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SHAKESPEARE AND THE LAW

In July 2007, the School of Law at the University of Warwick hosted an


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

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Shakespeare and
the Law
Edited by
PAUL RAFFIELD AND GARY WATT

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Foreword

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

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vi Foreword

between an orange-wife and a faucet-seller, and then rejourn[ing] the contro-


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

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Foreword vii

judgement. It is by acting, impromptu, as advocates, catapulting men out of the


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

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Contents

Foreword v
CAROL CHILLINGTON RUTTER

List of Contributors xi

Introduction 1
PAUL RAFFIELD AND GARY WATT

I. SHAKESPEARE, MONEY AND THE LAW OF CONTRACT 5


1 Shakespeare and Specific Performance 7
MARK FORTIER
2 Consideration, Contract and the End of The Comedy of Errors 19
ANDREW ZURCHER

II. SHAKESPEARE, WOMEN AND THE LAW 39


3 The Bawdy Court 41
JONATHAN BATE
4 Shakespeare and the Marriage Contract 51
GERMAINE GREER
5 Judging Isabella: Justice, Care and Relationships in Measure for Measure 65
ERIKA RACKLEY

III. SHAKESPEARE AND THE LAW OF LOVE 81


6 Shakespeare Possessed: Legal Affect and the Time of Holding 83
BRADIN CORMACK
7 The Tragedy of Law in Shakespearean Romance 101
KATRIN TRÜSTEDT
8 Law and its Subversion in Romeo and Juliet 119
DANIELA CARPI

IV. JUSTICE AND THE ROYAL PREROGATIVE 135


9 ‘The King is a Thing’: the King’s Prerogative and the Treasure of
the Realm in Plowden’s Report of the Case of Mines and Shakespeare’s
Hamlet 137
CAROLYN SALE

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x Contents

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


King Lear 159
GIUSEPPINA RESTIVO

V. VIOLENCE, THE STATE AND THE CITIZEN 173


11 Punishment Theory in the Renaissance: the Law and the Drama 175
HARRY KEYISHIAN
12 Terrorists and Equivocators 185
IAN WARD
13 ‘Terras Astraea reliquit’: Titus Andronicus and the Loss of Justice 203
PAUL RAFFIELD
14 Titus Andronicus vs Le More Cruel and Les Portugais Infortunés:
Humiliation, Punishment and Violence in the Shakespearean and French
Theatre of the Late Sixteenth and Early Seventeenth Century 221
CHRISTIAN BIET

VI. THE MERCHANT OF VENICE AND THE INFINITE MEANINGS OF ‘LAW’ 235
15 The Law of Dramatic Properties in The Merchant of Venice 237
GARY WATT
16 Shylock in Transylvania: Anti-Semitism and the Law in East Central
Europe 253
ISTVÁN POGÁNY
17 Shylock as a Politician 271
ANTON SCHÜTZ
18 The Concept and Performance of ‘The Code’ in The Merchant of
Venice 289
RICHARD H WEISBERG

Index 299

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Contributors
Jonathan Bate, University of Warwick. Professor of Shakespeare and Renais-
sance Literature at the University of Warwick and a Governor and Board member
of the Royal Shakespeare Company. His many books include Shakespeare and
Ovid (Oxford University Press, 1993) and The Genius of Shakespeare (Oxford
University Press, 1997). He is the editor of ‘The RSC Shakespeare’ edition of
William Shakespeare’s complete works (Macmillan, 2007). He was awarded a
CBE in the Queen’s 80th Birthday Honours ‘for services to Higher Education’.

Christian Biet, Université de Paris-X, Nanterre. Professor in Performing Arts,


Theatrical and Drama Aesthetics and French Studies at the University of Paris-X
Nanterre, and the Institut Universitaire de France. He is Permanent Visiting
Professor to New York University. His many books include Moi, Pierre Corneille
(Gallimard, Découvertes, 2006); Qu’est-ce que le théâtre? (with Christophe Triau)
(Gallimard, Folio essais inédit, 2006); Théâtre de la cruauté et récits sanglants
(France XVIe–XVIIe siècle) (Robert Laffont, Bouquins, 2006).

Daniela Carpi, University of Verona. Professor of English Literature at the


Faculty of Foreign Literatures, Department of English Studies, University of
Verona. Her books include In Limine. Cultura ed enigma (Firenze, Alinea, 1997);
Literature and Visual Arts in the Twentieth Century (Bologna, Re Enzo, 2002);
Why Plato? The Influence of Plato on Twentieth Century English Literature (Hei-
delberg, Winter, 2005). Her edited collections include Shakespeare and the Law
(Ravenna, Longo, 2003); Property Law in Renaissance Literature (Frankfurt am
Main, Peter Lang, 2005); and The Concept of Equity: an Interdisciplinary Assess-
ment (Heidelberg, Winter, 2006).

