Majeske - The Extremity of Claudio's Prosecution and Barnardine's Pardon InShakespeare's Measure For Measure

Cardozo School of Law
Equity's Absence: The Extremity of Claudio's Prosecution and Barnardine's Pardon in Shakespeare's Measure for Measure Author(s): Andrew Majeske Source: Law and Literature, Vol. 21, No. 2 (Summer 2009), pp. 169-184 Published by: University of California Press on behalf of the Cardozo School of Law Stable URL: http://www.jstor.org/stable/10.1525/lal.2009.21.2.169 . Accessed: 08/04/2013 18:09
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Equitys Absence: The Extremity of Claudios Prosecution and Barnardines Pardon in Shakespeares Measure for Measure
Andrew Majeske
Abstract. A wide range of critics have read Measure for Measure as though the legal concept of equity played a critical role in the drama. This essay argues that equity, at least as that concept is understood by such critics, is absent from the play for an important reason: Duke Vincentios overarching objective is to reestablish the rule of law in Viennain effect to refound the state. Such an objective, if political philosophers are to be believed, requires extreme, even shocking measures, if it is to be quickly and effectively accomplished. In Measure for Measure, Duke Vincentio accomplishes his refounding first by Angelos harsh enforcement of the law, especially his prosecution of Claudio, and then later by his several pardons (which are rooted in mercy rather than equity), particularly his inexplicable pardon of the unrepentant murderer Barnardine. Keywords: Shakespeare, equity, theatre and law, Vincentio, Vienna
A wide range of critics have read Measure for Measure as though the legal concept of equity played a critical role in the drama. I will argue that equity, at least as that concept is understood by such critics, is absent from the play for an important reason: Duke Vincentios overarching objective is to reestablish the rule of law in Viennain effect to refound the state. Such an objective, if political philosophers are to be believed, requires extreme, even shocking measures, if it is to be quickly and effectively accomplished. In Measure for Measure, Duke Vincentio accomplishes his refounding first by Angelos harsh
Law & Literature, Vol. 21, Issue 2, pp. 184. issn 1535-685x, electronic issn 1541-2601. 2009 by The Cardozo School of Law of Yeshiva University. All rights reserved. Please direct all requests for permission to photocopy or reproduce article content through the University of California Presss Rights and Permissions website, at http://www.ucpressjournals.com/reprintinfo.asp. DOI: 10.1525 /lal.2009.21.2.169
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enforcement of the law, especially his prosecution of Claudio, and then later by his several pardons, particularly his inexplicable pardon of the unrepentant murderer Barnardine. It is useful to map the key features of Measure for Measure before addressing the critics who have read equity into the play: Vincentio, the Duke of Vienna, its ruler, announces he will leave Vienna indefinitely on a secret mission. While absent, he assigns Lord Angelo, a man of stricture and firm abstinence, to rule in his stead (1.3.12). The Dukes objective in appointing Angelo is to reestablish the rule of law in Vienna, which the Duke has permitted to deteriorate, particularly with respect to sexual matters.1 Essentially, the Duke is refounding the state of Vienna utilizing Angelos harsh proxy rule as part of the means to his end. The Duke remains in Vienna disguised as a friar, and in this guise he learns of Angelos prosecution of the nobleman Claudio for having sex before marriage with his fiance, Juliet. Angelo strictly applies a long unused law, sentencing Claudio to death, in spite of Claudios excuse that he and Juliet had sex pursuant to a widely practiced custom that tacitly permitted a couple to engage in premarital sex after they had plighted their troth.2 Isabella, Claudios sister, delays taking her vows as a nun in order, at Claudios request, to plead for a pardon from Lord Angelo. Angelo, succumbing both to his attraction to Isabella (especially her icy virtue) and to the corrupting influence of his absolute power, eventually suggests to Isabella that if she agrees to have sex with him, he will pardon Claudio. Isabella, whose rigid morality initially causes her vehemently to reject Angelos proposition, is later convinced by the Duke in his friars disguise to accept it, but secretly to substitute in her place at the assignation Angelos jilted former fiance, Mariana. The Dukes plan works to the extent that Angelo consummates his relationship with Mariana in a pitch-black room, thinking she is Isabella. But Angelo, fearing reprisals from Claudio, reneges on his agreement to pardon Claudio, and instead secretly orders his immediate execution. The Duke saves Claudio, arranging for the severed head of another prisoner, who had died of natural causes, to be disguised as Claudios and sent to Angelo. Upon reassuming power Duke Vincentio asks to hear anyone who has a complaint against the way Angelo has ruled. By an ingenious device, the Duke has Isabella and Mariana accuse Angelo, which results in the exposition of Angelos misdeeds. The play ends with a host of marriages and pardons: The Duke compels Angelo, whom he later pardons, to marry the willing Mariana; Claudio is pardoned and will complete his marriage to Juliet; a minor character, Lucio, who has
