “ ‘Unreal Mockery’: Unreason and the Problem of Spectacle in Macbeth,” English Literary History 56:3 (1989), 485–50; David Scott Kastan, “Macbeth and the ‘Name of King,’ ” Shakespeare After Theory (New York: Routledge, 1999), pp. 165–82; David Norbrook, “Macbeth and the Politics of Historiography,” Politics of Discourse: The Literature and History of SeventeenthCentury England, ed. Kevin Sharpe and Steven N. Zwicker (Berkeley, CA: University of California Press, 1987), pp. 78–116; Alan Sinfield, “Macbeth: History, Ideology, and Intellectuals,” Faultlines: Cultural Materialism and the Politics of Dissident Reading (Berkeley, CA: University of California Press, 1992), pp. 95–108; Rebecca Lemon, “Scaffolds of Treason in Macbeth,” Theatre Journal 54 (2002), 25–43. 3. For example Jonathan Goldberg, “Speculations: Macbeth and Source,” in Shakespeare Reproduced: The Text in History and Ideology, ed. Jean E. Howard and Marion F. O’Connor (New York: Methuen, 1987), pp. 242–64; Coddon, “ ‘Unreal Mockery,’ ” and Harry Berger Jr., “The Early Scenes of Macbeth: Preface to a New Interpretation,” in Making Trifles of Terrors: Redistributing Complicities in Shakespeare, ed. Peter Erickson (Stanford, CA: Stanford University Press, 1997), pp. 70–97. 4. Kastan, “Name of King,” p. 173. See also Norbrook, “Politics of Historiography,” p. 116, and Sinfield, “History, Ideology,” p. 108. Michael Hawkins recognizes that the constitutional issues in Macbeth are “as clouded as most of the other political topics in the play,” but he then qualifies this insight: “while the constitutional issue is unavoidably present, it is not stressed” (“History, Politics and Macbeth,” Focus on “Macbeth,” ed. John Russell Brown [London: Routledge & Kegan Paul, 1982]), pp. 174, 175–76. 5. Coddon, “Unreal Mockery,” 486–90. 6. The canonical text on the Ancient Constitution remains J. G. A. Pocock, The Ancient Constitution and the Feudal Law: English Historical Thought in the Seventeenth Century (Cambridge: Cambridge University Press, 1957). See also Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English


7.

8. 9. 10. 11.

12.

13. 14. 15. 16.

17.

18.

Political Thought, 1603–1642 (University Park, PA: Penn State University Press, 1992); and Johann P. Sommerville, Politics and Ideology in England 1603–1640 (London: Longman, 1986). See also Constance Jordan, Shakespeare’s Monarchies: Ruler and Subject in the Romances (Ithaca, NY: Cornell University Press, 1997) for a fascinating treatment of the politics of Shakespeare’s late plays. The Trew Law, in King James VI and I, Political Writings, ed. Johann P. Sommerville (Cambridge: Cambridge University Press, 1994), pp. 62–84. I have silently adopted the contemporary usage of u/v and i/j. Sommerville, Political Writings, p. 282 n. 468. Trew Law, pp. 62, 65. Trew Law, pp. 73, 74. Arthur F. Kinney also notes that “the very idea of government as perpetuated by James involved tyranny; insofar as it meant absolute rule, it was potentially a dangerous matter” (Lies Like Truth: Shakespeare, “Macbeth,” and the Cultural Moment [Detroit, MI: Wayne State University Press, 2001], p. 96), but he does not take the Ancient Constitution into account. Instead, in his subchapter “Lexias of Resistance” (pp. 136–41), he relies on Marian resistance theory. My view, however, is that the Ancient Constitution precedes and subtends the work of John Ponet and Christopher Goodman. Sir John Fortescue, In Praise of the Laws of England, in On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge: Cambridge University Press, 1997), p. 48. Fortescue wrote this text between 1468 and 1471 while in France, and it was frequently republished afterward. English translations appeared in 1567, 1573, and 1599. Fortescue, In Praise of the Laws of England, p. 52. Sir Thomas Smith, De Republica Anglorum, ed. Mary Dewar (Cambridge: Cambridge University Press, 1982), pp. 54, 78. See generally J. E. Neale, Elizabeth I and her Parliaments 1584–1601 (New York: St. Martin’s Press, 1958). Her Majesties Most Princely Answer . . . On the Last Day of November 1601, sig. A4r–A5v. The two manuscript versions of this speech differ significantly from the printed version. In both, Elizabeth is reported as saying: “For myself, I was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that God hath made me His instrument” (Elizabeth I: Collected Works, ed. Leah S. Marcus, Janel Mueller, and Mary Beth Rose [Chicago, IL: University of Chicago Press, 2000], pp. 339, 342). Significantly, the rejection of absolutism is sharper in the version prepared for public consumption. The Progresses, Processions, and Magnificent Festivities of King James the First, ed. John Nichols, vol. 1 (rpt. New York: Burt Franklin, 1966), p. 89. See also Adam Nicolson, God’s Secretaries: The Making of the King James Bible (New York: HarperCollins, 2003), pp. 14–15. I am grateful to Adam Nicolson for directing me to the source of this anecdote. The presumption in England is that criminal prosecutions must be done by a public trial. Punishments cannot be determined secretly, and certainly not by summary execution. To be sure, sometimes the trial was a show trial, as was Sir Thomas More’s experience. But at other times, even a high-level treason trial, in which the outcome was usually predetermined, could become a

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19. 20.

21.

22.

23. 24. 25. 26.

27.

28.

Peter C. Herman genuinely deliberative exercise. For an example, see The Trial of Nicholas Throckmorton, ed. Annabel Patterson (Toronto: CRRS Publications, 1998), an edition of the transcript of Throckmorton’s trial in Holinshed’s Chronicles. On the importance of the rule of law in the Chronicles, see Annabel Patterson, Reading “Holinshed’s Chronicles” (Chicago, IL: University of Chicago Press, 1994), pp. 154–83. Progresses, p. 48. “Here now wyll I rest my troubled mynde, and tende my sheepe like an Arcadian swayne, that hath lost his faire mistresse. . . . I wyll keepe companie with none but my oves and boves, and go to Bathe and drinke sacke, and wash awaie remebraunces of past times in the streames of Lethe” (Progresses, p. 48). Some recent historians have been more sympathetic to James, downplaying his absolutism and political clumsiness. See for example Alan G. R. Smith, “Constitutional Ideas and Parliamentary Developments in England 1603–1625,” The Reign of James VI and I, ed. Alan G. R. Smith (New York: St. Martin’s Press, 1973), pp. 160–76; and R. C. Munden, “James I and ‘The Growth of Mutual Distrust’: King, Commons, and Reform, 1603–1604,” Faction and Parliament: Essays on Early Stuart History, ed. Kevin Sharpe (Oxford: Clarendon Press, 1978), pp. 43–72. “Revisionist” historians, such as Paul Christianson, have even argued that early seventeenth-century England was marked by ideological harmony. As I hope this essay will show, this thesis is untenable. For an example of “revisionism,” see Christianson, “Royal and Parliamentary Voices on the Ancient Constitution,” in, The Mental World of the Jacobean Court ed. Linda Levy Peck (Cambridge: Cambridge University Press, 1991), pp. 71–95. Johann P. Sommerville effectively refutes this position in “King James VI and I and John Selden: Two Voices on History and the Constitution,” Royal Subjects: Essays on the Writings of James VI and I, ed. Daniel Fischlin and Mark Fortier (Detroit, MI: Wayne State University Press, 2002), pp. 290–322. On Macbeth and the constitutional conflict of James’s early reign, see Arthur F. Kinney, “Imagination and Ideology in Macbeth,” The Witness of Times: Manifestations of Ideology in Seventeenth Century England, ed. Katherine Z. Keller and Gerald J. Schiffhorst (Pittsburgh, PA: Duquesne University Press, 1993), pp. 158–64. “A Speech, as it was Delivered in the Upper House of the Parliament . . . On Munday, the XIX Day of March 1603,” in Sommerville, Political Writings, p. 136. Political Writings, p. 143. Political Writings, p. 143. Journals of the House of Commons (London: House of Commons, 1803), all p. 146. Journals, p. 147. The importance of this speech has not been recognized. In his summary of the first Jacobean parliament, for example, Wallace Notestein writes, “The long-winded response of the speaker need not detain us long” (The House of Commons 1604–1610 [New Haven, CT: Yale University Press, 1971], p. 63). Samuel L. Gardiner, History of England from the Accession of James I. to the Outbreak of the Civil War, 1603–1642, vol. 1 (London: Longmans, Green, 1895), pp. 167–70; Notestein, House of Commons, pp. 63–78. Journals, p. 158.

Absolutism and the Ancient Constitution 229 29. Journals, p. 159. 30. Journals, p. 159. 31. “Form of Apology and Satisfaction, 1604,” Constitutional Documents of the Reign of James I, ed. J. R. Tanner (Cambridge: University Press, 1930), p. 218. 32. Tanner, “Apology,” p. 220. 33. Tanner, “Apology,” p. 221. 34. Journals, p. 166. 35. In his sermon on the attempted destruction of England’s government, John Donne notes that the plotters “made that house, which is the hive of the Kingdome, from whence all her honey comes; that house where justice herself is conceived, in their preparing of Laws, and inanimated, and quickned and borne by the Royall Assent, there given; they made that whole house one Murdring peece” (Donne’s Sermons: Selected Passages, ed. Logan Pearsall Smith [Oxford: Clarendon Press, 1959], p. 50). 36. Tanner, “Apology,” p. 220. Lord Chancellor Ellesmere is an example of exactly this sort of alienation. Whereas earlier he would have emphasized the king’s superiority to the law, by 1614 his frustration with the king’s insistence on royal prerogative led him to declare that “the King hath no prerogative but that which is warranted by law and the law hath given him” (quoted in Louis Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere [Cambridge: Cambridge University Press, 1977], pp. 76, 76 n. 1). 37. Macbeth, 1.1.11–12. All references will be to Macbeth: Texts and Contexts, ed. William C. Carroll (New York: Bedford St. Martin’s, 1999). 38. See Berger’s trenchant analysis of this scene, “Early Scenes of Macbeth,” pp. 75–76. 39. Coddon, “Unreal Mockery,” 489. 40. Berger, “Early Scenes of Macbeth,” p. 87. 41. Norbrook, “Politics of Historiography,” p. 83. 42. Paul, Royal Play, p. 168. 43. Thynne’s The Historie of Scotlande was included in The firste volume of the Chronicles of England, Scotlande, and Ireland, “gathered and set forth, by Raphaell Holinshed” (London, 1577). But The Historie of Scotlande has its own title page and its own dedication. The page numbers start with “1” and the signatures begin with “A.” It is a book within a book, and therefore, I will refer to it as The Historie of Scotland rather than Holinshed’s Chronicles, as is conventional. I use the 1577 rather than the 1587 edition of because I am convinced by Arthur F. Kinney’s argument that the 1577 illustrations indisputably show that Shakespeare used the earlier rather than the later version. On sig. B5, for instance, one finds a dagger floating in the air. See Arthur F. Kinney, “Scottish History, the Union of the Crowns and the Issue of Right Rule: The Case of Shakespeare’s Macbeth,” in Renaissance Culture in Context: Theory and Practice, ed. Jean R. Brink and William F. Gentrup (Brookfield: Ashgate, 1993), pp. 32–37. For an excellent analysis of the 1577 illustrations generally, see James A. Knapp, Illustrating the Past in Early Modern England: The Representation of History in Printed Books (Aldershot: Ashgate, 2003), pp. 162–206. In quoting from The Historie of Scotlande, I have silently adopted the contemporary usage of u/v and i/j and expanded contractions. 44. Historie, sig. Q2v.

230 Peter C. Herman 45. In the 1587 edition of the Historie, “ferly” is changed to “wild” (quoted in Carroll, p. 141). 46. Carroll glosses this phrase as “ancient times” (p. 141). However, the Scots context suggests that “elvish” is the likelier meaning, as all of the OED’s examples come from Scotland. Furthermore, both the prose and the verse translations of Boece’s history use “edritche.” In William Stewart’s version, their clothing “wes of elritche hew” (The Buik of the Cronicis of Scotland [London: Longman, Brown et al., 1858], vol. 6, part 2, p. 636); John Bellendon’s prose version has this phrase as “wemen clothit in elrage & uncouth weid” (Chronicle of Scotland [Edinburgh, 1540], sig. Ll3r). I am grateful to Anne Lake Prescott for help with this point. 47. Carroll, “Note on Figure 7,” p. 141. 48. Historie, sig. Q2v. 49. Nichols, Progresses, p. 543. 50. Translated by Henry Paul, The Royal Play of “Macbeth,” p. 163. The Latin text can be found in Nichols, Progresses, p. 545. 51. Oxfords Triumph In the Royall Entertainment of his moste Excellent Majestie (London, 1605), sig. Br. 52. In 1604, the king told Parliament that “my Birthright and lineall descent had in the fulnesse of time provided for me [the English throne],” that he is “lineally out of the loynes of Henry the seventh” descended, and furthermore, “justly and lineally descended, not only of that happie conjunction, but of both the Branches thereof many times before” (Political Writings, pp. 82, 132, 134). 53. Quoted in Kastan, “Name of King,” p. 169. 54. Paul, Royal Play, p. 152. For a reproduction of genealogy, see Carroll’s edition, p. 125. In 1607, James will tell Parliament that he is “in descent, three hundreth yeeres before CHRIST” (Political Writings, p. 172). 55. Kernan, Shakespeare, the King’s Playwright, p. 77. 56. Political Writings, p. 161. 57. Mullaney, Place, p. 124. 58. Debora Shuger, “The ‘I’ of the Beholder: Renaissance Mirrors and the Reflexive Mind,” Renaissance Culture and the Everyday, ed. Patricia Fumerton and Simon Hunt (Philadelphia, PA: University of Pennsylvania Press, 1999), p. 22. 59. Shuger, “The ‘I’ of the Beholder,” p. 26. The examples from Shakespeare are Shuger’s also. 60. Cf. Kinney, “Scottish History,” who argues that “Shakespeare builds his portrait of the three weird sisters on the vision in Holinshed” (p. 39). 61. Nichols, Progresses, p. 543. 62. Stuart Clark, “Inverson, Misrule, and the Meaning of Witchcraft,” Past and Present 87 (1990), 126. 63. On this point, see Mullaney, Place, p. 124; Goldberg, “Speculations,” p. 252; and Coddon, “Unreal Mockery,” 497. 64. Journals, p. 183. 65. Cf. Norbrook, “Politics of Historiography,” who notes that the play’s sources stress “the active role of the nobility in choosing and deposing their rules, [but] in Macbeth references to elections are normally cast in the passive voice and assimilated to the workings of Fortune” (p. 98).

Absolutism and the Ancient Constitution 231 66. 67. 68. 69. 70. 71. 72. 73.

74. 75.

76. 77. 78.

79. 80.

81.

82. 83. 84. 85. 86.

Trew Law, p. 81. Trew Law, all p. 75. Trew Law, p. 68. Trew Law, p. 77. Trew Law, p. 73. Trew Law, p. 74. Trew Law, p. 81. According to Legg, the Liber regalis was translated in 1603 for James’s coronation (English Coronation Records, ed. Leopold George Whickham Legg [London: Archibald Constable, 1901], p. xix). Since Legg does not include this translation, the text quoted above is from the records of Charles I’s coronation (English Coronation Records, xxxi, p. 251). I am deeply grateful to James Kinney for this reference. Legg also reproduces a copy of the coronation oath as revised by Henry VIII. In this document, Henry adds clauses that preserve the power of the crown. For example, rather than promising that he will uphold the Church’s liberties, he writes that he will maintain the Church’s liberties so long as they are “nott prejudyciall to hys Jurysdiccion and dignite ryall” (p. 240). Henry’s revision was never used, since it would have contradicted the main purpose of the coronation: “to keep the King in check in the exercise of his powers” (headnote, p. 240). Le Quart Part des Reportes Del Edward Coke (London, 1604), sig. B5r. Trew Law, p. 80. See Robert M. Kingdom, “Calvinism and Resistance Theory, 1550–1580,” in The Cambridge History of Political Thought 1450–1700, ed. J. H. Burns, with Mark Goldie (Cambridge: Cambridge University Press, 1991), pp. 193–218; and J. H. M. Salmon, “Catholic Resistance Theory, Ultramontanism and the Royalist Response, 1580–1620,” in The Cambridge History, ed. Burns and Goldie, pp. 219–53. Quoted in Carroll, “Note on Figure 7,” pp. 247, 248. Christopher Goodman, How Superior Powers oght to be obeyed of their subjects (Geneva, 1558), sig. A4r–A5v. Edward Hall, Hall’s Chronicle, ed. Henry Ellis (London: J. Johnson et al., 1809), p. 9; Holinshed’s Chronicles of England, Scotland and Ireland, vol. 3 (London: J. Johnson et al., 1807), p. 859. Hall, Hall’s Chronicle, 10; Holinshed’s Chronicles, p. 860. Hall, Hall’s Chronicle, 11; Holinshed’s Chronicles, p. 861. See also the Archbishop of Canterbury’s speech justifying Richard’s deposition in Sir John Hayward’s 1599 The Life and Raigne of King Henrie IIII, ed. John J. Manning (Camden Society, 4th series. London: Royal Historical Society, 1991), pp. 113–15. Marlowe, Edward II, 1.4.73, in Christopher Marlowe: The Complete Plays, ed. J. B. Steane (Harmondsworth, Middlesex: Penguin, 1969; rpt. 1985). I am currently preparing an essay on Marlowe’s use of the Ancient Constitution in Edward II. Quoted in Burgess, The Politics of the Ancient Constitution, pp. 95–96. Historie, sig. P2. On the Scots republican historiographic tradition, see Norbrook, “Politics of Historiography,” pp. 85–93. Kastan, “Name of King,” p. 179. Trew Law, p. 77. Trew Law, p. 79.

232 Peter C. Herman 87. Norbrook, “Politics of Historiography,” p. 104; Kastan, “Name of King,” p. 175. 88. Trew Law, p. 67. 89. Trew Law, p. 70. 90. Trew Law, p. 79. 91. Historie, sig. O2r. 92. Historie, sig. P2v. 93. Historie, sig. O2r. 94. Historie, sig. P2r. 95. Historie, sig. P2v. 96. Rebecca W. Bushnell also notes that 4.3 “demonstrates how the rhetoric of antithesis can slide into a language of relatives rather than absolutes” (Tragedies of Tyrants: Political Thought and Theater in the English Renaissance [Ithaca, NY: Cornell University Press, 1990], p. 142). 97. Historie, sig. Q6v. 98. Historie, sig. Q6r. 99. Historie, sig. Q6r. 100. Bushnell, Tragedies of Tyrants, p. 142. 101. Kastan, “Name of King,” p. 166.