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slandered Duke Vincentio (or possibly just spoken the unflattering truth about him), must marry a prostitute he has impregnated, though his other punishments are pardoned; and finally, the Duke, after granting Isabellas request of a pardon for herself, will marry her (although Isabella never explicitly agrees to the marriage). Standing apart from these marriage/pardon pairs is the striking, almost inexplicable pardon of the unrepentant murderer Barnardine, whose head the Duke originally planned to substitute for Claudios.3 Given these facts, the temptation to read the legal concept of equity into Measure for Measure is compelling. More than two millennia ago Aristotle identified the fundamental problem with laws, a problem succinctly captured by the description of laws in the play as strict and biting (1.3.20), rigor[ous] (1.4.71), the peoples terror (2.1.4), severe (2.2.58), and all binding (2.4.101). According to Aristotle, the problem with laws is that they necessarily are designed to be general in naturethey must apply to a series of individual cases; single laws cannot be promulgated for each case. Consequently, Aristotle explains, there is always a gap between a law and the specific cases to which it is applied.4 In many cases, therefore, the application of a law to a specific case will produce a kind of injusticethe punishment will not fit the crime, given all the facts and circumstances of the case. The situation in Measure for Measure at first glance seems to be designed specifically to address this very issue. Claudios betrothal to Juliet makes their premarital sex excusable according to well-established custom, rather than deserving of capital punishment. In such cases, according to Aristotle, equity (epieikeia) should be drawn upon in effect to overrule the law in questionto ignore the strict letter of the lawin order to achieve an appropriate, proportional result.5 It is no wonder, then, that a long line of critics have worked so hard to read equity into Measure for Measure.6 The play presents an example more striking than Aristotles of the injustice of strictly applying the letter of a law to a specific case in which the punishment dictated by the law is clearly excessive, both unwarranted and inappropriate.7 Emblematic of many of these critics is David Bevington, who highlighted what he considered to be the role of equity in Measure for Measure in the introductory essay to his popular Bantam edition of the play.8 Bevington asserts that:
[t]he plays title, Measure for Measure, introduces a paradox of human justice which this problem play cannot wholly resolve. How is fallible man to judge the sins of his fellow mortals and still obey Christs injunction of the Sermon
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on the Mount, Judge not that ye be not judged? Three positions emerge from the debate: absolute justice at one extreme, mercy at the other, and equity as a middle ground. ... Escaluss compassionate and pragmatic approach to law illustrates equity, or the flexible application of the law to particular cases.
Bevingtons desire to locate a reasonable and orderly way to interpret the play by reading equity into it, as a mean between extremes, proves forced and is in immediate and open conflict with the action of the play. Bevington associates Duke Vincentio with the rigorous enforcement of law in the play, when clearly Angelo is the one responsible for thisDuke Vincentio solicited Angelo as proxy ruler precisely because he anticipated Angelo would act this way. Bevington identifies Isabella with mercy, whereas the play clearly lodges the merciful element in the person of Duke Vincentio, whose many pardons will be discussed below.9 Isabella may seek mercy for others, but she is in no position to render any herself. Finally, Bevington characterizes Escalus as representing equity, which he has identified as the mean between what he characterizes as the extremes of law and mercy. But Duke Vincentio intentionally passed over Escalus as proxy ruler in favor of Angelo, even though Duke Vincentio says to Escalus at the outset of the play:
. . . The nature of your people Our citys institutions, and the terms For common justice, youre as pregnant in As art and practice hath enriched any That we remember. (1.1.913)
While Bevington correctly recognizes that in a reasonable and orderly political situation, equity is needed to operate as a middle ground between the extremes of strict law and free mercy, he fails to appreciate that Duke Vincentio, by purposefully passing over Escalus in favor of the untested and severe Angelo, effectively eliminates the possibility of a reasonable and orderly political solutionhe is intentionally creating an extreme situation in Vienna. The question that this essay seeks to answer is what Duke Vincentio intends by purposefully creating such an extreme situation. This question will necessarily involve addressing what if any role equity plays in Measure for Measure, which in turn will require addressing the role of the pardons issued by Duke Vincentio towards the end of the play.