13 Arms and Laws in Shakespeare’s Coriolanus Rebecca Lemon

Imperial Majesty should not only be graced with arms but also armed with laws, so that good government may prevail in time of war and peace alike. [Imperatoriam maiestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus et bellorum et pacis recte possit gubernari.] Justinian’s Institutes (AD 530)1 The Roman definition of sovereignty as laws and arms, deceptively simple, hinges on a complex balance between discretion on the one hand and tyranny on the other. The Justinianic code sanctions the necessary suspension of law in wartime – when a state must defend itself with arms – but a sovereign’s failure to attend to the law otherwise constitutes tyrannical rule. “Good government” depends on law. This Roman maxim on laws and arms appears repeatedly in the writings of English jurists as they define sovereign power. Henry of Bracton begins his medieval legal tract De Legibus (c.1230) by paraphrasing the Institutes: “To rule well a king requires two things, arms and laws, that by them both times of war and of peace may rightly be ordered. For each stands in need of the other, that the achievement of arms be conserved [by the laws], the laws themselves preserved by the support of arms.”2 John Fortescue reiterates Bracton’s Justinianic separation of peace from war, law from lawlessness. In A Learned commendation of the politique lawes of England (1573), Fortescue rehearses the opening lines of the Institutes to delineate sovereign power: “Justinian the emperor wel and wisely and advisedly pondering, in the beginning of the preface of his booke saith thus. It behoveth the imperiall majesty not onely to be guarded with armes, but also to bee armed with lawes, to the end that he 233

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may bee able rightly to execute the government of bothe times, as well of warre as of peace.”3 This Roman separation of law and war appears again with Francis Bacon, who, in his support for King James, places particular stress on the martial half of the equation.4 Writing in The Case of the Post-Nati (1608), Bacon notes Bracton’s debt to Justinian in delineating wartime powers: “whosoever speaks of laws, and the king’s power by laws, and the subject’s obedience or allegiance to laws, speak but one half of the crown. Bracton, out of Justinian, doth truly define the crown to consist of laws and arms, power civil and martial. With the latter the law doth not intermeddle.”5 Since the texts of Bracton and Justinian ambitiously chronicle English and Roman law, respectively, their opening distinction between arms and laws might be dismissed as a mere rhetorical device to justify their tracts: these authors, after all, attempt to characterize laws as equally vital to state protection as arms. Furthermore, the ubiquity of this distinction, to which I only gesture in the brief survey above, might suggest its emptiness: like a proverb on a knitted pillow, the Roman definition of sovereignty evokes merely bland agreement from its audience. Yet the opposition of arms and laws does vital conceptual as well as rhetorical work in carving out, however passingly, a portion of sovereignty beyond the law. This formulation of a sovereign’s duplex powers, as explored by Glenn Burgess, Francis Oakley, Brian Tierney, and others, at once acknowledges the primacy of legal codes while also recognizing that situations will arise beyond the scope or even imagination of the law.6 As Bracton puts it later in De Legibus, a “time of peace” is “used to distinguish things done in time of war. The distinction is between a time of law and a time of lawlessness, for there is a time of lawlessness when violent oppressions and wrongful decisions, which cannot be resisted, are committed.”7 Bracton thus identifies “a time of war,” namely, when the sovereign uses arms, as also “a time of lawlessness” during which subjects bow to potentially tyrannical rule. Such “violent oppressions,” he claims, “cannot be resisted,” although his use of the passive voice leaves ambiguous the source of tyranny, which could lie as much with criminal subjects as with rulers. In either case, Bracton’s equation on sovereignty firmly separates the time of arms and oppression from the time of peace and law. Yet despite or perhaps due to the simplicity of the formula (sovereignty ⫽ arms ⫹ laws), the precise relation of arms and laws remains obscure. Even as English authors paraphrase the same text of Justinian, they offer slightly different articulations of the law–arms relation. Justinian’s phrase interpenetrates war and peace, presenting laws as

Arms and Laws in Coriolanus

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arms (“legibus . . . armatam”) and vice versa. Yet Bracton and Fortescue make a temporal distinction: there are times of war and times of peace. To Bacon, in contrast, the separation seems material and spatial: sovereignty consists of two halves that do not “intermeddle.” What, however, if the differentiation between such times or halves becomes difficult to determine? Effective sovereignty as a result consists not simply in exercising both laws and arms, but in deciding when and where to exercise them, in determining, that is, how laws and arms relate to one another. This essay seeks to explore the relationship between the arms and laws of sovereignty by turning to Shakespeare’s Coriolanus (1608), a play structured relentlessly around this conflicted relationship.8 Considered in light of history, this proposition seems counterintuitive, since Coriolanus’s Roman republic predated the Justinianic code, which defines sovereignty in a context of imperial and monarchical rule. Yet Shakespeare depicts Roman preoccupation with sovereign power even within the context of a republican body politic.9 Filtering his portrait of Rome through the actions and opinions of Coriolanus, Shakespeare depicts how the hero, through his exceptional status as both human and divine, Roman and Coriolanian, claims the decisionist power to determine the republic’s exercise of arms and laws. Balancing such martial and civil power is necessary for state sovereignty in Shakespeare’s Rome. But Coriolanus’s attempt to decide exceptions to the law, in provoking the dissent of citizens, instead results in a clash between the forces of arms and laws in the play. Shakespeare thus dramatizes Justinian’s formulation of sovereignty and exposes the challenge of its simple equation: rather than cooperating to form “good government,” martial and civil law compete in the republic. Sovereignty in Shakespeare’s Rome lies not in arms and laws, but instead in deciding between one and the other.

Roman laws in Coriolanus Coriolanus begins with violent revolt. Angry citizens mutiny against the republic, threatening to withdraw from Rome. They storm the capitol with “pikes” (1.1.22), bats, and clubs (55), an action that, as the Arden editor notes, is nearly unique among early modern plays.10 This opening violence initiates the play’s narrative arc, which traces a series of martial events: beginning with the domestic rebellion of the plebeians, the play then shifts to foreign war, depicting Coriolanus’s military prowess against the Volscians, only to depict further rebellion as Coriolanus attacks Rome with the Volscian leader Aufidius by his side. This cycle of

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violence finally terminates with Coriolanus’s death at the hands of Aufidius. The play’s characteristic of violent action can be overstressed, however. The first line, after all, initiates a pause: “Before we proceed any further, hear me speak” (1.1.1). The First Citizen begins in the manner of a general marshalling troops: “You are all resolved rather to die than to / famish?” (3–4). If so, he claims, “Let us kill [Coriolanus]” (9). This eager militarism sets the scene for Coriolanus’s later entry. But when the First Citizen ends his rousing cry with yet another question, “Is it a verdict?” (10), he exposes the legal rather than martial undertone to this opening exchange. He consults his troops as if they were a jury. Furthermore, the citizens weigh evidence in the rest of the scene, considering Coriolanus’s pride on the one hand and his service on the other. Such an exchange evokes the work of law courts and judicial interpretation more than the agitation of an unruly crowd. The First Citizen presents an extended case against Coriolanus (1.1.14–24), charging inequitable distribution of resources caused primarily by the accused. He ends with a defense of himself as witness: “I speak this in hunger for bread, not in thirst for revenge” (23–24). Then the Second Citizen plays defense attorney, introducing contradictory evidence – “consider you what services he has done for his country?” (29–30) – and cautioning the First Citizen, “nay, but speak not maliciously” (34). This citizen also defends Coriolanus’s pride as a quality “he cannot help in his nature” (40). Yet the First Citizen rebuts, saying, “I need not be barren of accusations” (43–44). If his first set of claims is thrown out of court, he can name any number of other “faults” in Coriolanus (44). Despite their apparent rush to violence, then, the citizens manage to tease out the complexities of the legal case – is character evidence admissible in the trial? Is Coriolanus’s pride relevant or is its use as evidence merely malicious? Such questions seem at odds with the mutinous and martial violence so frequently noted in accounts of the play. But, as we will see, legal questions are at the heart of Coriolanus. In the scholarly attention devoted to the play’s compelling depictions of war, the body, and family, its legalism tends to be overlooked. What, a reader might ask, does this play about war have to do with law? It is rarely noted that the play’s opening depicts the agitation that led several decades later to the initiation of written Roman law. The play begins in 494 BC as the republic grants, in response to the citizens’s threatened mutiny, their petition to establish political representation in the tribunate. Historically, this legal triumph for the citizens culminated in 451 BC with an end to the patrician and priestly monopoly of law


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through the formation of a republican constitution in the Twelve Tables.11 Shakespeare gestures toward the history of the citizenry’s legal concerns with the language of testimony and verdict in the first scene: despite their weapons, his mutineers want justice, not bloodshed. Specifically, they aim to counter the abuse of law by patricians who “repeal daily any wholesome act established against the rich, and provide more piercing statutes daily, to chain up and restrain the poor” (1.1.81–84). The First Citizen lays out their complaint, one based in a legal argument rather than the violent lawlessness more frequently noted of the play: the patricians use law as a form of torturous imprisonment to “chain up” and “restrain” (83) citizens. In response, the citizens demand their own legal protection, now granted in the five tribunes. Yet, in this play about Coriolanus, Shakespeare depicts the triumph of the citizens’ petition only indirectly, embedding it in the hero’s disdainful statement about them: “They vented their complaining, which being answer’d / And a petition granted them, a strange one, / To break the heart of generosity / And make bold power look pale, they threw their caps” (1.1.208–211). Shakespeare represents the petition through the hero’s patrician viewpoint and thus leaves the audience to interpret his dismissive lines. Clearly, to Coriolanus, the petition appears to be a political and legal disaster since it endangers the “bold power” of the patrician class. He thus terms it, with Menenius, a “strange” petition, a term that draws attention to the legislation’s innovative nature. This petition challenges prior custom, by which leaders voluntarily redistribute what the First Citizen terms their “superfluity” (16). Now citizens, rather than waiting for such “generosity,” can turn to law instead. Indeed, this mob fights law with law. This significant legal concession of the patricians in creating tribunes only anticipates further changes ahead: as Coriolanus puts it, “it will in time / Win upon power, and throw forth greater themes / For insurrection’s arguing” (1.1.218–20). Here Shakespeare echoes Plutarch, whose Martius complains how citizens’ “disobedience will still growe worse and worse: and they will never leave to practise newe sedition, and uprores.”12 Both Shakespeare’s and Plutarch’s Coriolanuses prophetically gesture toward the famous legal victory of 451 BC with the Twelve Tables. Shakespeare does not celebrate this moment as the birth of written law, however. Instead, Coriolanus imagines a disastrous martial outcome of such popular activism: it is “insurrection’s arguing.” Coriolanus casts legal and political argument as a military uprising that wins its case through violence. Rather than interpreting compromise, as exemplified in the establishment of the tribunate, as the source of peace and good government, he casts it as a

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prelude to violence, just as he views the republican government, with its multiple rather than individual rulers, as an invitation for chaos not order: “when two authorities are up, / Neither supreme,” Coriolanus complains, “how soon confusion / May enter ’twixt the gap of both” (3.1.108–10). To Coriolanus, tribunes and patricians, laws and arms, sit uncomfortably together, undermining rather than securing the sovereignty of the republic itself. Shakespeare signals the play’s conflict between the forces of arms and laws in his repeated use of one word: “proceed,” a word that most obviously signifies the rush to action – the going forward of the mutinous men. “Before we proceed,” the First Citizen begins, “hear me speak” (1.1.1). In the citizen’s equation, procedure is action, while speech is the pause. Sicinius describes the hasty plan to execute Coriolanus in this manner as well: “we’ll proceed” (3.1.330). Yet “proceed” also signifies, as suggested above, a legal trial. Claiming to reach a “verdict,” the citizens “proceed” with their legal case toward sentencing and punishment. As Menenius later tells the eager tribunes, “proceed by process” (3.1.311), “temp’rately proceed to what you would / Thus violently redress” (217–18). Menenius, in contrast to the citizens and tribunes, employs the term “proceed” as a law-based substitute for violent, retributive action. Further, the word can denote the redistribution of wealth, as he reveals in his fable of the belly: “no public benefit which you [citizens] receive / But it proceeds or comes from them [patricians] to you” (1.1.151–52). The multiple connotations of the word draw attention to the conflicted status of procedure in Shakespeare’s Rome. Between new laws and wartime leaders, Rome suffers a procedural crisis. On the one hand, process is alarmingly innovative, as the tribunate exercises its new political muscle and Coriolanus asserts wartime prerogative. On the other, corruption characterizes both legal and martial procedure, as desire for the common good yields to self-interest. Process is a tangle of new yet potentially corrupt arms and laws, frustrating efforts at good government precisely at the moment when the Roman constitution, vital to the republic’s success, is emerging.

Coriolanus’s arms As Menenius and the citizens debate procedure, Coriolanus stands apart. He is largely indifferent to the inequities that benefit him: he is a figure of “surplus” (1.1.44) who “pays himself” (32) while the citizens starve. He scoffs at the masses and their proceedings, refusing to trust them, or even to engage with them, most notably in his refusal to show his


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wounds at the election ceremony for consul: “Let me o’erleap that custom” (2.2.136). While the citizens are associated with procedure in both its legal and active forms, Coriolanus represents a type of martial force that does not obey the laws either of nature or community. In a point made most clearly by Janet Adelman, he defies the laws of nature in taking blood for milk, and blows for affection: in doing so, he “nearly succeeds in transforming himself from a vulnerable human creature into a grotesquely invulnerable and isolated thing.”13 Coriolanus repeatedly highlights his isolated singularity. He stands alone against the city of Corioles. Where he should have had an army inside the gates, instead he becomes the sole warrior, breaking through the city walls. He also stands against the nobles in wanting to beat the citizens with his lance alone (1.1.195–99); further, he wishes to engage singly in war with Aufidius: “I’d revolt to make / Only my wars with him” (232–33). He desires, as critics from Stanley Cavell to Janet Adelman to Arthur Riss have argued, to invent himself, rename himself, and prove self-sufficient.14 Coriolanus “cannot imagine,” Cavell writes, “that there is a way to partake of one another, incorporate one another, that is necessary to the formation rather than to the extinction of a community.”15 Where others have a community or, as Menenius puts it in his fable of the belly, a corporation, Coriolanus instead stands outside of this natural body. He is, as Lartius terms him, “a carbuncle entire” (1.4.55). According to the constitution of the Republic as rehearsed by Cicero in De Legibus, behavior such as Coriolanus’s falls under the prerogative of a wartime leader. In Book 3 the speaker Marcus elucidates how, “With respect to the army, and the general that commands it by martial law, there should be no appeal from his authority. And whatever he who conducts the war commands, shall be absolute law, and ratified as such.”16 It is not that Cicero sanctions lawless rule, since he carefully analyzes how two magistrates should be “invested with sovereign authority,” including “supreme authority over the army.”17 Nevertheless, in wartime, authority needs to be consolidated in one ruler: “When a considerable war is undertaken, or discord is likely to ensue among the citizens, let a single supreme magistrate be appointed, who shall unite in his own person the authority of both consuls. . . . And when such a dictator or master of the people is created the other magistrates shall be suppressed.”18 Focused on protecting Rome in wartime while discounting ceremonial ritual at home, Coriolanus attempts to function as this supreme single magistrate. Indeed, in contrast to Sicinius and Brutus, Coriolanus claims to protect “the most fundamental part of the state” (3.1.150), even if this defense involves a “change on’it”

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(153). Coriolanus defends “what’s meet” over what is strictly law (166–68). But however much Coriolanus’s actions might conform to the time of arms, he refuses to follow the proper channels for garnering such “single, supreme” power, insisting he “o’erleap that custom” (2.2.136) of displaying wounds to gain the consulship. As Cicero writes, this wartime magistrate can rule only “if the senate so decrees, for six months only.”19 By contrast, Coriolanus does not, as his mother Volumnia notes in frustration, even wait for his election before making his contempt for law evident. This lawlessness fuels the citizens’ charge against Coriolanus: as Brutus claims, “he affects tyrannical power” (3.3.2); he has shaped himself “into a power tyrannical,” for which he is “a traitor to the people” (3.3.65–66). Coriolanus favors independent action, scoffing at how “custom” produces only an accumulation of “dust” and “error” (2.3.116–23). “He hath,” as Sicinius and Brutus claim, “resisted law, / And therefore law shall scorn him further trial / Than the severity of public power” (3.1.265–67). Sicinius further terms him “traitorous innovator,” and accuses him of “affecting one sole throne” (4.6.32). This charge of innovator is not simply synonymous, as the Arden edition glosses it, with “revolutionary, or rebel,” but instead with one who invests or expands the laws, one who refuses to obey “custom” (2.3.116, 117, 141). Given the procedural crisis sketched in the play’s first acts, Coriolanus might be forgiven for his skeptical attitude toward such custom. Indeed, the status of custom, or common law, is far from secure in the play. On the one hand, the tribunes, despite their repeated defense of custom, through their very office challenge it: in historical terms, establishing the tribunate altered patrician custom and initiated what would become the statute-based (rather than merely customary) Roman constitution. Thus the characters who charge Coriolanus with lawlessness, the tribunes, are themselves innovative products of a recent statute, rather than customary representatives of the people. Yet the play, while hinting at such legal complexities, focuses its representational energy on the allegedly tyrannical behavior of Coriolanus, heaping the terms “tyrant” and “traitor” on him. Indeed, in his singularity and lawlessness, he closely fulfills the definition of a tyrant established by Shakespeare’s contemporaries, articulated most lucidly by Jean Bodin in The Six Bookes of a Commonweale. Unlike the king who “takes pleasure to see his subjects, and to be of them oftentimes seen and heard,” instead “the [tyrant] feareth their presence, and hideth himself from them, as from his enemies . . . the one measureth his manners according to his lawes; the other measureth


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his laws, according to his own disposition and pleasure.”20 The agonistic relationship of the tyrant and the populace aptly parallels Coriolanus’s attitude to Rome’s citizens – he treats them as his enemies. In deciding to ignore the election custom, to risk his life behind the walls of Coriolus, and to deride new laws establishing the tribunate, Coriolanus “measureth his laws, according to his own disposition and pleasure.”

Sovereignty and the exception Defending Rome, Coriolanus stands outside of the republic’s laws in a position of supremacy that appears to the tribunes as tyranny. Yet to Coriolanus, the tribunes usurp patrician power and in doing so alter custom. Who, the play asks us to consider, has the power to decide exceptions to Roman law and custom? Both the tribunes and Coriolanus assert their right to decide the exception. In this struggle, Shakespeare idealizes the representatives of neither laws nor arms, neither the tribunes nor Coriolanus. He thus heightens the play’s decisionist dilemma: a political solution cannot be easily located in an individual character’s virtue. If our instincts tend toward the constitutional, Shakespeare undercuts the clarity of this legal position by depicting not only the instability of custom but also the ambition of the tribunes, perpetually concerned for their own authority: Brutus worries with Sicinius that, were Coriolanus elected consul, “our office may / . . . go sleep” (2.1.220–21) and “our authority’s for an end” (242), lines that focus on their bureaucratic power, not the common welfare. By contrast, if we support martial power as a guardian of state stability, the play depicts Coriolanus’s inconstancy, as he veers from words to arms, from potential compromise to angry rebuttal, from Roman warrior to Volscian traitor. With hope neither of reform nor reconciliation between Coriolanus and the citizens, the play stages the crisis posed above: who decides? This question resonates with the formula on sovereignty offered by the German jurist of the 1930s Carl Schmitt: “the sovereign is he who decides on the state of the exception.”21 Elaborating, Schmitt writes, “the exception is even more interesting than the regular case. The latter proves nothing; the exception proves everything. The exception does not only confirm the rule; the rule as such lives off the exception alone.”22 Schmitt’s analysis of the exception, made in the context of his larger argument justifying sovereign power above the law, helps expose one layer in the conflict between Coriolanus and the tribunes. To decide the exception as it concerns arms and laws – that is, to decide when constitutionalism must cede to reason of state, and when laws fall in favor

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of arms – is to act as sovereign, even in the context of republican Rome. In this light, when Coriolanus obeys or disregards custom at will, he attempts to exercise sovereignty over the tribunes and patricians who claim such decisionist power. Coriolanus does not merely bid to decide the exception, however. In acting as both an exemplary figure of war and an isolationist critic of custom, he stands as the exception himself. The Roman republic, to paraphrase Schmitt, “lives off of” his exceptionalism, relying on it for physical safety. Only Coriolanus saves the state from the Volscians in the first half of the play: his “extremity” (4.5.79) is demonstrated in “painful service” and “extreme dangers” (69–70). Coriolanus draws attention to his own singularity, telling his mother, for example, “you were used to say extremities was the trier of spirits” (4.1.3–4). Unrestrained in his hyperbolic speech, despite the pleas of his allies (“be calm” [3.1.36, 57], “no more” [73, 114], “not now” [62], “enough” [138]), he also ignores the tribunes’ more self-serving command to “pass no further” (24). Laws, rules, and limits do not bound this singular hero. Functioning as the exception by virtue of his military prowess, Coriolanus requires wartime to bolster his claim to sovereignty. He celebrates stormy conditions as the weather that displays his strength. Recounting his mother’s childhood advice, he claims “when the sea was calm all boats alike / Show’d mastership in floating; fortune’s blows, / When most struck home, being gentle wounded, craves / A noble cunning” (4.1.5–8). Coriolanus’s metaphor is telling: he relies on extreme conditions, “fortune’s blows,” to demonstrate his worth and sovereignty. Coriolanus’s description of his own exceptional powers as the superior sailor directly resonates with Cicero’s characterization of the wartime leader, who must assume absolute power in order to protect the republic. As Cicero’s Scipio tells Laelius at the end of the first book of De re publica, in periods of peace and tranquility, corruption can flourish since “license is wont to prevail when there is too little to fear, as in a calm voyage, or a trifling disease. But as we observe the voyager and invalid implore the aid of some competent director, as soon as the sea grows stormy and the disease alarming, so our nation in peace and security commands, threatens, resists, appeals from, and insults its magistrates, but in war obeys them as strictly as kings.”23 As a wartime leader, Coriolanus assumes this sovereignty of Cicero’s “kings,” and attempts to exercise the decisionist power to rise above the law. When the threat of war subsides, however, the other half of Coriolanus’s exceptionalism appears. The epitome of Roman military power, Coriolanus is also, by virtue of such prowess, an oddity among


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his fellow citizens. Indeed, his martial singularity in defending the republic feeds the disdain that leads him to demand sovereignty over law and custom. He is thus twice exceptional, an exemplary military leader and a lawless outcast. He is “a strange one” (4.5.21) and “a strange guest” (36). He also is out of tune, being “unmusical” and “harsh” (58–59). Coriolanus’s double status as war hero and lawless tyrant appears in characterizations of him both by critics, who deem his apparent invulnerability to be grotesque, and by characters, who repeatedly comment on his strange peculiarity.24 As Volumnia describes him, “As far as doth the Capitol exceed / The meanest house in Rome so far my son . . . does exceed you all” (4.2.39–42). With the end of war, Coriolanus’s lawlessness, acceptable in a wartime leader who protects the state, is deemed criminal and he becomes an outcast, a figure of exile. He is, to follow the terminology of Giorgio Agamben’s Homo Sacer (1998), “taken outside” (ex-capere), abandoned or banned from political life.25 Agamben, in critiquing Schmitt’s theory of absolute sovereignty, explores the connection of sovereignty and exile that Shakespeare develops through Coriolanus. Both ruler and outcast are, to Agamben, exceptional, singular, and outside of the law: “he who has been banned is not, in fact, simply set outside of the law and made indifferent to it but rather abandoned by it, that is exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable. It is literally not possible to say whether the one who has been banned is outside or inside the juridical order.”26 Agamben’s analysis of the sovereign in relationship to the outcast (the homo sacer) offers, beyond Schmitt’s celebration of sovereignty above the law, a means of understanding the peculiar status of the exception as it is figured in Coriolanus: he functions as both sovereign and exile, a figure who condenses the parallel attributes of sovereign power and bare life. That is to say, as an exile Coriolanus stands on the “threshold” of the state just as he had done as war hero. These apparently opposed roles combine in a figure struggling for what Arthur Riss terms “imperial self-hood.”27 Exceptional both as military hero and exiled traitor, Coriolanus struggles for self-sovereignty but doing so doubles as a bid for sovereign power within the republic itself. Of course, when first in exile Coriolanus hardly seems exceptional. Instead, his union with Aufidius initially functions as an erotic homecoming. The formerly single warrior now finds acceptance in the arms of a fellow soldier who can “twine” his “arms” about him (4.5.107–08). Aufidius’s speech depicts the partnership he forms, at once hostile and sexual, with Coriolanus: “we have,” he claims of his nightly dreams,

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“been down together in my sleep, / Unbuckling helms, fisting each other’s throats” (125–26). In contrast to Coriolanus’s mute and weeping wife, Aufidius matches Coriolanus line for line and blow for blow. Furthermore, Aufidius incorporates Coriolanus, saying “come, go in, and take our friendly senators by the hand” (132–33) and “take / Th’one half of my commission” (138–39). Absent from the play so far, the language of partnership appears productively to counter the earlier discourses of war and tyranny. Now, just as Roman tribunes celebrate “th’present peace” (4.6.2), Coriolanus and Aufidius form an alliance, increasing audience hope for a peaceful resolution. Despite this promising coupling, in exile Coriolanus remains the singular exception, the “lonely dragon” who will, he claims, “exceed the common” (4.1.31). Aufidius greets him as “thou noble thing,” (4.5.117), “most absolute sir” (137), and the Volscians deem him “the rarest man i’th’world” (163–64), “their god . . . like a thing / Made by some deity rather than nature” (4.6.91–92). Aufidius’s soldiers “use him as the grace before meat” (4.7.3), and “all places yield to him ere he sits down” (28). His singularity is later deemed “witchcraft” as his “dragon-like” fighting draws more Volscians to him. Wherever he travels, he stands out from his peers, not only asserting his own sovereign power, vowing revenge against those who “forsook” him (4.5.77), but also alienating Aufidius in being overly popular with his soldiers. Despite the early and hopeful partnership of Coriolanus with Aufidius, then, the former ascends to the status of a rare, absolute god, a form of exceptionalism that exceeds even his earlier status in Rome. Through his rarity, whether in arms or exile, he threatens the customs, laws, and hierarchies of the nations at whose threshold he stands, be it in Rome or in the Volsces.

Homo sacer The salvation of the republic, and the temporary resolution of the conflict between laws and arms, finally hinges on a sacrifice. With Coriolanus “an outcast, a banned man, tabooed, dangerous,”28 as Agamben terms the homo sacer, he remains safe so long as he retains his military zeal. With his concession to law over arms, however, comes his sacrificial demise. Although Volumnia is on the front lines in cheering her son’s feats of arms, she consistently urges him toward more politic power. Yield, she tells him, to the election custom, and “frame” himself to the tribunes as “hereafter theirs” (3.2.84–85) in order to gain sovereignty. He nearly does, but cannot. These characters replay this exchange at the play’s end, where she again, with much higher stakes,


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persuades him to reconcile and “frame convenient peace” (5.3.191). Earlier Coriolanus condemns such framing – it is emasculating, based in a “harlot’s spirit” (3.2.112), a “eunuch” or “virgin voice” (114). His sexual slurs betray his discomfort with any kind of human union: to reconcile, even in a political arena, is to compromise oneself physically. To Volumnia, however, reconciliation represents a bid for power: “put your power on well” (17–18), she tells him in preparation for the election ritual. In his “dangerous stoutness” (127), being “too absolute” (39), Coriolanus refuses to integrate martial with political power, arms with laws, or himself with his fellow citizens. As a result of such refusal, his countrymen exile rather than elevate him. By contrast, Coriolanus’s final action, framing the peace, achieves such integration of the dual aspects of sovereignty (laws and arms) that have shaped the play. In capitulating to his mother’s will, he achieves momentarily the triumph she has sought for him all along and the good government that the republic strives to establish. Creating peace with the Roman republic also allows Coriolanus to exercise decisionist power over the state that exiled him, ironically triumphing through his capitulation. Yet he understands this action not as a triumph securing his good name, but as a sacrifice: “You have won a happy victory to Rome; / But for your son, believe it, O, believe it, / Most dangerously you have with him prevail’d” (5.3.185–87). Coriolanus recognizes, as his mother does not, that embracing peace will cause his death. According to the logic of arms, his shift of allegiance from war to peace represents a treachery deeper than his switch from Romans to the Volsces. The play’s most dramatic shift, this move to peace, is notably not represented on stage. Instead, as the audience we only see Aufidius ape the Roman’s martial zeal. Just as Coriolanus earlier dismisses compromise as the effeminizing spirit of harlots, eunuchs, and virgins, so does Aufidius interpret the recent peace: it is the product of “certain drops of salt” produced by “his wife and mother” (5.6.93–94), making this formerly martial partner a “boy of tears” (100). With his own earlier misogynist language hurled back at him, Coriolanus faces familiar accusations of lawlessness as well: Aufidius claims the Roman overlooked the “counsel o’th’war” (97) and is further guilty of “breaking his oath and resolution” (95). Such accusations take us full circle, back to the play’s third act and the failed election ritual where Coriolanus faced similar charges. In both clashes with the law, he is severely punished, first with exile, now with execution. It can be argued that with his sacrificial death comes the welcome demise of the exception itself. Now Rome can strive to establish

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the peace and constitutionalism that Coriolanus, as a figure of war, as an exile, and as personal if not Republican sovereign, threatens throughout and capitulates to only in the end. As he admits to his mother after her final, successful lobbying effort, “all the swords / In Italy . . . / Could not have made this peace” (5.3.207–09). He rehearses, even if he does not recognize, the familiar paradox about fighting for peace, and he thus draws attention to the cycle of martial violence that he would, without compromise, have continued. These lines aptly frame his own status. More broadly, these lines articulate the status of the exception itself, which is based in an equivalent paradox of suspending law in order to sustain it. Yet Coriolanus’s demise does not resolve the play’s evident paradoxes of war and peace, lawlessness and law, even as he sacrifices himself for law and peace at the expense of his personal rule. Instead, his final phrase, “lawful sword” (5.6.129), reinforces an uncomfortable combination of arms and laws, which Rome strives but fails to reconcile.

Notes 1. Justinian’s Institutes, trans. Peter Birks and Grant McLeod, with Latin text by Paul Kreuger (Ithaca, NY: Cornell University Press, 1987), pp. 32–33. 2. Henry Bracton, De Legibus et Consuetudinibus Angliae or On the Laws and Customs of England, trans. Samuel E. Thorne, vol. 2 (Cambridge, MA: The Belknap Press of Harvard University Press, 1968); Latin text, ed. George E. Woodbine (New Haven, CT: Yale University Press, 1922), libr. 1, p. 19. Here, Bracton cites the prologue of the Institutes. 3. Sir John Fortescue, A Learned commendation of the politique lawes of England, trans. Robert Mulcaster (London: Richarde Tottel, 1573), p. 4v. Fortescue distinguishes between the king’s “dominium political and dominium regale,” p. 4 v. 4. In England, however, this distinction between laws and arms belies their connection, under the law of arms, within the civil law’s Court of Chivalry. This “lawe of Armes,” as Gerard Legh writes in Accedens of Armorie (1562), “is most part directed by ye Civile lawe” (cited in G. D. Squibb, The High Court of Chivalry: A Study of the Civil Law in England [Oxford: Oxford University Press, 1959], p. 165). The law of arms concerned legal issues ranging from prisoners of war to treason to heraldic matters, although, as Squibb writes, the majority of evidence concerns the last category, heraldic disputes. If most generally, the laws of arms “not only govern the right to arms but also the manner in which lawful arms are to be used” (p. 189), in practice, “while it is clear that the manner in which arms are to be used in a matter of law, the records of the Court of Chivalry throw very little light on the subject” (p. 190). 5. Francis Bacon, “The Case of the Post Nati,” in Works, ed. James Spedding, Robert Leslie Ellis and Douglas Denon Heath, 7 vols. (London: Longman et al., 1857–59), p. 229. Bacon’s evidence is the following passage in Bracton, De Legibus, p. 309. 6. Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven, CT: Yale University Press, 1996); Francis Oakely, “Jacobean Political Theology: The


7. 8.

9.

10.

11.

12.

13.

14.

15. 16.

17. 18. 19. 20.

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Ordinary and Absolute Powers of the King,” Journal of the History of Ideas 29:3 (1968), 323–46; Brian Tierney, “Bracton on Government,” Speculum 38 (1963), 295–317. Bracton, De Legibus, vol. 3, p. 213. In addition to the essays by Adelman, Cavell, and Riss discussed below, the following studies have been helpful to me in thinking through the issues of this essay: Andrew Gurr, “Coriolanus and the Body Politic,” Shakespeare Survey 28 (1975), 63–69; Coppélia Kahn, Roman Shakespeare: Warriors, Wounds, and Women (New York: Routledge, 1997), pp. 144–59; Thomas Sorge, “The Failure of Orthodoxy in Coriolanus,” Shakespeare Reproduced: The Text in History and Ideology, ed. Jean E. Howard and Marion F. O’Connor (London: Methuen, 1987), pp. 225–41; Zvi Jagendorf, “Coriolanus: Body Politic and Private Parts,” Shakespeare Quarterly 41:4 (1990), 455–69. Indeed, Jonathan Goldberg, James I and the Politics of Literature (Stanford, CA: Stanford University Press, 1989), assesses the play as one “devoted to the absolutist project” (p. 187). Although Romeo and Juliet opens with a brawl, only Jack Straw (1593) and Coriolanus open with a staged act of mutiny. See Philip Brockbank, ed., Coriolanus, The Arden Shakespeare (1976; rpt. London: Methuen, 1984), p. 95. All further citations refer to this edition. I am grateful to Karen Cunningham in helping me to refine this point. On the initiation of Roman law with the Twelve Tables, see H. F. Jolowicz and B. Nicholas, Historical Introduction to the Study of Roman Law (Cambridge: Cambridge University Press, 1939); B. Nicholas, An Introduction to Roman Law, 3rd ed. (Oxford: Oxford University Press, 1988); Peter Stein, Roman Law in European History (Cambridge: Cambridge University Press, 1999). Plutarch, “The Life of Caius Martius Coriolanus,” in Lives of Noble Grecians and Romanes, trans. Thomas North (1579). Excerpted in Brockbank, ed., Coriolanus, p. 335. Janet Adelman, Suffocating Mothers: Fantasies of Maternal Origin in Shakespeare’s Plays, “Hamlet” to “The Tempest” (New York: Routledge, 1992), p. 149. See Arthur Riss, “The Belly Politic,” English Literary Renaissance 59:1 (1992), 53–75, whose excellent essay explores the relationship between language of the body and body politic in the play: “Coriolanus falls because he asserts himself as a private, absolutely enclosed, literal ‘body’ in a society that mandates he embrace an ideology of the body politic” (54). Stanley Cavell, Disowning Knowledge in Six Plays of Shakespeare (Cambridge: Cambridge University Press, 1987), pp. 143–78, 167. Cicero, De Legibus, Book 3, trans. C. D. Yonge, in The Library of Original Sources, ed. Oliver J. Thatcher (New York: University Research Extension Co., 1907), vol. 3: The Roman World, p. 225. Cicero, De Legibus, p. 226. Cicero, De Legibus, p. 226. Cicero, De Legibus, p. 226. Jean Bodin, The Six Bookes of a Commonweale, trans. Richard Knolles (London, 1606), p. 212. Kenneth Muir, “The Background of Coriolanus,” Shakespeare Quarterly 10 (1959), 137–46, notes the resonance of Shakespeare’s play with Jean Bodin’s critique of democracy.

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21. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge: MIT Press, 1985), p. 21. For a powerful recent critique of Schmitt, which recenters the role of the aesthetic in the political by challenging Schmitt’s readings of Leviathan and Hamlet, see Victoria Kahn, “Hamlet or Hecuba: Carl Schmitt’s Decision,” Representations 83 (Summer 2003), 67–96, 70. There is an impressive bibliography of criticism on Schmitt, much of which Kahn references. In addition to Kahn, criticism that has especially influenced my own includes Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford, CA: Stanford University Press, 1998); and Samuel Weber, “Taking Exception to Decision: Walter Benjamin and Carl Schmitt,” Diacritics 22:3/4 (1992), 5–18. 22. Weber, “Taking Exception to Decision,” p. 15. 23. Cicero, De re publica, trans. C. D. Yonge, in The Library of Original Sources, pp. 232–33. 24. For the term “grotesque,” see Adelman, Suffocating, p. 149, and Jagendorf, “Body Politic,” 458. 25. Agamben, Homo Sacer, p. 18. 26. Agamben, Homo Sacer, pp. 28–29. 27. Riss, “The Belly Politic,” 68. 28. Agamben, Homo Sacer, p. 79.

14 Measure for Measure and the Law of Nature Elizabeth Hanson

In a famously difficult passage from the first act of Measure for Measure (1604), Claudio, who is being led away to prison for the crime of getting his betrothed with child, responds to Lucio’s query “Whence comes this restraint?” with a witty paradox: From too much liberty, my Lucio. Liberty, As surfeit, is the father of much fast; So every scope by the immoderate use Turns to restraint. Our natures do pursue, Like rats that ravin down their proper bane, A thirsty evil; and when we drink, we die.1 The difficulty of the passage arises from the awkwardness of its concluding metaphor, which apparently represents “immoderate use,” twice, first in the rat’s voracious consumption of the ratsbane and then again in the fatal drinking to which the poison drives him. This doubling introduces an uncertainty into our interpretation of the metaphor: was Claudio’s sexual expression of “our natures” the initial “ravining” or the poison-induced drinking, and, if we decide this question, how do we interpret the other term? Claudio’s point, of course, is simply that he is the author of his own misfortune, and the passage is one of several instances in the play where characters conflate their own actions with the punitive operation of the state upon them, as when the disgraced deputy, Angelo, pleads “let my trial be mine own confession” (5.1.370). In this respect, the passage can be adduced for a Foucauldian reading of the play, one that stresses the way the play’s action, in which one character after another is made to confront his or her transgressive sexuality under the secret gaze of their supposedly absent ruler, works to internalize through 249

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recourse to “our natures” a disciplinary regime hitherto based on state violence.2 But the doubling which forces us to stumble over the metaphor’s precise application to Claudio’s crime also seems to insist on what the libertine Lucio assumes and Claudio’s response would deny: that the natural transgression and the subsequent juridical restraint are logically two distinct events, that the force which drives the rat to his death is not the same as the appetite which led him to the bane in the first place. Or to put the point more explicitly, the awkwardness of the metaphor introduces an undecidability with respect to the status of the law which is being brought to bear on Claudio at this moment, the extent to which it is and is not congruent with our ratlike “natures.” “Nature” and its derivatives occur fourteen times in Measure for Measure. Sometimes the word refers simply to the quality of a thing, as in Escalus’s comment “a power I have, but of what strength and nature / I am not yet instructed” (1.1.79–80), and at others to the ethically normative, as when the Duke says that Marianna’s brother was in “his love toward her ever most kind and natural” (3.1.220). However, unlike in King Lear, where Shakespeare demands that his audience confront the contradictions which converge on what Raymond Williams describes as “perhaps the most complex word in the language,” in Measure for Measure Shakespeare seems to accent the meaning Claudio attaches to it: a condition of embodiment which manifests as ineluctable drives, the “natural guiltiness such as is [Claudio’s]” (2.2.140) which Isabella asks Angelo to detect in himself, or the “natural edge” which Lucio asserts that Angelo blunts with “study and fast” so that he never feels “the wanton stings and motions of the sense” (1.4.59–61).3 “Nature” is thus semantically linked with “blood,” which occurs six times, all but once with reference to the puritanical deputy who “scarce confesses / That his blood flows; or that his appetite / Is more to bread than stone” (1.3.51–53), and always signifying a sexual compulsion, a “heat” (5.1.470), or “prompture” (2.4.177), or “resolute acting” (2.1.12) which carries Angelo to his disgrace but which is nevertheless as universal as eating bread or making water. “Nature” in Measure for Measure is the opposite term to “law”: that on which “strict statutes and biting laws” (1.3.19) are brought to bear but also, as the bawd Pompey’s query as to whether Escalus “mean[s] to geld and splay all the youth of the city” (2.1.227–28) implies, a contrary and possibly greater commandment. At the same time, as Claudio’s ratsbane metaphor suggests and the conclusion which substitutes weddings for executions (and other forms of “strict restraint” [1.4.4] such as the rule of the Poor Clares to which Claudio’s sister, Isabella, wishes to submit) also implies, the play may show us that such