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The sort of equity described by the critics who wish to interpret the play in light of its presence is, according to Aristotle, quite subtle and limited in scope.10 Such equity intervenes only in individual cases where the facts and circumstances make apparent that the consequences dictated by the law are disproportionate to the offense committed. The objective of the person dispensing equity is to preserve the authority of the lawto create the appearance that the law is capable of producing just results in individual cases.11 This in turn helps to preserve and enhance the rule of law. The person dispensing equity, consequently, must be subtle in its application. Attention cannot be called to the fact that the letter of the law is being subverted. In Measure for Measure, the first clue that equity is irrelevant is that Claudios case does not present a situation in which the rule of law needs to be preserved by subtly adjusting its outcome. Rather, his case is one in which the clearly unfair letter of the law is being strictly enforced in order to reestablish the rule of law, perhaps the singular situation in which a law openly producing an unfair outcome can produce a distinctly positive result. Consequently, the sort of equity interpreted into the play by critics seems quite misplaced. That the rule of law has already disintegrated in Vienna is evident in the Dukes description to Friar Thomas:
We have strict statutes and most biting laws, The needful bits and curbs to headstrong weeds, Which for this fourteen years we have let slip . . . ... [Now] our decrees, Dead to infliction, to themselves are dead, And liberty plucks justice by the nose . . . (1.3.20, 2830)
Machiavelli perhaps best illustrated the need for severeeven tyrannousenforcement of the laws when trying to restore the rule of law, or to be more precise, when refounding a regime. As Harry Jaffa has observed, Duke Vincentios plan of placing Angelo temporarily in charge of Vienna in order to restore the rule of law recalls irresistibly the Remirro de Orco episode from the seventh chapter of Machiavellis The Prince. There Machiavelli describes the story of Cesare Borgia, a ruler who sought to restore order to the province of Romagna, which was in a state of political unrest:
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And because this point is deserving of notice of being imitated by others, I do not want to leave it out. Once [Cesare Borgia, called Duke Valentino by the people,] had taken over Romagna, he found it had been commanded by impotent lords, who had been readier to despoil their subjects than correct them, and had given their subjects matter for disunion, not for union. Since that province was quite full of robberies, quarrels, and every other kind of insolence, he judged it was necessary to give it good government, if he wanted to reduce it to peace and obedience to a kingly arm. So he put there Messer Remirro de Orco, a cruel and ready man, to whom he gave the fullest power. In a short time Remirro reduced it to peace and unity, with the very greatest reputation for himself. Then [Cesare Borgia] judged that such excessive authority was not necessary, because he feared that it might become hateful; and he set up a civil court in the middle of the province, with a most excellent president, where each city had its advocate. And because he knew that past rigors had generated some hatred for Remirro, to purge the spirits of that people and to gain them entirely to himself, he wished to show that if any cruelty had been committed, this had not come from him but from the harsh nature of the minister. And having seized the opportunity, he [had him killed and] placed one morning in the piazza at Cesena in two pieces, with a piece of wood and a bloody knife beside him. The ferocity of this spectacle left the people at once satisfied and stupefied.12
Jaffa believes that the resemblance of the plan or plot outlined by Machiavelli to that outlined by Duke Vincentio to Friar Thomas in the third scene of the play cannot be coincidental.13 Whether or not the similarities are intentional, they are definitely present. In the Remirro de Orco episode, it is evident that the reintroduction of civil authority and the rule of law is not a simple task. It involves a period of harsh rule to reacquaint the people to the yoke of law. Because the people are bound to resent this severity, the ruler is well advised to delegate the job of reestablishing the rule of law to someone else. In Measure for Measure the Duke makes this very point in his discussion with Friar Thomas:
Friar Thomas: It rested in your grace To unloose this tied-up justice when you pleased, And in you more dreadful would have seemed Than in Lord Angelo. Duke: I do fear, too dreadful. Sith twas my fault to give the people scope,
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Twould be my tyranny to strike and gall them For what I bid them do; for we bid this be done When evil deeds have their permissive pass And not the punishment. Therefore, indeed, my father, I have on Angelo imposed the office, Who may in th ambush of my name strike home, And yet my nature never in the fight To do in slander. (1.3.3247)
Just as Cesare Borgia distinguished himself from Remirro de Orcos harsh rule, in that case by shocking the populace with the astonishing way in which he had Remirro executed, so Duke Vincentio will need to distinguish himself in some striking way from Angelos harsh rule. But his way of distinguishing himself will likely need to be of a different sort since Angelos harshness is not arbitrary or widespread like Remirros.14 Rather, Angelo has acted with surgical precision.15 He selected for exemplary prosecution an upper-class person, one who had only technically violated a law that not only was long unenforced, but which had effectively been overruled by generally accepted custom. Angelo broadly publicizes this prosecution by parading Claudio through the streets of Vienna for all classes of people to see and contemplate. The majority of the population, those less noble and wealthy than Claudio, will realize that if a privileged person like Claudio is being harshly prosecuted for such an excusable offense, they themselves are likely in even graver danger should they violate any law. The message to the noble and wealthy is that their misconduct will not be overlooked. By prudently utilizing a single exemplary prosecution, Angelo accomplishes quickly and with relatively little effort what he could not otherwise have accomplished with a host of less selective prosecutions. The second phase of refoundings in cases like Remirros Romagna and Angelos Vienna, once the harsh reestablishment of the rule of law has been accomplished, involves the original rulers retaking control. In doing so, they must distance themselves from the actions of proxy rulers, and they must establish what to all appearances is a less tyrannical style of ruling. Cesare Borgias retaking control by brutally killing Remirro de Orco and publicly displaying his body distances Borgia from Remirros tyrannous rule; more importantly, according to Machiavelli, it is an act that both satisfies and astonishes the people.16 Borgia, unlike Remirro, renders harsh justice that is not
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based solely on fear. Going forward the people of Romagna will certainly fear the laws, but due to the satisfaction of seeing Remirro punished, they will also respect them. It remains to locate in Measure for Measure an action that is comparable in magnitude to Remirro de Orcos executionone that will both satisfy and astonish the peopleand thereby accomplish the second phase of the refounding sought by Duke Vincentio. The execution of Angelo will not suffice. Angelo does not need to be killed like Remirro, at least not for the sake of distancing Duke Vincentio from Angelos tyrannous rule; the public revelation of Angelos misdeeds will more than sufficiently accomplish this. Instead Duke Vincentio accomplishes the effect of shocking and astonishing his people by the way he commences his less-tyrannical style of ruling.17 Duke Vincentios shocking behavior involves his mercy; in political terms his mercy translates into his issuance of pardonsvirtually all of the Dukes prominent actions after he reassumes control involve the granting of pardons. While at first glance it might be surprising to some that the granting of a pardon could achieve a comparable effect to the execution of Remirro, the remarkable power that pardons possess is well understood by theorists. As Jacques Derrida observes, pardon comes as a shock, an ultimately unaccountable disruption.18 No reason accounting could ever fully anticipate or explain how or when [to grant a pardon] . . . as such, the pardon is mad . . .19 David Lindley, relying on Foucault, suggests that the rendering of mercy in the form of pardons by Duke Vincentio is only a different mode of securing the same end as executionit generate[s] in the spectators . . . the [power of the state over the] body of the convicted criminal.20 Publicly pardoning a convicted criminal, it seems, could in theory be every bit as potent a display of the states power over its subjectsevery bit as shockingas the actual execution of a criminal would be. Now let us examine the four main pardons granted by the Duke at the end of Measure for Measure to see if any rise to the level of magnitude of Remirros execution. Two clearly fall short in this respect. Lucio, a clownish character, is pardoned for his offense of slandering the Dukes reputation, though in exchange he is required to marry the prostitute he is reputed to have made pregnant. This outcome, while satisfying, fails to astonish. Claudio also is pardoned, though here also the Duke takes care to make sure he in fact will marry Juliet, whom he has impregnated. While the revelation that Claudio is
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alive is certainly both satisfying and astonishing, once this revelation is made his pardon is more expected than surprising. Angelos pardon presents a somewhat more difficult case. His pardon is surprising; it is not, however, entirely unwarranted in light of all the circumstances. While it temporarily appears that Claudio has been executed and Isabella has been violated as Angelo intended, Claudio of course proves to be alive and Isabella remains a virgin. As the Duke notes, before Claudio is shown to be alive, Angelos execution would merely constitute what he deserves, measure for measure, for what he did to Claudio (5.1.46568). After it is revealed that Claudio is still alive, and Isabella still a virgin, Angelos pardon, while mildly surprising, certainly fails to astonish. Only the fourth and final pardon, Barnardines, remains.21 Not only does his pardon prove to be astonishing considering he is an unrepentant murderer, so does his very presence in the play. Barnardines role in the play has intrigued and perplexed critics.22 While Harold Bloom celebrates Barnardine as the particularly comic genius of this authentically outrageous play, and the imaginative center (and greatest glory) of Measure for Measure, David Lindley points out that his presence is superfluous.23 Ragozines death, and his closer resemblance to Claudio, make Barnardine irrelevant to the plot, at least superficially. Yet the presence of such a noteworthy character is difficult simply to discount; his inclusion in the play seems to be by designnone of the known sources of the play have a Barnardine-like character.24 I contend that Barnardines presence in the play can be accounted for by the shocking effect of his pardon on the people of Vienna. In a stable regime where the rule of law is firmly entrenched, the pardoning of Barnardine would be inconceivable. Barnardine is a confessed murderer, one who is both unreformed and unrepentant (4.2.140151). According to the Provost, the person who has been in charge of Barnardine during his captivity, and the one in the best position to comment on his character, Barnardine is not to be pitied, even if he were the Provosts brother (4.2.6162). Logically, one would expect that in order to restore the rule of law in Vienna, the Duke should have Barnardine executedwhich was in fact his initial impulse. Barnardines crime and his unrepentant attitude appear to demand his executionparticularly in a play entitled Measure for Measure. But in a situation such as we are presented with in Vienna, in which the Duke needs to reassume control and distance himself from Angelo in order to complete Viennas refounding and cement the reestablishment of the rule