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opposition is more apparent than real, that “nature” is the means through which the “law,” in its most powerful – or perhaps only most pragmatic – form, operates. But what exactly is this law which collides (or colludes) with nature in the play? While the play gives us “nature” as an interpretive term applicable to certain experiences, “law” is an object of representation, visible in the play in the form of magistrates, depositions, provosts, prisons, and executioners, that is, as mimesis of civil practice. The result is that it seems to be not an idea but a reality, and the play’s topic a set of questions about the proper regulation of subjects by a sovereign state.4 But the specific operation of the law which the play stages, the regulation of noncommercial sex by the state, in fact had no obvious referent in Shakespeare’s England. Matters such as out-of-wedlock pregnancy and adultery were under the jurisdiction of church courts, which, lacking the power of the monarch’s courts to take life, could only mete out fines and issue orders comparable to Isabella’s response to Claudio and Juliet’s predicament: “O, let him marry her” (1.4.49).5 Thus the hypothetical situation with which the play presents us is not merely “what if the sovereign state were to enforce its laws with full rigor?” but rather “what if the power of the sovereign state were brought to bear on, or even through, nature itself?” The purpose of this essay is to suggest that in posing this question, Measure for Measure, with its ambiguous entwining of law and nature, engages not only with questions of civil law such as the relationship between law and equity, absolutism and common law, and civil and religious authority, but also with contemporary discourse regarding the idea of a law of nature, that is, of compelled regularity within the order of physical creation. By the end of the seventeenth century an invocation of a law of nature was a marker for explicitly scientific discourse, as when Newton begins his Mathematical Principles of Natural Philosophy by distinguishing the moderns from the ancients on the grounds that the former “have undertaken to explain the phenomena of nature by mathematical laws.”6 When Measure for Measure was first staged in 1604 the potential for such a concept to structure an autonomous domain of scientific inquiry was already evident, particularly in the writings of Francis Bacon, but the idea was still imbricated with questions both of theology and of political sovereignty. Separating these domains to arrive at the jurisdictional assignments which Bruno Latour calls collectively the “modern constitution” was arguably the most important philosophical project of the seventeenth century.7 But my aim is not to impute to Shakespeare a specific philosophical position which can then be plotted


in a history of ideas, for I share Lars Engle’s perception that “Shakespeare embeds general ideas in their particular enactments with such complexity that his taste for embeddedness itself might be seen as an implicit critique of methodical philosophy and pure science, a critique that arises just before those discourses get started.”8 Instead, I want to suggest that we can detect in the awkwardness of Claudio’s metaphor and in the undecidability of the play’s interpretive dilemmas, all of which turn on the conflicting claims of social distinction (as between the ruler and his subjects) and universal sexuality, a demonstration of the resources and contradictions latent in the concept of a “law” of “nature” which offered a pattern of political sovereignty even as it demarcated a domain beyond its reach.

I Writing toward the end of the seventeenth century, Robert Boyle asserts in A Free Inquiry into the Vulgarly Received Notion of Nature (1686) that nature is the aggregate of the bodies that make up the world, framed as it is, considered as a principle by virtue whereof they act and suffer according to the laws of motion prescribed by the author of things. Which description may be thus paraphrased: that nature, in general, is the result of the universal matter or corporeal substance of the universe, considered as it is contrived into the present structure and constitution of the world, whereby all the bodies that compose it are enabled to act upon and fitted to suffer from, one another, according to the settled laws of motion.9 The account of nature Boyle offers here, as matter exerting force upon itself according to principles established by God at the creation, is largely consistent with Cartesian and Newtonian concepts of a physical world governed by divinely instituted laws of motion. Boyle advances it to counter what he calls the “vulgarly received notion of nature” as “a goddess or at least semi-deity,” a force operating in and through all creatures and elements determining what they must do and become. He objects to this notion on religious grounds, noting that “looking upon merely corporeal and oftentimes inanimate things as if they were endowed with life, sense and understanding . . . ascribes to nature and some other beings (whether real or imaginary) things that belong but to God,” and he lays the blame for its promulgation on Aristotle and his followers.10


Boyle’s account of nature is useful as an indication both of what the “law of nature” did not yet mean in 1604 and also of its destination as a foundational structure of early modern thought. In particular, Boyle’s formulation shows the way in which in the late seventeenth-century scientific notion of laws of nature, two intellectual traditions, both originating in the late middle ages, converge: the Judeo-Christian concept of a legislating God, advanced to supplement or, in some cases, counter Aristotelian ideas of the immanence of natural forms, and the idea of quantifiable regularities in nature whose designation as “laws” derived from a lexical exchangeability leading to semantic confusion of regula (or “measure”) and lex (or law).11 As the passage from Boyle’s treatise makes clear, in the late seventeenth century these traditions were appropriated as mutually sustaining theological and natural philosophical arguments according to which all agency is allocated to an omnipotent God at the moment of creation (although Boyle is careful to shore up this omnipotence by preserving God’s ability to override his previous decrees through the performance of miracles) and nature is construed as a kind of machine, “a rare clock, such as may be that at Strasbourg,” or “a great . . . and pregnant automaton.”12 Whatever the motivations for this settlement (Boyle’s theological and scientific commitments seem equally strong), its effect is to imagine nature as a domain without agency or any other characteristic of subjectivity. Thus, at the outset of the same treatise Boyle makes the apparently contradictory assertion that to say that the nature of this or that body is but the law of God prescribed to it, is but an improper and figurative expression . . . [for] to speak properly, a law being but a notional rule of acting according to the declared will of a superior, it is plain that nothing but an intellectual being can be properly capable of receiving and acting by a law.13 The apparent inconsistency in Boyle’s treatise, which explicates laws of motion even as it denies laws of nature, arises from the extreme asymmetry with respect to agency which Boyle insists on in the relationship between the Creator and his material creation. Properties of nature are laws insofar as God is construed (it would seem, literally) as a law-giver, but cannot be insofar as nature is understood (if metaphorically then innocuously so) as a machine. For an example of the “vulgarly received notion of nature” which he opposes, Boyle need have looked no further than The Winter’s Tale (1610–11), where Paulina speaks to Hermione’s jailer of the newborn Perdita: “This child was prisoner to the womb, and is / By law and


process of great nature, thence / Free’d and enfranchis’d.”14 Plainly, from Boyle’s perspective such talk is theologically and scientifically problematic. Not only does Shakespeare let Paulina attribute to “great nature” (the “thrifty goddess” [1.1.38] to whom the Duke refers in Measure for Measure) “things that,” Boyle argued, “belong but to God,” but in developing the personification Shakespeare clearly displaces any consideration of the specific mechanisms by which childbirth might occur.15 Thus, although on lexical grounds we can ascribe some notion of a law of nature to Shakespeare, we must concede that his understanding of nature smacks of the Aristotelianism against which a scientific law of nature was articulated later in the century. At the same time, however, Paulina’s speech actually emphasizes Boyle’s observation that the law of nature is, precisely, a figurative expression, yoking nature’s inexorable processes to the forms of civil agency and authority. In other words, like all metaphors, Paulina’s figure of speech implies the difference between tenor and vehicle, a point that is underscored by the content of this particular instance in which the law of nature simply thwarts the commands of the king. Thus, even as Paulina personifies nature she also demarcates it as otherness, that which is beyond the structures of human authority and obedience. There are two points I would make about how this passage might situate Shakespeare in relation to Boyle, the first of which has to do with the simple matter of chronology. While Boyle’s position clearly seems more modern than Shakespeare’s, in demarcating nature as a domain deaf to any law but its own inexorable physical processes, the playwright’s figurative expression evinces thinking which is arguably preliminary to the virtuoso’s experimental practice. It is worth noting that in Cymbeline (1609–10) the apparition of Posthumus’s mother refers to her baby abiding in her womb as “attending Nature’s law,” apparently referring to the nine-month human gestation, thereby associating the same natural process which concerns Paulina with measurable regularity and Shakespeare’s use of the phrase “Nature’s law” with the natural philosophical tradition which defines nature in those terms.16 Lest I seem to construe Shakespeare as an original natural philosopher, however, I should also note that the difference between nature and intellectual beings, which exposes the law of nature as a figure of speech, was hardly a novel idea in Shakespeare’s day. In fact, it had been acknowledged in the thirteenth century by Aquinas, who, according to Edgar Zilsel, accommodated it by arguing that “what promulgation is to man ‘the impression of an inward active principle is to natural things,’ ” the intellectual habit of analogy permitting him to have his Aristotelian


immanence and his Judaeo-Christian law-giving God at the same time.17 And in 1593 Richard Hooker had recognized the same problem in Of the Laws of Ecclesiastical Polity, noting that They . . . apply the name of Law unto that only rule of working which superior authority imposeth; whereas we somewhat more enlarging the sense thereof term any kind of rule or canon, whereby actions are framed, a law. . . . Wherefore to come to the law of nature: albeit thereby we sometimes mean that manner of working which God hath set for each created thing to keep; yet forasmuch as those things are termed most properly natural agents which keep the law of their kind unwittingly, as the heavens and elements of the world, which can do no otherwise than they do; and forasmuch as we give unto intellectual natures the name of Voluntary agents, that so we may distinguish them from the other; expedient it will be that we sever the law of nature observed by the one from that which the other is tied unto.18 Here, Aquinas’s analogy has become something like a jurisdictional distinction; the law of nature belongs to the category “law” but operates on a different constituency according to different principles than does the law affecting human beings. Long before Boyle, then, not only is nature imagined as law driven, but this imagining seems to entail the recognition of the difference between the natural and the human worlds. What changes is the intellectual framework within which this difference signifies, so that what for Aquinas is a simple matter of analogy, for Boyle has become a dangerous confusion. Boyle’s anxiety that the figurative might be taken literally, a consideration that is obviously irrelevant to Aquinas, brings me to the second point I would make about Shakespeare’s formulation in relation to later seventeenth-century natural philosophy. In Paulina’s metaphor Shakespeare makes explicit what I would suggest Boyle’s formulation largely suppresses: the political significance of a law of nature. The attention paid by natural philosophers from Aquinas onward to the problem of what Hooker calls “natural agents” indicates an intrinsic instability in the idea of a law of nature, a tendency in its articulations for the distinction between subject and object to collapse and require reassertion. Boyle, as we have seen, performs this last operation in a particularly stark fashion in his twin depictions of the creating, miracleperforming God and clockwork nature, eliding, for all but the moment when he asserts the metaphorical character of the law of nature, the position of the “intellectual natures,” agents and yet also creatures, who


act according to civil law. Although it has been argued that the mechanists’ asymmetrical assignments of agency reflect an absolutist politics, it seems as likely that for Boyle the reverse was true, that his insistence that the law of nature is but an “improper and figurative expression” implies that the politics underpinning civil law which operates on and through “intellectual beings” should be wholly different from those obtaining between the omnipotent creator and his mechanical creation, that the civil law should be a meshing of a commanding agency and an obeying one.19 Man, as much as God, should be clearly distinguished from nature. But this status is to be negotiated, not in the political realm where the struggle for power, and hence the arbitrary and temporary assignment of subject- and object-status, might be visible, but in the laboratory where the virtuoso (“intellectual being” that he is) traces in the mechanisms of nature the decrees of the Creator.20 Paulina’s invocation of “Great Nature” differs from Boyle’s, then, not so much in its political values as in the form of their social instantiation it implies. Confronting the tyranny of Leontes, Paulina makes “Great Nature” the ground of explicit resistance. In this respect the law she invokes is not only the law of nature (which has to do with the properties of physical creation) but also natural law, the principle invoked by Renaissance resistance theorists which limited the subject’s obligation to obey a ruler in accordance with divine law.21 But that law manifests itself here not through the subject’s conscious resistance but through the unstoppable, corporeal event of childbirth, which acquires its “legal” character only through Paulina’s “improper and figurative expression.” Rather than asserting the subject-status of the subjugated, Paulina’s metaphor deconstructs the extreme subject and object assignments which underpin absolutism; her law of nature mimics the monarchic law which it also trumps, using the forms of monarchic law (prisons and processes) to demarcate a domain where the writs of human rulers do not run and human subjects could not obey them even if they wanted to. Where Boyle uses the “laws of motion” in the service of an implicit political settlement, Paulina’s metaphor can effect only an unsettlement, parodying Leontes’s despotism in a “law” from which volition has been evacuated, a “law” which nevertheless will be recuperated as a higher, providential justice. Of course, Shakespeare is writing a play about a tyrannical king and Boyle a treatise in natural philosophy, and this difference may account both for Shakespeare’s greater political explicitness and for his subversive (as opposed to polemical) deployment of the law of nature. However, the writings of Shakespeare’s contemporary and Boyle’s cynosure, Francis


Bacon, suggest that these qualities in fact bespeak a historically specific perception on the part of the earlier writers. For Bacon, as for Hooker and Boyle, the concept of a law of nature is inseparable from that of the legislating God. The year before Measure for Measure was first performed, he wrote a “Confession of Faith” in which he affirms his belief that God created heaven and earth, and all their armies and generations, and gave unto them constant and everlasting laws, which we call Nature, which is nothing but the laws of creation; which laws nevertheless have had three changes or times, and are to have a fourth and last. The first, when the matter of heaven and earth was created without forms: the second, the interim of every day’s work: the third by the curse, which notwithstanding was no new creation, but a privation of part of that virtue of the first creation: and the last, at the end of the world, the manner of which is not yet revealed. So as the laws of Nature, which now remain and govern inviolably till the end of the world, began to be in force when God first rested from his works and ceased to create; but received a revocation in part by the curse, since which time they change not.22 While Bacon and Boyle are clearly working in a common theological tradition, however, Bacon’s emphasis here is subtly different from that of his heir. Where Boyle insists that God “is most absolute and free,” and thus potentially able to override his previous decrees at any time through the performance of miracles, Bacon is careful to specify the times of divine legislation, thereby determining a span during which the laws themselves must stand in for the legislator. God’s creation becomes, at least for the interval of fallen human life, an autonomous domain of predictable regularities, suitable for methodical investigation. Bacon might thus be said to delimit the space of experimental inquiry which Boyle fully inhabited, a space in which authority could accrue to intellectual beings. Another (albeit rather circular) explanation for Bacon’s attribution of such temporally limited autonomy to nature is his residual Aristotelianism, evident in another short treatise from 1603, A Brief Discourse Touching the Happy Union of the Kingdoms of England and Scotland, where Bacon writes of the fundamental law of nature, whereby all things do subsist and are preserved; which is, That every thing in nature, although it have his private and particular affection and appetite, and doth follow and pursue the same in small moments . . . when there is question or case


for sustaining of the more general, they forsake their own particularities and proprieties, and attend and conspire to uphold the public. So we see that iron in small quantity will ascend and approach to the loadstone upon a particular sympathy: but if it be any quantity of moment, it leaveth his appetite of amity with the loadstone, and like a good patriot falleth to the earth, which is the place and region of massy bodies. 23 Such an account of the laws of nature seems to display the tendency which Boyle deplored to attribute agency to natural bodies at the expense of God the Creator. However, what Bacon offers here is in fact a political allegory directed to the new king, instructing him to subordinate his private impulses to the needs of the commonwealth. The passage does not so much betray a naively Aristotelian view of nature as appropriate the semiautonomy of nature implicit in such a view as the vehicle for a political meaning which has to do with the direction and containment of the king’s actions. Although unusual in its self-allegorizing, this invocation of the law of nature is an example of a tendency, evident throughout Bacon’s writing, for nature to function as a field in and through which agency, human and divine, can be (sometimes rather stealthily) contained and regulated. In the Brief Discourse, Bacon makes explicit the political significance of his program to reform natural philosophy and make it a privileged intellectual endeavor, informing his new king that “there is a greate affinity and consent between the rules of nature and the true rules of policy: the one being nothing else but an order in the government of the world, and the other an order in the government of an estate.”24 At first glance, this formulation, which aligns the world God made with the “estate” James rules, might seem to compare the king to God, and thus to align natural philosophy with an absolutist politics. But the passage actually effects several subtle displacements already evident in the first analogy Bacon draws between the “rules of nature,” and – not as we might expect, the king’s proclamations – but “the true rules of policy,” that is, the preexisting but as yet unknown best methods of government. The king is in fact cast as a discoverer rather than a promulgator, a point Bacon goes on to amplify: And therefore the education and erudition of the kings of Persia was in . . . the contemplations of nature and an application thereof to a sense politic; taking the fundamental laws of nature, with the branches and passages of them, as an original and first model, whence to take and describe a copy and imitation for government.25


Of course, characterizing the king as a student of policy merely reiterates a picture which James already held of himself. But Bacon also enacts another displacement here, insisting that policy, the topic of the king’s studies, is derivative of a logically prior field, the study of nature, whose adepts it turns out are not in the first instance kings but “instructors” of kings whose precise identity Bacon elides, referring to them as the “aforesaid instructors” at their first mention.26 Moreover, in the educational program they supervise, it is impossible to distinguish the discovery of the laws of nature from subjection to them. Thus, the Persian kings contemplate “the examples of the celestial bodies, the sun, the moon, and the rest, which have great glory and veneration, but no rest or intermission,” so that they can perform “likewise the true manner of the motions of government, which though they ought to be swift and rapid in respect of dispatch and the occasions, yet are they to be constant and regular, without wavering or confusion.”27 Kings do not move planets; they are planets and, like them, subject to the laws of nature. And yet, as natural philosophers, kings can also learn and manipulate the laws to which they are to submit. In short, Bacon substitutes an epistemological privilege for an ontological one; the king realizes his “intellectual being” not through exercising a power analogous to God’s but through knowing himself and the rest of the creation as “natural agents.”