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of law, the Dukes seemingly irrational pardon of Barnardine makes perfect sense. The Dukes apparently inexplicable act of mercy in Barnardines case precisely balances and counteracts Angelos confoundingly strict application of the law in Claudios case. The pardon produces a necessary shock, a seemingly unaccountable disruption, one that [undoes] the past and compels the people to forget and forgive not only Angelos severity and misdeeds, but also the Dukes laxity in enforcing the laws that caused Viennas problems in the first place.25 As W. H. Auden has noted, the Dukes pardon of Barnardine, like all pardons, must ultimately be governed by prudent calculation.26 Prudent calculation dictates the production of shock in those who are not privy to the reason for the pardonin this case, everyone except for Duke Vincentio. Though different in manner, Barnardines pardon is similar in magnitude to Cesare Borgias execution of Remirro de Orco in its effect on the people. The pardon is a breathtaking public display of the Dukes power over his subjects on a scale designed to surpass their comprehension. The emphasis on equity insisted on by many critics acts to conceal the significance of the extreme actions Duke Vincentio takes to restore Vienna to the rule of lawhis appointment of Angelo to begin with, and his pardon of Barnardine. But the inclination of these critics to read equity into the play, besides generously reflecting upon their humane instincts, is not entirely inappropriate, if we view equity from a broader perspective than they intended. Aristotle, in his Ethics, deals with equity in Book V, the book devoted to justice, and the culminating book devoted to the practical virtues.27 The application of equity in Book V is reserved to the epieikesa mysterious group of people, identified as the wise (or literally, the equitable), who in addition to having control over the extralegal discretionary power of equity, are revealed in Aristotles Politics to be the group best entitled to rule.28 In Chapter 11 of Book 6 of his Ethics, the first book devoted to the higher, or intellectual virtues, Aristotle associates the sort of forgiveness we identify with pardon as being integral to a more expansive notion of equity. The same persons who are entitled to dispense the equity described in Book V (the sort of equity critics attempt to read into Measure for Measure), the epieikes or equitable, are also the group with the faculties to be entrusted to dispense the sort of forgiveness we associate with pardon.29 In closing I would like to place Measure for Measure in the context of some events roughly contemporary with its composition. I need to do so carefully, however, to avoid the trap into which critics desiring to read
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equity into the play have fallen. Their error was to assume that Measure for Measures preoccupation with the nature of justice must relate to the battle between the English common law courts and the prerogative courts, particularly Chancery, with its so-called equity jurisdiction.30 I would like to narrowly suggest that there is some merit in the observations of critics who have argued that the play could be viewed as a vehicle to instruct [the newly crowned King James] in rulership, as one of the many Renaissance texts containing advice for rulers, texts that are successors to what had been called in medieval times speculum principum, or mirror for princes.31 In particular, the play has been read in part as obliquely commenting upon events occurring early in Jamess reign, including the trial, partial pardon (actually a suspended sentence), and imprisonment of Sir Walter Raleigh. These events occurred in November and December 1603,32 just one year before the first known production of Measure for Measure at the palace in Whitehall in December 1604. It is intriguing to consider, though impossible to determine, whether the play might be suggesting that James should pardon Raleigh just as the Duke pardons Barnardine.33
1. We have strict statues and most biting laws, The needful bits and curbs to headstrong weeds, Which for this fourteen years we have let slip, Even like an oergrown lion in a cave, That goes out not to prey. Now, as fond fathers, Having bound up the threatning twigs of birch, only to Stick it in their childrens sight For terror, not to use; in time the rod Becomes more mocked than feared; so our decrees, Dead to infliction, to themselves are dead, And liberty plucks justice by the nose; The baby beats the nurse, and quite athwart Goes all decorum. (1.3.1921) 2. . . . upon a true contract I got possession of Juliettas bed. You know the lady, she is fast my wife, Save that we do the denunciation lack Of outward order. This we came not to, Only for propogation of a dower Remaining in the coffer of her friends, From whom we thought it meet to hide our love Til time had made them for us. (1.2.14856)