II Like James and the Persian kings, Duke Vincentio is a student of the “properties of government” (1.1.3), as he announces in the first lines of a play whose action will unfold what it means to acquire and wield such knowledge. If we take Angelo’s wondering acknowledgment to the Duke that “your Grace like power divine, / Hath looked upon my passes” (5.1.367–68) as a valid assessment of the Duke’s final position (and this is a big “if”), then what such knowledge means is not an exchange of epistemological for ontological privileges, as Bacon suggests, but an identification of them, the establishment of the Duke’s political supremacy over his people as an ontological difference through a spectacular demonstration of his knowledge of their true natures. At the outset of the play, however, the connection between knowledge of the properties of government and the ruler’s supremacy is complex, insofar as the Duke’s knowledge does not absolutely distinguish him from his subjects. In fact, it is unnecessary for the Duke to unfold his knowledge to his interlocutors, “Since,” as he informs Escalus, “I am put to know that your own science / Exceeds in that, the lists of all advice / My


strength can give you” (1.1.5–7). Not only does this experienced counselor know what the ruler does, but so it would seem does the untested Angelo to whom the Duke declares, “But I do bend my speech / To one that can my part in him advertise” (1.1.40–41). As numerous readers and audiences have noticed, if the Duke’s confidence in his counselors is justified, then he potentially will have a political crisis on his hands, his absence having demonstrated that he can be replaced, that the merely qualified is as good as the anointed. However, this crisis is averted in the final revelation that, under the Duke’s secret gaze, Angelo sought Isabella’s sexual favors in exchange for her brother’s life. Moreover, in a subtle move here at the outset, the Duke grounds Angelo’s qualifications not in training but in “nature,” the gifts of “the thrifty goddess [who] determines / Herself the glory of a creditor, / Both thanks and use” (1.1.38–40), suggesting that if the deputy is found wanting it will not be because of his inexperience, which could be remedied through more knowledge, but rather from “his private and particular affection and appetite” in Bacon’s phrase, that is, from an ontological condition. This maneuver not only ensures that any distinction which Angelo’s failure produces will be of the right kind, shoring up the king’s supremacy, but serves to proleptically align Angelo with Claudio, who in the following scene will ascribe his downfall to his ravining, ratlike nature. If knowledge of the properties of government blurs the difference between the Duke and his counselors, however, it also serves to distinguish the ruling group from those on whom they are to bring state power to bear. In Measure for Measure, Hooker’s distinction between “intellectual natures” (which, it will be remembered, he also calls “voluntary agents”) and “natural agents” is a thoroughly political one, with Vienna’s criminal inhabitants all lining up on the side of the natural and involuntary. Not only does Claudio construe himself as a compulsive animal and Pompey suggest neutering the whole city as the only solution to its vices, but Barnardine wallows drunkenly in his cell, “careless, reckless, and fearless of what’s past, present, or to come” (4.2.141–42), and Lucio celebrates Juliet’s pregnancy as a glorious agricultural inevitability, a “blossoming time / That from the seedness the bare fallow brings / To teeming foison” (1.4.41–43), the product of an activity which will end only when “eating and drinking be put down” (3.2.99). For Angelo, whose severity as an intellectual being had seemed to the other men to place him outside of nature altogether, as “not made by man and woman, after this downright way of creation” (3.2.100–01), the advent of his lust for Isabella seems to completely reclassify him as a natural agent. Lacking any ability either to comprehend or to control


himself, he slips into wondering interrogatories, “What dost thou, or what art thou, Angelo?” (2.2.173), answerable only by a tautology: “Blood, thou art blood” (2.4.15). Of course, the association of nature and crime would have been well established for Shakespeare’s audience through the Christian doctrine of the inevitability of human transgression of God’s law, instanced in Old Hamlet’s reference to “foul crimes done in my days of nature” (1.5.12). Claudio’s conflation of his crime and punishment in the image of the ravining rat works in this vein, as does Isabella’s argument to Angelo that his heart must know “a natural guiltiness” (2.2.139) like her brother’s, and the final scene in which the equivalence she had suggested between the two men is confirmed and again becomes matter for mercy.28 But the theologically resonant suggestions from Isabella, Escalus, and the Duke that Angelo had better weigh himself with Claudio are shadowed by the somewhat different construction of the situation advanced waggishly in Lucio’s assertion that Claudio “should receive his punishment in thanks” (1.4.28), but echoed in the Provost’s sober comment that Claudio is “more fit to do another such offense / Than die for this” (2.3.14–15), and even in Isabella’s reflexive “Oh, let him marry her” (1.4.49), that Claudio’s crime calls not for mercy but for repetition. Indeed the focus of the Viennese authorities (and the play’s action) on Claudio’s prenuptial dalliance as opposed to the more obviously problematic behavior of a Lucio or a Pompey, enhances the authority of the play’s more insouciant criminals, with their insistent description of Vienna’s supposed corruption as a matter simply of universal bodily functions. In other words, we come to see the Viennese crackdown as guided not so much by spiritual pride masquerading as righteousness as by a category mistake, the misrecognition of predictably occurring natural phenomena as matters of juridical regulation. The “measure” which makes an Angelo the equivalent of a Claudio may serve divine justice but it does so by marking a simple regularity in nature: young men will do it if they come to it. The play thus gives us its problem in two different keys. If Angelo’s fate is to sin in the wielding of authority, thereby mobilizing a theological discourse which will frame the Duke’s espionage as omniscience and his clemency as divine mercy, it falls to the utterly professional Escalus to persevere in the mistake of trying to prosecute nature. Escalus is “learned,” as the Duke notes, “in the nature of our people, / Our city’s institutions, and the terms / For common justice” (1.1.9–11), which is to say, possessed not only of moral probity but also of the technical skill to take depositions from witnesses and make disposition for malefactors.


He possesses the judgment which Angelo so evidently lacks with respect to the ill-advisedness of harshly prosecuting the well-intentioned and gentlemanly Claudio. But while this judgment is founded on the recognition of the truth of Isabella’s argument about the universality of “natural guiltiness,” he himself never crosses the line separating intellectual natures from natural agents. Thus while Angelo brings scandal on the law by revealing that the magistrate is not just equivalent to but worse than the malefactor he prosecutes, Escalus embodies the civil law in its most legitimate form, a position which is underscored by the fact that the malefactors he handles are the usual, not to say natural, suspects such as the bawd Pompey. In this capacity what Escalus manages to demonstrate is that the civil law is both arbitrary and impotent, as when he makes the mistake of catechizing Pompey: ESCALUS: How would you live, Pompey? By being a bawd? What do you think of the trade, Pompey? Is it a lawful trade? POMPEY: If the law would allow it, sir. ESCALUS: But the law will not allow it, Pompey; nor it shall not be allowed in Vienna. POMPEY: Does your worship mean to geld and splay all the youth of the city? ESCALUS: No, Pompey. POMPEY: Truly sir, in my poor opinion, they will to’t then. (2.1.221–28) As will Pompey, who exits answering Escalus’s threat of a whipping with a saucy couplet – “Whip me? No, no, let carman whip his jade; / The valiant heart’s not whipt out of his trade” (2.1.252–53) – thus aligning himself with the “sanctimonious pirate” (1.2.7) who erased the “thou shalt not steal” (1.2.10) from the Ten Commandments because he would not be commanded from his “function” (1.2.13). The scandal of the hypocritical deputy is obviously a benefit to the Duke, exposing Angelo’s moral exceptionalism as a lie and reframing the Duke’s authority as omniscience with respect to “the nature of our people,” now understood in a rather different sense. But the possibly greater scandal of juridical impotence over which Escalus benignly presides also plays into the Duke’s hands. In the conclusion, Escalus’s competence and probity are exposed as a form of stupidity as he is set up by the Duke to interrogate the “slanderers” Isabella and Marianna and obediently responds, “My lord, we’ll do it throughly” (5.1.258). Thus the Duke’s


final drama also demonstrates that he knows the secrets of his people in a way that Escalus, and the civil law he administers, cannot hope to. The law of nature operating on and through the bodies of his subjects may mock “strict statutes and most biting laws” but it also permits the ruler to recuperate their subjection to this power as his knowledge. In this sense we can see in Measure for Measure the usefulness of the idea of a law of nature to the kind of absolutist politics favored by Shakespeare’s new king and patron. But the play ends not with the Duke’s revelation of his knowledge of his subjects’ secrets but rather in his proposal to Isabella, a gesture that may simply be formal confirmation of his supremacy and her subjection to the nature which she as much as Angelo would deny, but which is much more compellingly read as the revelation that the Duke too is Nature’s subject. While this point may be theologically undeniable, its effect is to shatter the supremacy which the rest of the act has established. Unanswered and uncommented upon within the play, not exactly confirming yet resonating dismayingly with Friar Thomas’s insinuations and Lucio’s slanders regarding the Duke’s sexual activities, the proposal produces radical ambiguity, translating the Duke from the absolutist subject of knowledge to an object of inquiry. But this inquiry cannot be conducted from any of the political positions specified within the play, falling instead to the audience, who, I would suggest, are in rehearsal for the work they will perform later in the century as the polite witnesses to Boyle’s experiments.29 In 1604, however, the law of nature is a politically indigestible concept, modeling a sway beyond that of civil law, but one that cannot be wielded from any representable position.

Notes 1. William Shakespeare, Measure for Measure, 1.2.114–22, ed. J. W. Lever (1966; rpt. London and New York: Routledge 1988). Subsequent references are to this edition. 2. See Stephen Greenblatt, Shakespearean Negotiations (Berkeley, CA: University of California Press, 1988), pp. 129–42; Steven Mullaney, The Place of the Stage (Chicago, IL: University of Chicago Press, 1988), pp. 88–115; Elizabeth Hanson, Discovering the Subject in Renaissance England (Cambridge: Cambridge University Press, 1998), pp. 55–74. 3. Raymond Williams, Keywords (London: Fontana Press, 1976), p. 219. 4. For interpretations of the play in light of legal issues in Shakespeare’s England see Louise Halper, “Measure for Measure, Law, Prerogative, Subversion,” Cardozo Studies in Law and Literature 13 (2001), 221–64; Stephen Cohen, “From Mistress to Master: Political Transition and Formal Conflict in Measure for Measure,” Criticism 41 (1999), 431–64; Deborah Shuger, Political Theologies in Shakespeare’s England (New York: Palgrave Macmillan, 2001), pp. 9–38; Leah S. Marcus,


5.

6.

7. 8.

9.

10. 11.

12. 13. 14. 15. 16. 17. 18. 19. 20.

21.

Puzzling Shakespeare: Local Reading and Its Discontents (Berkeley, CA: University of California Press, 1988), pp. 160–211. Martin Ingram, Church Courts, Sex, and Marriage in England,1570–1640 (Cambridge: Cambridge University Press, 1987), pp. 219–37. See also Marcus, Puzzling Shakespeare, pp. 171–76, and Shuger, Political Theologies, pp. 30–33, for contemporary Puritanical efforts to criminalize sexual misconduct. Isaac Newton, Philosophiae Naturalis Principia Mathematica, Praefatio, Opera Omnia, II, p. ix. Cited in Francis Oakley, “Christian Theology and Newtonian Science,” Church History 30 (1961), 436. Bruno Latour, We Have Never Been Modern, trans. Catherine Porter (Cambridge, MA: Harvard University Press, 1993), pp. 13–48. Lars Engle, “Measure for Measure and Modernity: The Problem of the Skeptic’s Authority,” in Shakespeare and Modernity, ed. Hugh Grady (London and New York: Routledge, 2000), p. 85. Robert Boyle, A Free Inquiry into the Vulgarly Received Notion of Nature, ed. Edward B. Davis and Michael Hunter (Cambridge: Cambridge University Press, 1996), p. 36. Boyle, A Free Inquiry, p. 41. On the Judeo-Christian tradition of the legislating God and its challenge to Greek ideas of immanent laws of nature see Oakley, “Christian Theology.” On the emergence of the term “law” to describe physical regularities in nature see Jane E. Ruby, “The Origins of Scientific ‘Law,’ ” Journal of the History of Ideas 47 (1986), 341–59. Both these essays respond to Edgar Zilsel, “The Genesis of the Concept of Physical Law,” Philosophical Review 51 (1942), 245–79. See also J. E. McGuire, “Boyle’s Conception of Nature,” Journal of the History of Ideas 33 (1972), 523–41; Jon Miller, “Spinoza and the Concept of a Law of Nature,” History of Philosophy Quarterly 20 (2003), 257–76; Friedel Weinert, “Laws of Nature, Laws of Science,” in Laws of Nature: Essays on the Philosophical and Historical Dimensions (Berlin and New York: Walter de Gruyter, 1995), pp. 3–63. Boyle, A Free Inquiry, pp. 13, 40. Boyle, A Free Inquiry, p. 24. William Shakespeare, The Winter’s Tale, 2.2.59–61, ed. J. H. P. Pafford (1963; rpt. London and New York: Routledge, 1991). Boyle, A Free Inquiry, p. 41. William Shakespeare, Cymbeline, 5.4.38, ed. J. M. Nosworthy (1955; rpt. London and New York: Routledge, 1988). Thomas Aquinas, Summa Theologica, II, 1qu. 94, art. 2, cited in Zilsel, “Genesis of the Concept,” 257. Richard Hooker, Of the Laws of Ecclesiastical Polity, ed. Christopher Morris, vol. 1 (London: J. M. Dent and Sons, 1963), pp. 154–55. See Zilsel, “Genesis of the Concept,” for the connection between absolutism and mechanism. On the political significance of Boyle’s experimental practice see Steven Shapin and Simon Schaffer, Leviathan and the Air-Pump (Princeton, NJ: Princeton University Press, 1985), and Latour’s commentary on it in We Have Never Been Modern. On the distinction between the law of nature and natural law see Zilsel, “Genesis of the Concept,” 245–46. The first chapter of John Ponet’s A Short


22. 23. 24. 25. 26. 27. 28.

29.

Treatise of Politike Power (1556), however, clearly demonstrates the conceptual and lexical entanglement of the two concepts in this period. Francis Bacon, “A Confession of Faith,” in Francis Bacon, the Major Works, ed. Brian Vickers (Oxford: Oxford University Press, 1996), p. 108. Letters and Life of Francis Bacon, ed. James Spedding, Robert Leslie Ellis, and Douglas Denon Heath, vol. 10 (London: Longmans, 1857–74, rpt. 1968), p. 91. Spedding, Letters, p. 90. Spedding, Letters, p. 90. Spedding, Letters, p. 90. Spedding, Letters, p. 90. On the role of a Calvinist conception of sinful “nature” in the play see Huston Diehl, “ ‘Infinite Space’: Representation and Reformation in Measure for Measure,” Shakespeare Quarterly 49 (1998), 393–410. For a different account of the connection between Baconian natural philosophy and the audience’s final view of the Duke see Andrew Barnaby and Lisa Schnell, Literate Experience: The Work of Knowing in Seventeenth-Century English Writing (New York: Palgrave Macmillan, 2002), pp. 55–90.

Index Abduction of heiresses, 11–12, 92–94 Absolutism see Monarchy Action, “three branches” of, 14 in Hales v. Petit, 189 in Hamlet, 198 Ad Herennium, 22, 29, 35n.4 Adelman, Janet, 239, 247n.13 Agamben, Giorgio, 243, 248n.21 Alexander, Peter, 162n.1 Alien statute, the, 12, 118 and Shylock, 122–23 Allen, Carlton K., 111, 125n.7 Altman, Joel B., 16n.4, 35n.10, 36n.39, 139n.11, 141n.26 Ambiguity, 5, 263 Anachronism, 7, 128 Anderson, Linda, 57n.60 Andrews, Mark Edwin, 110, 124n.4 Anglin, Jay P., 55n.10 Apthonius of Tyre, 22 Apthonium Progymnasmata, 35n.12 Aquinas, Thomas Summa Theologiae, 89n.9 on the law of nature, 75, 254–55 Archer, John M., 88n.3 Arden, Forest of in As You Like It, 11: see also Locus amoenus; Property, theories of Aristotle, 75, 252 Nicomachean Ethics, 125n.7, 125n.25 Robert Boyle on, 252 on equity, 110–112, 114–115, 118 and the “well made” plot, 145 Assumpsit, 126n.8 see also Law, Common Augustine, St. (of Hippo) Contra Adimantum Manichaei discipulum, 89n.6 on private ownership of property, 75 Austin, J. L., 16n.3

Bacon, Francis A Brief Discourse Touching the Happy Union of the Kingdoms of England and Scotland, 257–58 The Case of the Post-Nati, 234, 246n.5 “A Confession of Faith,” 257 Essays or Counsels, Civill and Morall, 54n.10: “On Deformity,” 52; “On Revenge,” 19n.32, 39 Letters and Life of, 54n.3 Major Works, 256n.22 letter to James VI and I on torture, 39 on exempla, 30, 37n.49 as head of Chancery court, 52 on natural law, 15 personal involvement with torture, 39–43 on “wilde justice,” 19n.32 Baker, Sir John, 17n.14, 37n.49, 65, 70n.9, 71n.14, 126n.27, 141n.18, 164n.32, n.37, 205n.3 Baldwin, T(homas) W(hitfield), 35n.10, 56n.32 Ballads, 9 Barbour, Violet, 140n.16, 141n.32 Barker, Francis, 56n.43 Barnaby, Andrew, 265n.29 Barthes, Roland, 144, 163n.9 Barton, Sir Dunbar Plunket, 5, 125n.10 Bastardy outlawed in 1576, 168 Bate, Jonathan, 55n.17, n.41 Batman, Stephen on deformity, 52 Beattie, J. M., 56n.44 Beaumont, Francis, 27 Berg, James E., 62, 71n.13, 71n.14, 72n.35, 148, 152, 163n.23

266

Index 267 Berger, Harry, Jr., 187n.22, 215, 226n.3, 229n.38, n.40 Bergeron, David, 55n.16 Bernthal, Craig, 16n.5, 17n.14, 72n.35, 148, 152, 163n.18, 163n.23 Bevington, David, 16n.1, 69n.2 Bilello, Thomas C., 12 Birch, Thomas Memoirs of the Reign of Queen Elizabeth, 54n.4 Birks, Peter, 246n.1 “Bishop’s Ban” of 1599, 188n.36 see also Satire Black’s Law Dictionary, 17n.14 Blackstone, Sir William, 95 Commentaries on the Laws of England: A facsimile of the First Edition of 1765–69, 106n.7 Bodin, Jean The Six Bookes of a Commonweale, 240, 247n.20 Body in accession speech of James VI and I, 211: in response to James VI and I by Sir Edward Phelips, 211–12 natural, 239 politic, 6–7, 205n.4, 235, 247n.8, n.14 Boece, Hector, 215–17 Bogdanor, Vernon, 69n.1 Bolgar, R. R., 36n.19 Bolton, W. F., 70n.5 Bonds Shylock’s with Antonio in The Merchant of Venice, 6, 101, 109, 130: as against natural law, 113 Bonham’s Case, 34, 37n.61 “Book of Orders of Assurances,” 134–35 Boose, Lynda, 107n.10, 108n.26 Boris, Edna Zwick, 18n.26 Bowen, Catherine Drinker, 34n.3 Bowers, Fredson Thayer, 56n.39 Boyer, Allen D., 10, 16n.4, 17n.16, 34n.1, 35n.7, 37n.45 Boyle, Robert, 252–58 A Free Inquiry into the Vulgarly Received Notion of Nature, 264n.9

Bracton, Henry, 14–15, 19n.36, 192–93, 199–200, 206n.15, 233–35, 246n.2 De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), 246n.2 Brandeis, Arthur, 164n.34 Braunmuller, A. R., 205n.1 Brief Treatise Discovering in substance the offences, and ungodly practices of the late 14. Traitors condemned on the 26. Of August 1588, A, 46 Brink, Jean R., 229n.43 Broadsides, 9 Brockbank, Philip, 148, 163n.5, n.22, 249n.10 Brooke, Nicholas, 55n.13 Brooks, Peter, 163n.10 Broude, Ronald, 55n.18 Brown, John Russell, 226n.4 Brown, Wendy, 207n.51 Brugis, Thomas, 149 Vade Mecum, or, a Companion for a Chyrugion, 164n.27 Buck, A. R., 11, 17n.5, 89n.10, n.11, n.22, 90n.24 Bullough, Geoffrey, 166n.64 Burgess, Glenn, 125n.15, 226n.6, 231n.82, 234, 246n.6 Burns, J. H., 231n.75 Burt, Richard, 71n.13, 88n.3 Bushnell, Rebecca W., 232n.96 Butler, H. E., 35n.13 Cade, Jack, 11, 72n.35, 73–75, 79, 82–85, 89n.4, 148–52, 163n.23 Cairncross, Andrew S., 162n.6 Calderwood, James, 204, 207n.53 Calendar of Assize Records: Home Circuit Indictments, Elizabeth I and James I, 165n.46 Calendar of State Papers, Domestic, 72n.23 Calendar of the manuscripts of the most honourable, the Marquess of Salisbury preserved at Hatfield House, Herfordshire, 188n.38

268 Index Callaghan, Dympna, 10, 57n.61 Campbell, Lily B., 18n.26, 57n.23 Cantor, Leonard, 90n.28 Caplan, H., 35n.14 Carlyle, A. J., 89n.6 Carroll, James D., 55n.16 Carroll, William C., 229n.37, 230n.46, n.54 Carruthers, Leo M., 164n.34 Cartelli, Thomas, 88n.3 Cary, Sir George, 116 Catholics and charges of cannibalism, 49 considered traitors under Elizabeth I and James IV and I: The Babington Plot, 159; The Gunpowder Plot, 21, 208, 214 and torture, 38 Cave, Terence, 144–48, 163n.10 Cavell, Stanley, 239, 247n.8, n.15 Cecil, Sir Robert (Lord Treasurer) as deformed, 52 Cecil, William (Lord Burghley) and public execution, 46 Cerasano, S. P., 174–75, 186n.6, 187n.24 Chamberlain, Sir John The Letters of, 57n.59 on Francis Bacon’s “Of Deformity,” 53 Chancery Court see Courts Cheney, Patrick, 18n.22 Christianson, Paul, 228n.21 Christie, Agatha, 144, 163n.8 Cicero, 22, 29, 33, 36n.24, 127 De Inventione, 156, 165n.51, n.57: as influence on the work of William Lambarde, 157 De Legibus, 239–40, 247n.16 De Oratore, 37n.59 De re publica, 242, 248n.23 on oratory and the creation of society, 24 Cinthio, Giraldi, 101–104 Hecatommithi, 108n.21 Civil Law see Law, types of Clare, Janet, 72n.35

Clark, Donald Lemen, 35n.12, 70n.7 Clark, Peter, 70n.7 Clark, Stuart, 23n.62, 217 Clarke, Danielle and Elizabeth, 165n.62 Clarkson, Paul S., 3 Clegg, Cyndia Susan, 13 Clergy legal privileges of (“benefit of”), 50, 150: denied in cases of rape, 100 Cockburn, J. S., 164n.37, 165n.46 Coddon, Karin S., 208, 221, 226n.2 Cohen, Stephen A., 110, 114, 118, 124n.5, n.55, 126n.33, 236n.4 Coke, Sir Edward Commentary Upon Littleton, 33, 37n.52, 53 The First Part of the Institutes of the Laws of England, or a Commentary upon Littleton, 57n.64 The Lord Coke His Speech and Charge, with a Discourse of the Abuses and Corruption of Officers, 35n.6 Preface to the Second Part of the Reports, 37n.59 Le Quart Part des Reportes Del Edward Coke, 186n.4, 231n.74 Selected Writings and Speeches of, 37n.59 defense of Edmund Denny against slander, 186n.3 and James IV and I, 220 involvement with torture, 39 paraphrase of Gaunt’s speech from Richard II, 21 on the signs of fraud, 101–102 on slander, 168 Collinson, Patrick, 3, 17n.9 Collusion in Wimbish v. Tailbois, 194–95 Comedy “Christian Terence,” 159 and “generic insurance” in The Merchant of Venice, 136–38, 141n.27 Roman: forensic strategies in, 158 Common Law see Law, types of

Index 269 Commons as class of subject, 13, 74, 85, 87, 143m 147–48, 160–62, 165n.63, 214, 221, 228n.21, n.25, n.26, n.27 see also Property, types of Commons, House of see Parliament Community, 13, 74, 85, 87, 143, 147–48, 160–62, 165n.63, 214, 221, 228n.21, n.25, n.26, n.27 Confession, 40, 225, 249, 257 annual lay, 150–51: and confessions of homicide, 150 Consistory Courts see Courts Constables, 53, 150, 155 Constitution Ancient, 14, 30, 37n.48, 125n.15: Coriolanus on, 237–40; Macbeth on, 208–226 “Modern,” 251 Roman Republic in the Twelve Tables, 237 Stuart, 246n.6 Constitutional Documents of the Reign of James I, 229n.31 Constitutionalism, 7, 11, 241, 246 Conveyance see Property Conveyances, 12, 91–92, 99 as legal documents, 103 Coquillette, Daniel R., 37n.49 Corbin, Peter, 69n.3 Coroners, 4, 149–50, 154–55 and gathering of evidence, 148, 151, 153–54 subordinated to the justice of the peace, 151 Corrigan, Brian Jay, 16n.5 Courts Chancery, 29, 110, 115–16, 125n.15, 126n.27, 132, 141n.19, 212: Francis Bacon as head of, 52; John Selden on, 52; as venue for Fortescue v. Goodwin, 212–13 of common law, 2, 3, 12, 17n.14, 60, 115, 164n.37, 168: at Westminster Hall, 132

consistory, 3, 150, 168 ecclesiastical, 18, 93, 96, 186n.1, n.6: and mediation, 182–84; and prescription of penance, 150, 155, 164n.31; as presiding over sexual indiscretions, 168–72, 183, 251, 264n.5; as presiding over slander in the case of spiritual crime, 168 of equity, 2–3, 12, 115, 118, 125n.26 of King’s Bench: Davies v. Gardiner, 167–68, 180; Palmer v. Thorpe, 168; as presiding over slander cases prerogative, 2, 15, 58, 71n.18, 79, 221, 229n.36, 238–39: Admiralty, 132 Star Chamber, 3: jurisdiction over abduction of heiresses, 93; De Libellis famosis case, 1606, 186n.3; Sir Thomas Egerton’s speech before, 185; trial of William Prynne by, 50–51 Coverture see Property, rights to, of women, 197 Covin, 194–95 see also Collusion Cressy, David, 57n.50 Criminal Law see Law, types of Crown Lands, 62–64, 71n.19, 78, 82, 88, 89n.10 Elizabeth I’s sales of, 64, 71n.19 Cunningham, Karen, 18n.20, 55n.22 Custom, 5, 15, 19n.36, 24, 31, 74–77, 79, 84, 86–87, 134, 206n.15 in Coriolanus, 237, 239–44, 246n.2 James VI and I’s disregard for English legal, 210, 213, 220–21 in Richard II, 58, 60–63, 68–69, 70n.8, 71n.11, n.13 van D’Elden, Karl H., 140n.14 Dacre’s Case, 194 Darwin, Charles, 145 Daston, Lorraine, 127–28, 139n.3

270 Index Davies, Anne see Davies v. Gardiner Davies, John Epigrames, 188n.37 Davies v. Gardiner Sir Edward Coke on, 167–68 and sexual slander against women, 167–170 Davis, Edward B., 264n.9 Davis, Natalie Zemon, 107n.3 De Libellis famosis, 186n.3 De Republica Anglorum, 19n.9, 17n.18, 210n.14 De Termino Michaelis, 206n.23 Debt, 99, 101, 107n.18, 110, 116, 124n.2, 126n.27 deferral of payment of, 12 Defamation See Libel; Slander Defense, 170, 236, 239 of liberty, 220 Defoe, Daniel Essay Upon Projects, 131 “Of Assurances,” 139n.13 “Of Friendly-Societies,” 139n.13 on personal injury insurance, 139n.13 Deformity, 43, 53 Francis Bacon on, 52 Stephen Batman on, 52 and torture, 43, 52 Demesne, Royal see Crown Lands Deposition, 151–52, 251, 261 see also Kingship; Monarchy Derrida, Jacques, 98, 107n.12 Detection, 145, 150, 164n.26 in 2 Henry VI, 143–62 lay participation in, 153 as related to reading, 164n.40 Detective fiction, 144–45, 163n.11 Devereux, Robert (Earl of Essex) leader of Essex’s Rebellion, 185 and satire, 186 and Tyrone’s Rebellion, 185 Devereaux, Simon, 56n.31, 56n.44, n.49 Dewar, Mary, 17n.18, 227n.14 Diehl, Huston, 265n.28

Dillon, Anne, 56n.31 Disafforestation, 11, 81 see also Property, types of Dismemberment, 38, 47, 49 and relics of martyrs, 47 of hands in Titus Andronicus, 46 see also Torture Divine Law see Law, types of Divine Rights of Kings see Kingship; Monarchy Divorce, 100 see also Marriage Documents Relating to the Proceedings Against William Prynne in 1643 and 1637, 56n.46 Dodderidge, Sir John The English Lawyer, 37n.47 Donne, John, 229n.35 Doyle, Sir Arthur Conan, 145 Drakakis, John, 19 Dudley, Robert (Earl of Leicester) and the death of Amy Robsart, 106n.19 Duel in Hamlet, 201 see also Revenge Dyer, Sir James (Chief Justice), 189–98 The Lost Notebooks of Sir James Dyer, 205n.3 see also Hales v. Petit Eccles, Mark, 34n.2 Education, 10, 209, 258 in grammar schools, 22–25 of lawyers, 29–31 and rhetoric, 31–34 Egerton, Sir Thomas (Lord Keeper), speech before the Star Chamber, 185 Elizabeth I, Queen Her Majesties Most Princely Answer . . . On the Last Day of November 1601, 227n.16 Ellesmere, Lord Chancellor, 216, 229n.36 see also Egerton, Sir Thomas

Index 271 Ellis, Robert Leslie, 54, 246n.5, 265n.23 Elopement, 11, 92, 100–101, 103 see also Marriage Elton, W. R., 18n.20 Elyot, Sir Thomas The Book Named the Governor, 29, 36n.26, 37n.44 Enclosure, 62, 68, 71n.13, 73–74, 81, 84, 87, 88n.3 see also Property, types of Engle, Lars, 252, 264n.8 English Coronation Records, 231n.73 Entail, 77 see also Inheritance Entrapment, legal, 146–47 Equity, 2, 3, 6, 12, 109, 115, 124n.2, n.4, n.5, n.6, 125n.7, n.15, n.16, 126n.27, 152, 165n.62, 184, 198, 203–205, 251 Aristotle on, 110–11, 113–15 Christopher St. German on, 2, 111–14, 189–90 Courts of see Courts and forms of action, 125n.26 Jean Gerson on, 112 F. W. Maitland on, 116, 125n.26 Edmund Plowden on, 2, 14, 195, 197–98 in Portia’s “quality of mercy” speech in The Merchant of Venice, 114–15 and revenge, 43 Erasmus, Desiderius, 24, 30–31 On Copia of Words and Ideas (De Copia), 36n.19 on the death of Socrates, 24 Estate, 17n.7, 63, 74, 77, 79–82, 84, 86, 89n.19, 96, 100, 107n.17, 139n.6, 190–92, 213, 252 Evans, G. Blakemore, 88n.1, 107n.15, 124n.1, 206n.35 Evidence, 37n.46, 38, 101, 142n.29, 143, 149, 151–53, 161, 163n.11, 165n.51, 169, 172, 180, 182, 236 Cicero on, 156–57 entechnic or inartificial proofs, 156–57

gathering of: by citizens, 4, 13, 143–66; by coroner, 144–45, 149, 151, 153 instability of, 13, 128 interpretation of, 3 “irrational proofs”: cruentation, 154; proof by oath, 145; trial by battle, 146 William Lambarde on divisions of, 156–57, 165n.52 “last dying words” as, 153 Quintilian on, 157, 165n.53 Evolutionary theory, 145 Examination, 151–52, 154, 156, 180 of suspects, 150: pretrial, 145 Execution, 12, 38, 50, 55n.22, 85, 227n.18, 235 see also Punishment Exempla, 10 and the common law, 30–31 Eyston, Thomas see Eyston v. Studd Eyston v. Studd, 14, 19n.36, 189–205 Fall, The, 11, 75, 85, 88, 89n.10 Feme Sole, 192, 197 see also Property, rights to, of women Ferber, Michael, 193n.1 Ferguson, Margaret W., 16n.5, 89n.10 Field, Nathan The Queen of Corinth, 26 First Part of the Contention, 158, 162n.2, 164n.40 Fisc, 78–79 see also Property, types of Fischlin, Daniel, 228n.21 Fish, Stanley, 2, 16n.2 Fletcher, Anthony, 169, 187n.7 Fletcher, John, 26, 27, 29, 36n.17 The Double Marriage, 26 The Queen of Corinth, 26 Foakes, R. A., 19n.34, 42, 55n.20, 56n.43 Forensic oratory see Oratory, forensic Forensic reasoning see Reasoning, forensic

272 Index Forensics medical, 145, 149, 153 Fortescue v. Goodwin, 212–13 Fortescue, Sir John, 5, 8, 9, 11, 12, 15, 209, 232, 235 Learned Commendation of the Politike Laws of England, 19n.33, 227n.12, 246n.3 Fortier, Mark, 228n.21 Foxe, John, 147 Acts and Monuments (Foxe’s Book of Martyrs), 46, 47 Frank, Lawrence, 163n.11 Fraud, 2, 95, 99, 103–105, 177 centaurs as figures of: in Othello, 104; in Ovid, 104 in conveyance, 11, 17n.8, 91–106: of property, 12; of women, 11, 12 description of, 91 elements of: in Renaissance mercantile law, 134, 141n.23; in modern law, 106n.1 elopement as: in Othello, 92, 96, 100 as performed by Portia in Merchant of Venice, 12, 98, 99, 107n.18, 110, 119, 120 prevention of in insurance policies, 133 signs of: as described by Sir Edward Coke, 102, 103; in Othello, 101 suicide as: in Hales v. Petit, 14, 190, 199; in Othello, 12 Fraunce, Abraham, 32 The Lawiers Logic, exemplifying the praecepts of Logic by the practice of the common Lawe, 37n.56 Fryde, E. B., 70n.6, 71n.12, n.13 Fumerton, Patricia, 72n.35, 230n.58 Gardiner, John, 167–69, 180 see also Davies v. Gardiner Gardiner, S. R., 56n.46 Gardiner, Samuel L., 228n.27 Garner, Bryan A., 17n.14 Garnet, Henry, 38 tortured by Richard Topcliffe, 38 Gascoigne, George, 159

Glasse of Governement, 159, 165n.60 Jocasta, 159 Gaskill, Malcolm, 153–54, 163n.15, 164n. 30, 165n.41 Gentrup, William F., 229n.43 Gerard, John, 38 tortured by Richard Topcliffe, 38 Gerson, Jean, 112, 125n.16 Regulae Morales, 112 on equity, 112 Gest, John Marshall, 35n.6 Gifts, 101, 107n.11 Jacques Derrida on, 98, 107n.12 Claude Levi-Strauss on, 97 Marcel Mauss on, 97 women as, 107n.11 Ginzburg, Carlo, 145, 163n.10 Glenn, John Ronald, 36n.29 Gless, Darryl J., 16n.5 Gohn, Jack Benoit, 65, 71n.18, 72n.25 Goldberg, Jonathan, 207n.50, 226n.3, 230n.63, 247n.9 Goldie, Mark, 231n.75 Goodman, Christopher, 220, 227n.11 How Superior Powers oght to be obeyd of their subjects and Wherein they Lawfully by Gods Worde be disobeyed and resisted, 220, 231n.77 Goodrich, Peter, 204, 207n.54 Gowing, Laura, 168–69, 186n.6, 187n.9 Grady, Hugh, 264n.8 Graves, Michael A. R., 55n.6 Gray, Madeleine, 72n.21 Green, Richard Firth, 164n.39 Greenblatt, Stephen, 57n.63, 88n.3, 141n.27, 148, 163n.22, 263n.2 Greene, Lawrence D., 35n.10 Greene, Thomas, 20 Griffiths, Paul, 56n.31, n.44, 57n.49 Guilpin, Richard Skialetheia or A Shadowe of Truth, 188n.36 Gunpowder Plot, The, 21, 208, 214 see also Catholics; Rebellion Gurr, Andrew, 59, 65, 70n.5, n.26, n.29, 247n.8 Guy, J(ohn) A., 112, 125n.16, 188n.41

Index 273 Gwinn, Matthew, 216 Tres Sibyllae, 217 Hadfield, Andrew, 18n.22 Sir James Dyer and, 189–98 and the “three branches” of action, 14, 189: in Hamlet, 198–205 Hales, Lady Margaret, 190–98 see also Hales v. Petit Hales, Sir James, 190–98 see also Hales v. Petit Hales v. Petit, 189–205 Hall, Edward, 221 Hall’s Chronicles, 231n.78 Hall, Joseph Virgidemiarum, 188n.36 Halley, Janet, 209n.51 Halper, Louise, 236n.4 Hammer, Paul E. J., 54n.4 Hand “amending,” 189–205: Hamlet as, 19n.36, 198–205; Edmund Plowden on, 14, 19n.36; Hanson, Elizabeth, 19n.34, 164n.29, n.38 Harbage, Alfred, 35n.5 Hardships of the English Laws in Relation to Wives, 207n.47 Harington, Sir John, 42 protest against James VI and I’s absolutism through rural retreat, 210, 228n.20 Harmon, A. G., 15n.5 Harriss, G. L., 78, 90n.25 Hasler, P. W., 54n.6 Hatcher, John, 71n.11 Hattaway, Michael, 88n.3 Havard, J. D., 149, 164n.26, n.35 Hawes, Stephen, 25 The Pastime of Pleasure, 36n.27 Hawkes, Terence, 7, 18n.28 Hawkins, Michael, 226n.4 Hawley, William M., 16n.4 Hayward, Sir John, 223 Life and Raigne of King Henrie IIII, 231n.80 Heath, Douglas Denon, 54n.8, 246n.5, 265n.23

Heath, James, 54n.3, n.7 Heiresses, 94–95 Desdemona of Othello as, 96, 100 Portia of The Merchant of Venice as, 96–97 rape of, 95 wardship of, 94–95 see also Property, rights to, of women Helgerson, Richard, 17n.16, 36n.28 Heller-Roazen, Daniel, 248n.21 Helmholz, R. H., 170, 187n.13 Henderson, E. G., 126n.27 Hendricks, Margo, 108n.26 Henry VI, 193 Henry VIII, 231n.73 Herford, Charles Harold, 36n.35 Herman, Peter C., 14 Herrup, Cynthia, 56n.31, 153–54, 164n.30, 165n.42 Hexter, J. H., 68, 72n.36 Heywood, Thomas Apology for Actors, 200 1 Edward IV, 72n.35 Sir Thomas More, 72n.35 Hill, Roger and the John Neil murder case, 155, 165n.46 Hoby, Lady Margaret, 106n.9 Holdsworth, William, 193 A History of English Law, 186n.3, 206n.18 Holinshed, Raphael, 148, 223 Chronicles of England, Ireland, and Scotland, 9, 71n.12, 216–17, 228n.18, 229n.43, 230n.60, 231n.78 Holmes, Sherlock, 145 Homicide, 20, 34n.4 accidental, 192, 199–200 and annual lay confession of, 155 secret, 150, 164n.26, n.35 Homily against Disobedience and Willful Rebellion, An, 220 Honigmann, E. A. J., 141n.26

274 Index Honor, 71n.16, 76, 173 men’s: in Much Ado about Nothing, 167–68, 172–75, 182; chivalric, 173, 184–86; and Claudio, 173–74, 184; and cuckoldry, 172; as non-recoverable property, 163; in Othello, 102–103 and slander: in Much Ado about Nothing, 173, 175, 180–81 women’s: in Much Ado about Nothing, 102–13, 164, 168, 173; and Hero, 170, 173 Hooker, Richard, 255, 257, 260 Of the Laws of Ecclesiastical Polity, 264n.18 Horner, Winifred B., 35n.8, 36n.40 Howard, Jean E., 18n.26, 57n.63, 226n.3, 247n.8 Hoyle, R. W., 70n.6, n.10, 72n.21, 89n.22 Hubbell, H. M., 36n.24, 165n.51 Hume, David, 127–28 Treatise of Human Nature, 127, 139n.2 on probability, 128–29, 138 Hunniset, R. F., 163n.6 Hunt, Maurice, 187n.29 Hunt, Simon, 72n.35, 230n.58 Hunter, Michael, 264n.9 Hutson, Lorna, 13, 37n.46, n.47, 57n.62, 165n.51, n.61, n.62, 205n.4 Iden, Garden of, 11 in 2 Henry VI, 11, 68, 73, 82, 85, 88, 88n.3 see also Property, theories of; Locus amoenus Ingram, Martin, 57n.49, n.53, 168–71, 173, 181, 183, 186n.4, n.6, 187n.10, 264n.5 Inheritance and enfeoffment to use, 63 through entailment, 63: Thomas Starkey on, 76–77, 80, 85, 88. 89n.11 through primogeniture, 69n.1, 77–80: in As You Like It, 81

through reversion, 63: in Richard II, 63 and succession to the throne, 58, 69n.1, 71n.18, 79, 216, 221 and women, 80, 100, 196–97 see also Property, rights to, of women Inns of Court, 9–10, 18n.20, 29, 37n.44 and moot courts, 6, 8 Inquest, 4, 17n.14, 148 coroner’s, 144–45, 147, 149–50, 152, 191 sworn, 151 see also Inquiry Inquiry, 4, 17n.14 murder: in 2 Henry VI, 143 Insurance practices concerning, 139n.6: claims against, 132; premiums for, 132 theories of: Daniel Defoe’s proposals concerning, 131, 139n.13 types of: fire, 131, 140n.14; lex mercatoria, 134–35, 139n.12; life, 131–32, 140n.14; “lost or not lost” policies, 134–36; marine, 12, 13, 127, 129–30, 133–32, 140n.15, 141n.19; personal injury, 131; standard policies, 135, 137, 140n.16, 141n.19; tontine system of, 131, 139n.9 Jackson, Macdonald P., 69n.3 Jacob’s Well: An Englisht Treatise on the Cleansing of Man’s Conscience, 150–51, 164n.34 Jagendorf, Zvim, 247n.8 James VI and I, King accession speech of, 211 letter from Francis Bacon on torture, 39 Political Writings of, 227n.7 The Trew Law of Free Monarchies: or The Reciprock and Mutual Duetie Betwixt a Free King and His naturall Subjects, 227n.7: on absolutism, 208–226; on rebellion, 15, 216,