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3. I have drawn freely from Joel Levins excellent summary of Measure for Measure (Joel Levin, The Measure of Law and Equity: Tolerance in Shakespeares Vienna, in Law and Literature Perspectives, ed. Bruce Rockwood (New York: Peter Lang, 1996), 19495). Whether Isabellas silence presumes her consent to the Dukes offer to marry her is unclear. Certainly an element of compulsion is present in the fact that the request comes from the ruler. Added compulsion comes from the Dukes manipulation of the circumstances: his offer of marriage comes immediately upon the heels of his revelation that Claudio is still alive, at a point when Isabella is in a fraught emotional state. 4. Aristotle Rhetoric 1373ab; Ethics 5.10. 5. Aristotles Rhetoric contains Aristotles sole example of a law applied to a situation that requires correction by equity. [I]f a man has no more than a finger-ring on his hand when he lifts it to strike or actually strikes another man, he is guilty of a criminal act according to the written words of the law; but he is innocent really, and it is equity that declares him to be so (1373ab). The translation from the Greek is my own. The law in question apparently prohibits striking another with a metal object. 6. Walter Pater refers to the half humorous equity which informs the whole composition. Appreciations: With an Essay on Style (London: Macmillan, 1924), 177. Gervinus, the German critic, and F. S. Boas read equity into the play several years before Pater. Ernest Schanzer, The Problem Plays of Shakespeare (London: Routledge, 1963), 118. John Dickinson, in 1962, again attempted to reduce the plays problematic elements by interpreting Measure for Measure as though equity were present: It seems to me, however, that insufficient attention has been paid to the role of another virtue in the playrelated at once to absolute justice and Christian mercy, though occupying a point intermediary between themthe virtue of equity. [Dickinsons thesis is] to illustrate the theory and practice of equity in Shakespeares England, and to show that in Measure for Measure Shakespeare has changed crude materials concerning equity found in his source into an integral part of his play. (287). John W. Dickinson, Renaissance Equity and Measure for Measure, 13 Shakespeare Quarterly 28797 (1962). Dickinsons reference to Shakespeares source material, the play Promos and Cassandra, is in my view noteworthy in that equity is prominently mentioned twice in that work, but not even once in Measure for Measure. Frank Kermode goes so far as to describe Measure for Measure as containing a high debate on justice and equity (Shakespeare, Spenser, Donne (London: Routledge, 1971)). W. Nicholas Knight also identifies equity as integral to the play in Equity in Shakespeare and His Contemporaries, 56 Iowa State Journal of Research 6777 (1981) and Equity and Mercy in English Law and Drama (14051641), 6 Comparative Drama 5167 (1972). More recent critics reading equity into Measure for Measure include Stacy Magedanz, Public Justice and Private Mercy in Measure for Measure, 44 Studies in English Literature 31732 (2004); Deborah Shugar, Political Theologies in Shakespeares England (London: Palgrave, 2001); and Levin, supra note 3. 7. Many critics who have not chosen to read equity into the play have commented on its extreme nature. In the early nineteenth century Coleridge observed that the play for him was the most painful say rather, the only painfulpart of [Shakespeares] genuine works. Its comic and tragic parts, Coleridge pointed out, were respectively disgusting and horrible. Samuel Taylor Coleridge, Lectures and Notes on Shakespeare, ed. T. Ashe (Bohns Standard Library, 1902), 299. Richard Paul Wheeler, Critical Essays on Shakespeares Measure for Measure (London: Twayne, 1999), 1. Even earlier Charlotte Lennox wrote that Shakespeare, in his chosen plot, made wrong choice of his Subject, but was resolved to torture it into a Comedy, as made clear by the low Contrivance, absurd Intrigue, and improbable Incidents [] he was obliged to introduce [] in order to bring about three or four weddings, instead of one good Beheading, which was the consequence naturally to be expected. Id. At the
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end of the nineteenth century F. S. Boas first labeled Measure for Measure a problem play. George L. Geckle, Measure for Measure: The Critical Edition (London: Athlone Press, 2001), 10. E. M. W. Tillyard found this term unsatisfactory, but could only wish [he] knew a better. E. M. W. Tillyard, The Problem Plays of Shakespeare (Toronto: University of Toronto Press, 1949), 1. E. K. Chambers, also avoiding the problem play nomenclature, found the limits of comedy . . . sorely strained. Geckle, supra, at 265. L. C. Knights noted in 1942 that the play was the one of Shakespeares that has caused most readers the greatest strain and mental discomfiture. Wheeler, supra, at 5. Much more recently, Harold Bloom could describe the play in terms of its high rancidity. Harold Bloom, Shakespeare: The Invention of the Human (New York: Riverhead Books, 1998), 358. 8. David M. Bevington, ed., introduction to William Shakespeares Measure for Measure (New York: Bantam Books, 1988). The introduction is unpaginated. 9. It is worth mentioning again that the term equity does not appear in the play. On the other hand, the play contains far more references to pardon (twenty-eight occurrences) than any other Shakespearean play. 10. For a more complete description of Aristotles remarkably subtle and complex treatment of equity, see Andrew J. Majeske, Equity in English Renaissance Literature: Thomas More and Edmund Spenser (New York: Routledge, 2006), 3962. 11. Consider in this regard Roscoe Pounds critique of the view that the application of law [involves] nothing but a mechanical fitting of the case with the strait jacket of rule or remedy; Pound argues that the inevitable adjustments and extending and limitations, which an attempt to administer justice in this way must involve, are covered up by a fiction of interpretation in order to maintain the general security. An Introduction to the Philosophy of Law (New Haven: Yale University Press, 1954), 49. 12. Nicolo Machiavelli, The Prince, ed. & trans. Harvey C. Mansfield (Chicago: University of Chicago Press, 1985), 2930. 13. Harry V. Jaffa, Chastity as a Political Principal: Measure for Measure, in Shakespeare as a Political Thinker, ed. John Alvis & Thomas G. West (Durham: Carolina Academic Press, 1981), 189. 14. I disagree with Jaffas emphasis that the enforcement of laws by one seeking to refound a regime must be both unpredictable and arbitrary. Id. at 20102. This first falling of the blow of justice will appear to be, and indeed will be, arbitrary. It will be arbitrary, because there is no reason why that first blow should fall on one rather than another, of those many that have committed this offense. Id. Angelos actions appear extremely premeditated and not in the least arbitrary. Perhaps Jaffa meant that the general populace must be fooled into believing that the prosecution(s) are unpredictable and arbitrary. I notice that Jaffa interprets Machiavelli as distinguishing himself from Plato on this point. In his Laws, Platos Athenian Stranger asserts that in refounding situations the greatest offenders should be prosecuted with exact justice and retribution (735 de). That is, the prosecutions should be entirely predictable, and not at all arbitrary. I should note that I do agree generally with the notion that there is something questionable, and even arbitrary, in most if not all foundings and refoundings of regimes. It should be noted that both Machiavelli and Plato seem to agree that constitutional government is possible but only after an unconstitutional beginning. Harvey Mansfield Jr., introduction to Machiavelli, supra note 12, at xx. Certainly we should be suspicious of any claim of novelty by Machiavelli on this point. In the Laws, Platos Athenian Stranger unequivocally describes the harshness of the best sort of refoundings: There are many sorts of [refoundings], some gentler some harsher. If the same man were a tyrant as well as a lawgiver, he could employ the purges that are harsh and best; if a lawgiver who lacks tyranny is setting up a new regime with laws, he should be glad if he can purify using even the gentlest of purges. (735de).
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Duke Vincentio certainly seems to be acutely aware of the need for an unconstitutional new beginning. 15. Angelos actions appear to be in perfect accord with Machiavellis teaching in The Prince: . . . it is impossible for the new prince to escape a name for cruelty, [yet the] prince . . . should not care about the infamy of cruelty, because with very few examples he will be more merciful than those who for the sake of too much mercy allow the disorders to continue . . . for these customarily harm a whole community, but the execution that comes from that prince harms one particular person. (Machiavelli, supra note 12, at 66.) 16. Consider the use by the U.S. military of the terminology shock and awe in the initial bombardment of the second Iraq war. 17. A milder ruling style seems more appropriate to Duke Vincentios character, seeing as how he got into trouble in the first place. 18. Nassar Hussein & Austin Sarat, eds. Forgiveness, Mercy, and Clemency (Stanford: Stanford University Press, 2007), 5. 19. Id. at 4. 20. David Lindley, The Stubbornness of Barnardine: Justice and Mercy in Measure for Measure. 7 Shakespeare Yearbook 333, 34041 (1996). 21. Barnardine has been held in prison on the charge of murder for nine years by the time Claudio is sentenced to die. He has been held so long because irrefutable proof that he committed the crime did not materialize until shortly before the action of the play. He is unreformed and unrepentant; he spends most of his time in a drunken stupor or asleep. Now that his guilt is beyond dispute, he would quickly be executed in the normal course of events. When the Duke, in his friars disguise, is working to save Claudios life, he at first proposes that the Provost proceed immediately with Barnardines execution so that his severed head can be delivered to Angelo disguised as Claudios. Barnardine, however, is drunk and not willing to be confessed. The Duke and Provost avoid the difficult decision of whether to execute him anyway by the timely natural death of Ragozine, another prisoner, one who resembles Claudio more than Barnardine. 22. One way critics attempt to explain his presence in the play is in terms of showing the limits of Duke Vincentios power. Lindley, supra note 20, at 333. Or, as J. W. Lever suggests along the same lines, Barnardines existence on the stage was surely that he might assert a major truth, that no mans life was so worthless as to be sacrificed to anothers convenience. Introduction to Measure for Measure, Arden edition, ed. J. W. Lever (London: Methuen, 1965), xc. 23. Harold Bloom, Shakespeare: The Invention of the Human (New York: Riverhead Books, 1998); Lindley, supra note 20, at 333. 24. Lindley, supra note 20, at 333. 25. Hussein & Sarat, supra note 18, at 5, 11. Of course, as is repeatedly hinted at in the play, Duke Vincentios own misconduct may have been the key reason that he failed to enforce the laws. 26. Id. at 2. 27. Ethics, at 5.10. 28. Majeske, supra note 10, at 3962. 29. In a democratic society such as we have in the United States, we are temperamentally disinclined to entrust anyone with the discretionary power associated with the sort of equity critics attempt to read into Measure for Measure. See generally Pound, supra note 11, at ix, ch. 3. I would like to observe here that while the forgiveness associated with pardon appears to be tangentially related to the more traditional kind of equity, at least in Aristotles writings, there is a critical difference that should be highlighted. Pardon does not possess the subtlety associated with equity. As Roscoe Pound noticed, the discretionary power associated with equity must be carefully applied to preserve the general security, that is, to maintain the rule of law. The laws themselves must appear to be authoritative for the rule of law to be