Index 275 James VI and I, King – continued 220, 222; on tyranny, 222–24, 227n.11, 133–34, 241, 244, 256 James, Heather, 55n.24 Jameson, Fredric, 9, 19n.35 Jardine, Lisa, 107n.17 Jesuits see Society of Jesus Jesus of Nazareth Sermon on the Mount, 44 Johnson, Harold J., 140n.14 Jointure, 31, 193, 196–97 see also Property, rights to, of women Jolowicz, H. F., 247n.11 Jones, Emrys, 146–47, 159, 163n.17, n.66 Jones, W. J., 141n.19 Jonson, Ben, 56n.45 Isle of Dogs, 38 Poetaster, 187n.18 Works, 36n.35 branded as murderer of Gabriel Spencer, 50 on comedy and oratory, 27, 36n.35 interrogated by Richard Topcliffe, 50 on Marlowe’s Tamburlaine, 27 Jordan, Constance, 16n.5, 18n.22, 227n.6 Joseph, Sister Miriam, 15n.4, 36n.41 Jury, 1, 3, 17n.14, 148, 151–53, 56–58, 164n.39, 236 Coroner’s, 149, 154, 162n.6, 190 selection of, 4, 17n.14 sequestering of, 4 Justice and equity, 111–12, 114–15, 118 participatory, 13, 143–62: in 2 Henry VI, 13 and the state, 2, 4, 9–10, 38–54 Justices of the Peace, 148 and binding witnesses to testimony at trial, 151 Roger Hill as president over the John Neil murder case, 165n.46, 154–55 William Lambarde on, 156

and written examination of suspects, 151–52 Justinian Institutes, 233–35, 246n.1 Kahn, Coppélia, 247n.8 Kahn, Paul W., 7, 18n.22 Kahn, Victoria, 37n.46, 205n.4, 248n.21 Kamuf, Peggy, 107n.12 Kaplan, M. Lindsay, 16n.4, 179, 187n.18 Kastan, David Scott, 208, 221, 226n.2, n.4, 230n.53, 231n.84, 232n.87 Katz, Stanley N., 106n.7 Kauffman, Stanley, 99, 108.19 Kavanagh, Thomas M., 139n.3 Keeton, George W., 16n.4, 17n.16, 18n.26, 109, 114, 118, 124n.3, 125n.21, n.23, 126n.33 Keller, Katherine Z., 228 Kendall, Gillian Murray, 16n.4 Kennedy, Joyce D., 139n.13 Kenyon, Timothy, 89n.5 Kepler, J. S., 140n.15, n.16, 141n.23, 142n.30 Kermode, Frank, 54n.1, n.3 Kermode, Jennifer, 186n.6 Kernan, Alvin, 226n.1, 230n.55 Kerridge, Eric, 79n.6 Kerrigan, John, 145, 163n.12, n.13 Kiernan, Michael, 54n.10 King, Donald B., 36n.19 Kingdom, Robert M., 231n.75 Kingship in deposition, 14, 64, 221–24, 231n.80 Divine Right, 7 legitimacy of, 5, 7, 62, 216, 218–19 see also Monarchy Kinney, Arthur F., 227n.11, 228n.21, 229n.43, 230n.60 Kinwelmarsh, Francis Jocasta, 159 Klinck, Dennis R., 67, 70n.5, 72n.30, n.31 Knafla, Louis, 229n.36 Knapp, James A., 229n.43

276 Index Knolles, Richard, 247n.20 Kornstein, Daniel J., 16n.4, 18n.21 Kreuger, Paul, 246n.1 Kyle, Chris R., 10 de LaClos, Pierre Ambroise Francois Choderios Les Liasons Dangereuses, 55n.27, 56n.31, n.44 Lake, Peter, 47, 56n.44 Lambarde, William Archeion, or A Discourse Upon the High Courts of Justice in England, 52 Eirenarcha, or the Office of Justices of the Peace, 156, 165n.52: divisions of evidence, 157; as influenced by Cicero’s De Inventione, 157 Lamont, William M., 57n.52 Langbein, John H., 17n.10, 54n.7, n.12, 149, 151–52, 164n.28, n.36, n.39 Land see Property Language and indeterminacy: in Much Ado about Nothing, 175–76, 178 legal, 5, 20, 70n.6, n.9, 107n.17, 108n.27, 139n.6, 148, 186n.9, 187n.29, 200, 232n.96, 237: in The Merchant of Venice, 20, 99, 107n.18, 117; in Othello, 105, 130; in Richard II, 58–69 and wit, 16n.4: in Much Ado about Nothing, 170, 177, 185 Laslett, Peter, 99, 106n.6 Latin Dictionary, A, 36n.20 Latour, Bruno, 251, 264n.7, n.20 Laud, William (Archbishop of Canterbury), 50–51 Law codes of: Hammurabi, 43; Justinianic, 233–34, 235; Law of Moses, and retributive justice, 44; and retributive justice, 44 and imagination, 6–7, 18n.24, n.27, 19n.30, 191, 200, 234 as text, 7–8, 10, 195, 204

types of: canon, 149–50, 170; and heresy trials, 150; and probability, 149; common, 2, 3, 5, 10–12, 16n.5, 17n.14, 21, 30–33, 37n.56, 58, 60, 68, 76, 88, 93, 105, 109–110, 114–15, 118, 132, 141n.18, 148, 150, 156, 164n.37, 167–68, 193, 197, 204–205, 240, 251; and assumpsit, 126n.28; civil, 4, 7, 235, 246n.4, 251; criminal, 3–4, 12, 39, 49–50, 91, 106n.3, 118, 120, 122–23, 227n.18, 145, 148–49, 151–52, 159, 161, 164n.30, n.37, 227n.18, 243, 260–61; divine, 5, 14, 256; and Renaissance resistance theory, 14; natural: Francis Bacon on, 251–52, 257–59; Richard Hooker on, 255, 257, 260, 264n.18; James VI and I on, 209; and monarchy, 11; and reason, 5; and rebellion, 216, 220, 222; and scientific discourse, 15; political significance of in Measure for Measure, 249–63; political significance of in The Winter’s Tale, 253–56; violated by Coriolanus, 239; positive, 5, 8, 11, 14–15, 212; Roman, 2, 236, 241, 247n.11; on fisc, 78 Lawlessness, 237, 240, 243, 245–46 in times of war, 233–34 Lawyers education of, 10, 20–34 Leff, Michael, 35n.8, 36n.40 Legg, Leopold George Whickham, 231n.73 Leggatt, Alexander, 18n.26 Legh, Gerard Accidens of Armorie, 246n.4 Legitimacy see Kingship; Monarchy Leinwand, Theodore B., 139n.1 Lemon, Rebecca, 14, 16n.5, 208, 226n.2 Levi-Strauss, Claude, 97, 106n.10

Index 277 Lewin, Chris, 140n.14, n.16, 141n.21, n.24, n.25 Lewis, Charleton T., 36n.20 Lewis, C(live) S(taples), 22, 35n.11 Libel, 14, 50, 186, 186n.1 Sir Thomas Egerton on, 185 vs. slander, 167–68 see also Slander Liber Regalis, 220, 231n.73 Liberty, 10, 29, 209, 214, 220 Life and Death of Jack Straw, The, 72n.35, 247n.12 Literalism in law, 2, 20, 109 in Plowden, 195, 197 Lloyd, Janet, 56n.40 Lockwood, Shelley, 17n.17, 227n.12 Locus amoenus as allusion to the Garden of Eden, 73–88 The Forest of Arden in As You Like It as, 11, 82–88 The Garden of Iden in 2 Henry VI as, 73, 82–88 Love described in legal language, 20 Lyndwood, William Constitutions prouincialles and of Otho and Octhobone Translated in to Englyshe, 164n.31 Mack, Peter, 35n.9, 36n.42 Magistrates in Cicero, 239, 242 in English society, 8, 44, 153 in Shakespeare, 3, 251 Mahood, M. M., 139n.5 Maitland, F. W., 116, 125n.26 Major, John M., 37n.44 Malynes, Gerard, 137, 121, 132, 134 Consuetudo, Vel, Lex Mercatoria, or, The Ancient Law-Merchant. Divided into three Parts: According to the Essential Parts of Trafficke (Lex Mercatoria), 139n.12, 140n.14, 141n.17, n.20, n.23 Manderson, Desmond, 18n.20 Manning, John J., 231n.80

Marchant, Ronald, 168, 170, 186n.3, n.5, n.6, 187n.15 Marcus, Leah S., 227n.16, 263n.4, 264n.5 Mares, F. H., 178, 185, 187n.19, n.28, n.35 Marian Bail and Committal Statutes of 1555 and 1556 see Statutes Marienstras, Richard, 56n.40 Marlowe, Christopher, 29, 55, 223 Doctor Faustus, 31, 37n.53 Edward II, 221, 231n.81 The Massacre at Paris, 36n.29 Tamburlaine, 25, 26, 36n29, n.30 Marriage, 3, 15, 20, 26, 42, 77–78, 93, 167–169, 171, 176–78, 180–81, 184, 193 and adultery, 251 and commerce: in The Merchant of Venice, 98, 119; in Othello, 102–103, 105 contracted by elopement, 11: as fraud, 11, 92, 93, 96; in Othello, 92, 96, 100 infidelity in, 101, 177 Marston, John Pygmalion, 188n.36 Martyrdom, 10, 47 and relics, 47: of Edmund Campion, 47; of William Hart, 47 Massinger, Philip The Queen of Corinth, 26 Matthew, St. Sermon on the Mount, 44, 55 Maus, Katharine Eisaman, 56n.29, 57n.63 Mauss, Marcel, 97, 107n.12, n.13, n.18 Mayer, Thomas, 89n.11 McClure, N. E., 57n.59 McGuire, J. E., 264n.11 McLeod, Grant, 246n.1 Mears, Valerie, 188n.41, n.42 Mediation see Courts, ecclesiastical Menander, 158 Meron, Theodor, 18n.22 Messiac, Régis, 163n.11

278 Index Middleton, Thomas Microsynicon, 188n.36 Miller, Jon, 264n.11 Miller, Peter, 107n.13 Miller, Richard, 163n.9 Mirrors kings as, 217 Misogyny in Hamlet, 204 in Renaissance law, 203–204 Molloy, Charles De Jure Maritimo et Navali: or, a Treatise of Affaires Maritime, And of Commerce, 141n.23 Monarchy Abdication: in Richard II, 65, 66 Absolute, 14: James VI and I on, 209, 215, 217, 219, 230n.52; Macbeth as critique of, 209, 218–19, 224; Sir John Harington’s reaction to, 210 deposition, 14, 64, 221–24, 231n.80 inheritance of, 78–79 Mixed, 209, 211 and Parliament, 5, 6, 208–14, 217, 221: Sir Edward Phelips on, 211 see also Kingship Montgomery, Robert L., Jr., 72n.32 Montgomery, William, 162n.2 Montrose, Louis, 80, 90n.28 Moot courts at Inns of Court, 6, 8, 9 More, Sir Thomas, 147 Utopia, 89n.11 treason trial of, 227n.18 Mornay, Philippe du Plessis Defense of Liberty Against Tyrants, 220 Morris, Christopher, 264n.18 Moss, Ann, 36n.19 Motive, 1, 156 as described by William Lambarde, 156 Mueller, Janel, 227n.16 Muir, Kenneth, 247n.20 Mulcaster, Robert, 19n.33, 246n.3 Mullaney, Steven, 230n.57, n.63, 263n.2

Munday, Anthony, 55n.16, 228n.22 Fidele and Fortunio, 41 Pageants and Entertainments of, 55n.16 as torturer, 48 Munden, R. C., 228n.21 Murder, 4, 8, 50, 96, 149 in Hamlet, 14 in 2 Henry VI, 13, 143–48, 152, 156 Ben Jonson convicted of in Macbeth in The Merchant of Venice, 109, 118 of John Neil, 154–55 in Othello, 12, 102–04 in Richard II, 59, 62 in Titus Andronicus, 47–48 Murphy, James J., 36n.26, 37n.45 Myrsiades, Kostas and Linda, 70n.5 Nadeau, Ray, 35n.12, 36n.39 Nashe, Thomas Isle of Dogs, 38 interrogated by Richard Topcliffe, 38–39 Nature, 7, 32, 49, 52, 75–76, 127, 131, 132 in As You Like It, 86 Francis Bacon on, 15, 52 as different from intellectual beings, 258: in the work of Thomas Aquinas, 75; in the work of Robert Boyle, 252–58 in Measure for Measure: as associated with sex, 15 Natural Law see Law, types of Neale, J. E., 227n.15 Neck verse, 50 Neil, John murder of, 154–55 Newman, Karen, 107n.18, 108n.28 Newton, Isaac, 251–52 Philosophiae Naturalis Principia Mathematica, 264n.6 Nicholas, B., 247n.11 Nichols, John, 227n.17, 230n.49, n.50, n.61 Nicolson, Adam, 227n.17

Index 279 Norbrook, David, 208, 215, 226n.2, n.4, 229n.41, 230n.65, 213n.83, 232n.87 North, Thomas, 247n.12 Norton, Thomas Gorbuduc, 41, 55n.14: as source for Titus Andronicus, 55n.16 as torturer, 41, 48 Nosworthy, J. M., 264n.16 Notestein, Wallace, 228n.26, n.27 Novak, Maximillian, 139n.13 Novel of detection, 144–46, 149, 163n.11 realist, 144–45 Noy, William death from laughter at torture of William Prynne, 51 O’Connor, Marion F., 226n.3, 247n.8 Oakley, Francis, 234, 264n.6, n.11 Oesterreich, Peter L., 35n.10 Ong, Walter, 27, 36n.38 Oratory, 1, 27 forensic, 13, 85, 144, 148, 156–57, 161: Warwick’s “bleeding heifer” speech in 2 Henry VI as based on, 157 and foundations of society as described by Cicero, 24, 33 see also Rhetoric Orgel, Stephen, 203, 207n.50 Ormrod, W. M., 71n.17 Ostwald, Martin, 125n.7 Ovid Heroides: Dido to Aeneas; as model for Queen Margaret’s speech in 2 Henry VI, 160 Metamorphoses, 42, 55n.25, 104 Oxford Dictionary of National Biography, 54n.5, 164n.27 Oxfords Triumph In the Royall Entertainment of his moste Excellent Majestie, 230n.51 Pacino, Al, 99 Pafford, J. H. P., 264n.14 Palmer v. Thorpe, 168

Paré, Ambroise Rapports et du moyen d’embaumer les corps morts, 149: as influence on the work of Thomas Brugis, 149 Parity as aim of revenge, 43 Parker, Patricia, 108n.26 Parker, Stephen, 108n.21 Parkin-Speer, Diane, 37n.43 Parliament, 32, 34, 63, 93, 132, 140n.16, 198, 221, 224 Commons, House of, 25, 51, 54n.6, 211–14, 218: “Form of Apology and Satisfaction” to James VI and I, 213; Journals of, 212 and Elizabeth I, 64, 210 and James VI and I, 6, 209–14, 217, 230n.52, n.54 as portrayed in 2 Henry VI, 147 Sir Thomas Smith on, 5–6, 210 and sovereignty, 5–6, 11, 14, 64, 208, 210–14 Parmiter, Geoffrey, 205n.4, n.10, 206n.45 Participatory Justice see Justice Pathology, Forensic see Forensics Patterson, Annabel, 71n.12, 148, 163n.33, 166n.67, 228n.18 Paul, St. Romans, 52, 57n.58 Paul, Henry N., 230n.50, n.54 Pearlman, E., 163n.19 Peck, Linda Levy, 228n.21 Peele, George The Battle of Alcazar, 45 Titus Andronicus, 38, 48, 50 Peet, Donald, 36n.30 Petit, Cyriack see Hales v. Petit Petition of Right against Impositions, 208 Phelips, Sir Edward response to accession speech of James VI and I, 211–12 Phillips, Augustine, 20 Phillips, Owen Hood, 6, 16n.5, 18n.19, n.25, 124n.2, 125n.21

280 Index Plautus, 158 Plett, Heinrich F., 36n.40 Plowden, Edmund Commentaries ou reportes, 2, 9, 106n.8, 189, 190, 200, 205n.4–n.6, n.8, n.9, n.11, 206n.12, n.22, n.27–n.34, n.36, 207n.46, n.53 and the “amending hand,” 14, 190, 206n.45 as Catholic, 194 on equity, 14, 190, 195, 198 figure of a nut, 197–98, 205 see also Equity Plucknett, T. F. T., 125n.10, 151 Plutarch, 27, 30 Lives of Noble Grecians and Romanes: “The Life of Caius Martius Coriolanus,” 237, 247n.12 Pocock, J. G. A., 37n.48, 226n.6 Pollini, Girolamo Historia Ecclesiastica della Rivoluzion d’Inghilterra, 54n.1 Pollock, Sir Frederick, 6 Ponet, John, 227n.11 A Short Treatise of Politike Power, 264n.21 Porter, Catherine, 264n.7 Positive Law see Law, types of Posner, Richard, 116, 118–19, 126n.27, n.32, n.34, n.35 Prest, Wilfrid, 37n.44 Primogeniture see Inheritance Privy Council, 132, 140n.16 James VI and I’s, 34n.3 Queen’s: and torture, 39 Probability Antonio’s relationship to in The Merchant of Venice, 12, 127, 129–30, 136, 138, 139n.6 and forensic reasoning, 145, 148, 153, 157, 161 David Hume on, 127–28 and marine insurance, 131–35 and Othello, 131–32, 136, 138 and risk, 129–30, 138