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maintained. A pardon, however, has no such subtlety. The pardon is very public and necessitated by a clear failure of the laws to produce an appropriate result. 30. For details regarding this conflict, see generally Majeske, supra note 10, ch. 1. 31. Barbara Mowat, Historical Background in Measure for Measure, New Folger Shakespeare Library edition, ed. Barbara A. Mowat & Paul Werstine (New York: WSP, 1997), 225. 32. Raleighs imprisonment continued, with one interlude, until 1618 when the original death sentence was carried out. Like many in London, Shakespeare was probably entranced by the trial. Reports that filtered through London from those who stood in the minstrels gallery at the trial must have related the heated exchanges between Raleigh and Sir Edward Coke, then the attorney general. Coke insisted that Raleigh could be convicted on evidence obtained from a single witness rather than from two witnesses as Raleigh asserted. While Coke may have been technically correct on this point, he later acknowledged that two conflicting laws were in effect at the time. Later, in his Institutes of the Laws of England, Coke indicated that the law requiring two witnesses was still in force. John Hostettler, Sir Edward Coke: A Force for Freedom (Chichester, U.K.: Barry Rose Law Publishers, 1997), 41. This much is clear: the rule allowing conviction by a single witness had not always been the casetwo witnesses were required in Edward VIs reign. Coke also insisted on the strict position that no overt act was necessary to convict someone of treason; it was sufficient if the accused compass[ed] or imagin[ed] the kings death. Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston: Little Brown and Co., 1956), 201. The overt act requirement, however, was interpreted more or less strictly from time to time. Id. Finally, Coke refused to allow Raleigh to examine his accuser Lord Cobham in person, even though Cobham was being held in the same building in which the trial was taking place, and in spite of the fact that the letters written by Cobham implicating Raleigh were not produced in court. Again, Coke was within his rights in a technical legal sense according to the procedural rules of the time. Raleigh complained that Coke s positions were a strict and rigorous interpretation of the law. Now the King of England at his coronation swears to observe the equity and not the rigour of the law. And if ever we had a just and good King, it is his Majesty; and such doth he wish his ministers and judges to be. Though, therefore, by the rigour and severity of the law, this may be sufficient evidence, without producing the witness, yet your Lordships, as Ministers of the King, are bound to administer law in equity. Id. at 205. Sir John Popham, the Chief Justice of Kings Bench, and one of the specially appointed judges for the trial, responded carefully: Equity must proceed from the King. You can only have justice from us. Id. Popham opined that under the common law justice is equivalent to the strict application of laws (statutes are just one form of laws) without any allowance for whether the circumstances of the case make such application unreasonable or unfair. Moreover, Popham asserts that equity falls solely within the Kings prerogative power of pardon. Pophams statements about equity do seem to be in tension with the actual practice of the Chancery and other prerogative courts. Pophams statement is highly revealing in that it identifies equity with mercyequity in his view has no part to play as an aspect of or counterpart to law in a judicial case; it only relates to whether the King, utilizing his prerogative power of pardon, elects to render mercy after judgment is rendered in the law case. Only eighteen years earlier in 1586, Mary Queen of Scots, at her own trial on charges of treason, was assured that her trial would proceed according to equity and right, and not by any cunning point of law. Elizabeth Jayne Lewis, The Trial of Mary Queen of Scots: Sixteenth Century Crisis of Female Sovereignty (New York: Palgrave Macmillan, 1992), 96.
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33. Richard Wilson has described Raleighs trial in terms of its ruthlessness and inequity and addresses at length the terrible spectacle of the cancelled executions of Raleigh and his fellow conspiratorsas if the horrors of the planned executions did not make enough of a point. Raleigh was to be drawn on a hurdle through the open streets to the place of execution, there to be hanged and cut down alive, and [his] body opened, [his] privy members cut off and thrown in the fire before [his] eyes, and [his] heart and [his] bowels plucked out. Then [his] head [is] to be stricken from [his] body and [his] body divided into four quarters, to be disposed of at the Kings pleasure. Raleigh was forced to watch the further spectacle of the execution of his fellow conspirators. They received a two-hour reprieve after they had arrived at the scaffold, at the end of which they were pardoned. Raleigh himself was granted a more ominous and ambiguous suspended sentence and imprisoned in the Tower. Richard Wilson, The Quality of Mercy: Discipline and Punishment in Shakespearean Comedy, 5 The Seventeenth Century 141 (1990), at 1.
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Majeske - The Extremity of Claudio's Prosecution and Barnardine's Pardon InShakespeare's Measure For Measure

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Majeske - The Extremity of Claudio's Prosecution and Barnardine's Pardon InShakespeare's Measure For Measure

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