Procedure, Legal, 123, 160, 200, 238–39 as arbitrary in 2 Henry VI, 146, 152 binding of witnesses to give testimony at trial, 4–5 examination of suspects: in Much Ado about Nothing, 13, 184–85 gathering of evidence, 153–55, 180: warrants, 155 Progresses, Processions, and Magnificent Festivities of King James the First, The, 227n.17, 228n.19, n.20, 230n.49, n.50, n.61 Proof see Evidence Property conveyance of, 90n.27: fraud in, 17n.8, 91–94, 101; in The Merchant of Venice, 12, 97–99; in Othello, 11–12, 95–96, 100–03; of women, 11, 12, 91–92, 105, 106n.8 Garden of Iden as in 2 Henry VI, 11, 82–83, 85 honor as, 103 and kingship, 59, 63, 69 land, 3, 10–11, 58–69, 73–88 ownership of: by copyhold, 60–63, 68, 70n.8, 71n.14, 81; by lease, 59–64, 70n.9, 71n.11 rights to, 3, 77: of commoners, 64, 74, 79, 88; and coverture, 190–94, 197, 202; as “dead in law,” 175–76, 191–92, 195; and elopement, 11, 92, 96; as femes sole, 192, 197; in the Forest of Arden in As You Like It, 11, 79, 86; of women, 92; in Hamlet, 202, 204; and inheritance, 11, 58, 63, 77, 81, 86–87; and jointure, 31, 193, 196–97; and seduction, 92 seizure or seisin of, 65–66: for suicide, 204; for treason, 60 Shakespeare dispute concerning, 20 tenure in capite, 17n.7 theories of, 68, 72n.33, n.35, 75–77, 82–85, 89n.11: as consequence of the Fall of Adam and Eve, 11,

Index 281 Property – continued 75, 89n.10; in 2 Henry VI, 11, 77–78; private ownership, 75, 85 types of: commons, 74, 84; disafforestation of, 11, 84; enclosure of, 73, 74, 81, 84, 87; fee simple, 17n.7, 82–84; fisc, 78–79; real, 3, 67–68, 72n.36, 90n.27 waste of: in Richard II, 67–69, 72n.31 Prosecution of crime, 17n.10 necessity of cause, 147 as public, 227n.18 for slander, 174 of William Prynne, 51 of trespass, 11 Prynne, William, 50–51 Canterburies Doome, 51 Histrio-Mastix, 50 A New Discovery of the Prelates Tyranny in their Late Prosecutions of Mr. William Prynne, 51 The Sword of Christian Magistracy, 51 Pulton, Ferdinando A kalendar, or table, comprehending the effect of all the statutes that haue beene made and put in print, beginning with Magna Charta, enacted anno 9. H.3. and proceeding one by one, vntill the end of the session of Parliament holden Anno 3. R.Iacobi, 16n.4 De pace Regis et regni, 144 Punishment fines, 60–62, 70n.7, 71n.12, 251 imprisonment, 161, 237 public: execution, 47, 54, 56n.31, 245; hanging, 38; penance, 150, 155, 164n.31, 170, 181, 184; whipping, 50, 54, 262 see also Torture Puritans, 29 torture of, 50 Puttenham, George, 23–24, 32 Arte of English Poesie, 35n.16, 36n.25, 37n.55

Questier, Michael, 47, 56n.31, n.37, n.44 Quiney, Richard, 20 Quintilian, 29, 33 Institutio Oratoria, 35n.13, 37n.59, 165n.53, n.55, 165n.56 on evidence, 157 on impersonation, 22 Race and biracial offspring: in Othello, 92; in Titus Andronicus, 101 and Irishmen, 105 in Othello, 105, 108n.28 Rackham, H., 37n.59 Rackin, Phyllis, 18n.26 Ramée, Pierre de la (Petrus Ramus), 36n.29, n.38 Rape, 23, 26, 40, 43, 55n.22, n.24, n.25, 150 of heiresses, 95–96 Rastell, John Les Termes de la Ley, 17n.7 Reason and natural law, 5 natural v. artificial, 10, 32 Reasoning, 30, 138, 141n.29, 157 forensic, 144, 146, 148, 149, 153, 154, 162n.4, 163n.11, 165n.59, 200: strategies in Roman comedy, 158–59 Rebellion, 15, 68 Cade Rebellion of 1450, 148, 152 in Coriolanus, 235 Essex’s rebellion of 1601, 20, 185–86 Gunpowder Plot, 21, 208, 214 in 2 Henry VI, 72n.35, 73–74, 82, 85, 88 James IV and I on, 216, 222 of the Northern Earls, 49 Peasant’s Revolt of 1381, 148 against tyrants, 15, 78–79, 220 Tyrone’s Rebellion, 185 see also Tyranny Redmond, James, 55n.24 Reese, M. M., 18n.26

282

Index

Reports see Plowden, Edmund Republicanism, 15, 235–39, 242–46 Revenge, 8, 120 Francis Bacon on: as “wilde justice,” 10, 39–40, 43 and cannibalism, 49 comedy of: Much Ado about Nothing as, 53 courts as a forum for, 45, 123–24 and duels, 49, 53 and laughter, 45–46 and overkill, 40, 43 and Portia’s motive in The Merchant of Venice, 12, 120 and Shylock in The Merchant of Venice, 121–23 and torture, 45 tragedy of: Titus Andronicus as, 39–40; as symbolic compensation for jurisprudence, 205 Revolt see Rebellion Rhetoric, 1, 3, 21, 32 and debate, 23 and education, 21–24, 29–30 epideictic: by Sir Alexander Iden in 2 Henry VI, 82–83, 85, 88n.2 figures of, 10, 24–25, 28–29, 56n.38 forensic: see Oratory and impersonation, 22 and inventio, 10 Shakespeare’s skepticism concerning, 34 and virtue, 33 Richard II Edward Hall on, 221 Risk see Probability Riss, Arthur, 239, 243, 247n.8, n.14, 248n.27 Rix, H. David, 36n.19 Robsart, Amy, 106n.9 mysterious death of, 149 Roman law see Law, types of Rose, Mark, 55n.22, 56n.38 Rose, Mary Beth, 227n.16

Ross, Charles, 11, 17n.8, 107n.16, 108n.20, n.23, n.24 Rowley, Samuel, 69n.3 Royer, Katherine, 56n.31 Ruby, Jane E., 264n.11 Rueger, Z., 125n.16 Rymer, Thomas Short View of Tragedy, A, 130–31, 136, 139n.7, n.8, n.10 Sacks, David Harris, 37n.47 Sackton, Alexander H., 36n.35, n.36, n.37 Sackville, Thomas Gorbuduc, 55n.14 Sale, Carolyn, 14 Salisbury, Marquess of Calendar of the manuscripts of the most honourable, the Marquess of Salisbury preserved at Hatfield House, Herfordshire, 188n.38 Salmon, J. H. M., 231n.75 Salzman, L. F., 34n.3 Sanctuary, Privilege of, 150–51, 155 abolishment of, 164n.33 Satire, 53 and Robert Devereux, 185–86, 188n.36 Saunders, Ann, 140n.14 Saunders, Claire, 162n.2, 163n.16 Scafuro, Adele, 158, 165n.59 Schaffer, Simon, 264n.20 Schiffhorst, Gerald J., 228n.21 Schlatter, Richard, 75, 89n.8 Schmidt, Alexander, 72n.32 Schmitt, Carl, 241–43, 248n.21 Schnell, Lisa, 265n.29 Schoeck, Richard, 35n.8, 37n.45 Schwab, George, 248n.21 Schwarz, Marc L., 35n.7 Science, 145 and natural law, 15, 252 Scot, Reginald Discoverie of Witchcraft, 48–49 Scotland, 9 foundational myth of monarchy, 215–16: in Macbeth, 216–217, 223

Index 283 Scotland – continued tradition of rebellion against tyranny, 221–22 Scott, William O., 10, 11, 72n.23, n.33, n.34, n.35 Scott, William R., 139n.9 Sedge, Douglas, 69n.3 Seidel, Michael, 139n.13 Seisin see Property Seizure see Property Selden, John, 221 on Chancery, 52 Select Cases of Defamation to 1600, 187n.13, n.14 Seneca the Elder Controversiae, 23 Sententiae, 24 Shakespeare, William All’s Well That Ends Well, 95, 208 As You Like It, 11, 73, 77, 79, 83, 85, 87–88 The Comedy of Errors, 95 Coriolanus, 235–46 Cymbeline, 254 Hamlet, 189–205 Henry IV, 7 1 Henry VI, 217 2 Henry VI, 1, 11, 13, 68, 73–88, 143–62 Julius Caesar, 27 King Lear, 29, 68, 94, 208, 250 Love’s Labor’s Lost, 95 Macbeth, 14, 208–26 Measure for Measure, 1, 15, 20, 95, 208, 249–63 The Merchant of Venice, 1, 11–12, 20, 92, 97–124 The Merry Wives of Windsor, 108n.24 A Midsummer Night’s Dream, 95 Much Ado about Nothing, 13, 53, 95, 167–86 Othello, 11, 12, 28, 92, 96–97, 100–108, 131, 136, 138 Richard II, 10, 20, 58–69, 221 Richard III, 28–29 Romeo and Juliet, 44, 95, 96, 247n.10, 251, 260

The Taming of the Shrew, 97, 181 The Tempest, 130, 136 Titus Andronicus, 10, 38–54 Troilus and Cressida, 208 Twelfth Night, 95, 108n.32, 136 Two Gentlemen of Verona, 94 The Winter’s Tale, 136, 253 Shapin, Steven, 264n.20 Shapiro, Barbara, 37n.46, 165n.51 Sharpe, J. A., 56n.31, n.44 Sharpe, Kevin, 90n.25, 226n.2, 228n.21 Shell, Marc, 127, 129, 139n.6 Shelley’s Case, 30 Sheppard, Steven, 37n.59 Short, Charles, 36n.20 Shuger, Debora, 217, 230n.58, n.59, 263n.2, 264n.5 Sibbet, Trevor, 140n.14, n.16 Sidney, Lady Mary (Countess of Pembroke) “Dialogue Between Two Shepherds in Praise of Astraea,” 55n.19 Sidney, Sir Philip, 24, 54 Defence of Poesie, 200 Siemon, James R., 64, 71n.13, n.16, 72n.24 Simpson, A. B. W., 17n.6, 65, 70n.9, 72n.27, 115, 126n.28, n.29 Simpson, Evelyn, 36n.35 Simpson, Percy, 36n.35 Sinfield, Alan, 208, 226n.2, n.4 Singh, Jyotsna, 97–98, 107n.11, n.14 Slade’s Case, 30, 37n.47 Slander, 9, 13–14, 16n.5, 85, 168n.1, 186n.6, 187n.18, n.29, 262–63 Coke’s defense of Edmund Denny, 186n.1 and imagination, 172, 174–75 De Libellis famosis, 1606, 186n.3 and marriage prospects: in Davies v. Gardiner, 167–69 in Much Ado about Nothing, 167–86 remedies for: public penance, 170, 181 requiring malicious intent, 170 requiring utterance before “persons whose good opinion was worth having,” 170 see also Libel

284 Index Sloane, Thomas O., 35n.10 Smith, Alan G. R., 228n.21 Smith, Irwin, 34n.3 Smith, Logan Pearsall, 229n.35 Smith, Molly, 55n.22 Smith, Sir Thomas The Commonwealth of England and the manner of government thereof (De Republica Anglorum), 4–5, 17n.12, n.13, n.14, n.15, 210, 227n.14 on Parliament, 5–6, 14 Society of Jesus torture of members under Elizabeth I, 38 Sokol, B. J. and Mary E., 16n.5, 19n.31, 63, 70n.6, n.9, 106n.5, n.9, 107n.17, 108n.27, 124n.2, n.6, 125n.24, 126n.27 Sommerville, Johann P., 227n.6, n.7, 228n.21, n.22 Sophocles Oedipus Rex: as an “analytic” plot, 145 Sorge, Thomas, 247n.8 Southwell, Robert torture by Richard Topcliffe, 38 Sovereignty as beyond the law, 66, 208, 243 as dependent on arms and law, 233–46 and theology, 251 see also Kingship; Monarchy; Parliament Spanish Armada, 46, 49 Speculum Sacerdotale, 164n.31 Spedding, James, 54n.8, 246n.5, 265n.23, n.24, n.25, n.26, n.27 Spelman, Sir John Reports of Sir John Spelman, 164n.32, n.33 Spencer, Gabriel, 50 Spenser, Edmund, 25, 33 Faerie Queene, 187n.18 Spinosa, Charles, 121, 124n.2, 126n.27, n.36 Spinrad, Phoebe S., 178, n87n.26 Squibb, G. D., 246n.4 Star Chamber see Courts Starkey, Thomas

Dialogue between Pole and Lupset, 75–80, 83, 85, 88, 89n.11–n.18, n.20–n.21, 90n.23 Statutes 13 Eliz.c.5, 91, 92 27 Eliz.c.4, 91, 92 7 Henry VI, 194 11 Henry VII c.20, 194, 196–97 1 Henry VIII c.7, 164n.35 Marian Bail and Committal Statutes of 1555 and 1556, 154 outlawing of bastardy in 1576, 168 4, 5 Phil. & M.c.8, 92, 94, 96, 100, 105, 106, 108 6 Rich.2.c.6, 92, 94, 100, 106 Statutes of the Realm, 206n.26 Steane, J. B., 36n.29, 231n.81 Stein, Peter, 247n.11 Stewart, William Buik of the Cronicis of Scotland, 230n.46 St. German, Christopher, 5 Dialogues in English between a Doctor of Divinity and a Student in the Lawes of England, 2, 111, 125n.10-n.18 on equity, 2, 111–14, 118 Stimpson, Catherine R., 55n.22 Strier, Richard, 18n.25 Studd, Richard see Eyston v. Studd Styles, Philip, 34n.3 Succession see Inheritance Suicide in Hamlet: of Ophelia, 14 in Othello, 12 seizure of land for: except in cases of madness, 204 see also Hales v. Petit Sullivan, Garret A., Jr., 18n.22 Sumptuary laws and Jack Cade, 74 Suzuki, Mihoko, 108n.22 T. E. The Lawe’s Resolutions of Womens Rights: or, the Lawes Provision for

Index 285 T. E. – continued Women, 190, 194, 202, 206n.25, 207n. 48, n.49 Tailbois, William see Wimbish v. Tailbois Tanner, J. R., 229n.31–n.33, n.36 “Tavern cases,” 9 Taxes in Richard II, 64 in Thomas of Woodstock, 59 Taylor, J. E., 108n.21 Tedeschi, John and Anne, 163n.10 Tenure see Property Terence Phormia, 158–59 Thatcher, David, 163n.16, 165n.54 Thatcher, Oliver J., 247n.16 Thomas, Ronald R., 163n.11 Thomas of Woodstock, 59, 69n.3 Thompson, E. P., 71n.14 Thompson, I. A. A., 70n.7 Thorne, Samuel E., 19n.36, 31, 37n.52, 206n.15, 246n.2 “Three branches of action” see Hales v. Petit Thynne, Francis The Historie of Scotland, 215, 229n.43 Tierney, Brian, 234, 247n.6 Tillyard, E. M. W., 18n.26, 148 Topcliffe, Richard as torturer of Catholics under Elizabeth I, 38–40, 44–45, 48, 50 Torture, 9, 54n.3, 150, 164n.29 Francis Bacon on, 39 in controversia, 23, 23, 26 as exercised by Duke Humphrey in 2 Henry VI, 147–48 and martyrdom, 10, 40 as prealable in capital cases, 38 as revenge, 38–54 methods of: branding, 50–51; dismemberment, 38, 47, 49; ear-cropping, 51; nose-slitting, 57n.49 Tragedy 2 Henry VI as “commonwealth” tragedy, 146 of revenge: see Revenge, tragedy of

Traitors see Treason Treason, 8, 220 and Catholics, 38: The Babington Plot, 159; The Gunpowder Plot, 21, 208, 214 in Coriolanus, 246n.4 execution for: William Laud, 51; Sir Thomas More, 227n.18 in 2 Henry VI in Richard II, 63, 71n.18 seizure of land for, 60 see also Rebellion; Tyranny Trenerry, C. F., 140n.15 Trial by battle: in Hamlet, 203; in 2 Henry VI, 146 Tricomi, Albert, 56n.38 Trousdale, Marion, 16n.4 A true and faithful relation of that Horrible Murder committed on the body of Mr. JOHN NEIL, Late Stationer and Merchant of Glasgow in Scotland, 165n.46, n.47, n.48 Tully see Cicero Turner, J. C., 55n.16 Twyne’s Case, 99, 101 Tyranny in Coriolanus, 214–44 James VI and I on, 14, 222, 227n.11 in the Justinianic Code, 233–34 in Macbeth, 14–15, 223–34 in Marlowe’s Edward II, 221 and rebellion: Christopher Goodman on, 220, 227n.11; Edward Hall on, 221; Philippe du Plessis Mornay on, 220; Francis Thynne on, 215–16, 229n.43 see also Rebellion Umfraville v. Lonstede, 12, 116–17 Urkowitz, Stephen, 162n.1 Usher, Roland G., 37n.58 Usury, 110 and insurance, 138 Vengeance see Revenge

286 Index Vickers, Brian, 33, 35n.10, n.15, 36n.26, n.27, n.41, 37n.60, 55n.28, 265n.22 Vinogradoff, P., 125n.16 Waith, Eugene, 26, 37n.17, n.18, 36n.33, n.34 Walker, Alice, 35n.16 Walker, Garthine, 186n.6 War civil, 159, 224 and the law of honor, 18n.22 suspension of law during, 15, 233–46 Ward, Ian, 18n.24 Ward, Jenny, 164n.27 Wardship and heiresses, 94–95 and property, 63 Warrant obtained by friends of John Neil, 155 Warren, Clyde T., 3 Warren, Roger, 162n.1, 163n.21, 165n.63 Waste see Property Watkin, Thomas Glyn, 34n.4 Weatherly, Edward H., 164n.31 Weber, Samuel, 248n.21, n.22 Webster, Daniel Duchess of Malfi, The, 45 Weinert, Friedel, 264n.11 Weisberg, Richard, 6 Wells, Robin Headlam, 18n.26 Welsh, Alexander, 163n.11, n.14 Wentworth, Peter and House of Commons, 29 West, William The First Part of Symbolaeography, Which May be Termed the Art, or description, of Instruments and Precedents, 140n.14 White, Edward J., 5 White, James Boyd, 6 White, R. S., 89n.9, 124n.6 “Wilde Justice” see Revenge Willbern, David, 55n.22, n.24 Willcock, Gladys Doidge, 35n.16 Williams, Raymond, 250, 263n.3

Wilson, Luke, 12–13, 16n.5, 140n.13, 141n.28, 199–200, 205n.2, n.7, 206n. 38–42, n.44, 207n.46, n.55 Wilson, Richard, 54n.3, 55n.15, 56n.35, n.36, 88n.3, 89n.4, 184, 163n22, 164n.24 Wilson, Thomas The Art of Rhetoric, 30 The Rule off Reason, 16n.4, 30, 31, 37n.51, n.54 Wimbish, Elizabeth see Wimbish v. Tailbois Wimbish v. Tailbois, 14, 189–90, 194–97 Witnesses, 13, 135, 152, 156–57, 164n.39, 261 bound to give evidence, 5, 151 and error, 4 Wolffe, B. P., 71n.19, n.20 Women, 10, 23, 26, 35n.10, 153, 216–18 as property, 92–106 and right to property, 189–206 and slander, 169–86: defense against, 169; vulnerability in, 170, 175–76 see also Property, rights to, of women Wood, Ellen Meiksins, 70n.8, 71n.13, 89n.3 Wood, Neal, 81, 89n.3, 89n.11, 90n.24, n.30 Woodbine, George, 19n.36, 206n.15, 246n.2 Woodbridge, Linda, 140n.13 Wright, Nancy E., 11, 16n.5, 89n.10 Wrightson, Keith, 77, 89n.19 Wynne-Davies, Marion, 186n.6, 187n.2 Yachnin, Paul, 18n.20 Yates, Julian, 206n.37 Year Books, 30 Yonge, C. D., 257n.16, 248n.23 Zagorin, Perez, 72n.36 Zilsel, Edgar, 254, 264n.11, n.17, n.19, n.21 Zimansky, Curt A., 139n.7 Ziolkowski, Theodore, 57n.54, n.55, 112, 125n.19 Zwicker, Steven N., 226n.2

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