Bradin Cormack, University of Chicago. Associate Professor of English at the


University of Chicago. In addition to essays on Shakespeare’s poetry and drama,
he is author of A Power to Do Justice: Jurisdiction, English Literature, and the Rise
of Common Law, 1509–1625 (2008). He is also co-author of Book Use, Book
Theory: 1500–1700, and co-editor of the forthcoming volume, The Forms of
Renaissance Thought.

Mark Fortier, University of Guelph, Ontario. Director of the School of English


and Theatre Studies at the University of Guelph, Ontario, Canada. He is the
author of Theory/Theatre: an Introduction (1997, 2002) and The Culture of Equity
in Early Modern England (2005), and co-editor of Adaptations of Shakespeare
(2000) and Royal Subjects: Essays on the Writings of James VI and I (2002).

Germaine Greer. Emeritus Professor of English and Comparative Studies at the


University of Warwick. Her first book, The Female Eunuch (1969), remains one of

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xii Contributors

the most influential texts of the feminist movement. Her most recent book,
Shakespeare’s Wife (2007) offers a radical re-reading of Shakespeare’s married life.

Harry Keyishian, Fairleigh Dickinson University. Professor of English at Fair-


leigh Dickinson University in Madison, New Jersey, and Director of Fairleigh
Dickinson University Press. His published books include The Shapes of Revenge:
Victimization, Vengeance, and Vindictiveness in Shakespeare (Humanities Press,
1995) and Screening Politics: the Politician in American Movies (The Scarecrow
Press, 2003).

István Pogány, University of Warwick. Professor of Law at the University of


Warwick. His books include Righting Wrongs in Eastern Europe (Manchester
University Press, 1997) and The Roma Cafe: Human Rights and the Plight of the
Romani People (Pluto, 2004).

Erika Rackley, University of Durham. Lecturer in the Department of Law at the


University of Durham. She writes on judicial diversity and the woman judge. Her
essay on ‘Shakespeare’s Portia as a Continuing Metaphor for the Woman Lawyer’
won the Victoria Fisher Memorial Prize in 2001.

Paul Raffield, University of Warwick. Associate Professor in the School of Law at


the University of Warwick. Author of Images and Cultures of Law in Early Modern
England: Justice and Political Power, 1558–1660 (Cambridge University Press,
2004). In addition to his academic career, Paul continues to work as an actor and
director. He is co-editor (with Gary Watt) of the journal, Law and Humanities.

Giuseppina Restivo, University of Trieste. Professor of English Literature at the


University of Trieste, where she is Deputy Head of the Department of Foreign
Literatures, Comparative and Cultural Studies. Her books include La nuova scena
inglese (Torino, Edward Bond/Einaudi, 1977) and Le soglie del postmoderno:
‘Finale di partita’ di S. Beckett (Bologna, Il Mulino, 1991).

Carol Chillington Rutter, University of Warwick. Professor of English and


Director of the CAPITAL Centre (Creativity and Performance in Teaching and
Learning) at Warwick and a Trustee of the Shakespeare Birthplace Trust. Her
most recent book is Shakespeare and Child’s Play: Performing Lost Boys on Stage
and Screen (Routledge, 2007). She is editor of the Manchester University Press
Shakespeare in Performance series and co-author of Henry VI in Performance
(2006). In 2007, she was honoured with a Warwick Award for Teaching
Excellence.

Carolyn Sale, University of Alberta. Assistant Professor in the Department of


English and Film Studies at the University of Alberta. She is currently working on
a book, Common Properties: the Early Modern Writer and the Law, 1546–1628. Her

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Contributors xiii

recent publications include ‘The “Roman Hand”: Women, Writing and the Law in
Att.-Gen. v. Chatterton and the Letters of the Lady Arabella Stuart’ (English
Literary History, 2003) and ‘Eating Air, Feeling Smells: Hamlet’s Theory of
Performance’ (Renaissance Drama, 2006).

Anton Schütz, Birkbeck College, London. Senior Lecturer in Law at Birkbeck


College, London. He holds a Doctorate in Law from the University of Vienna and
a post-graduate degree in Social Anthropology from the École des Hautes Études
en Sciences Sociales (Paris). His recent published work includes ‘Structural
Terror: a Shakespearean Investigation’ in Peter Goodrich, Lior Barshack and
Anton Schütz (eds), Law, Text, Terror (London, Glasshouse Press, 2006) 71–92.

Katrin Trüstedt, European University, Viadrina Frankfurt. Assistant Professor


of Western European Literatures at the European University, Viadrina Frankfurt.
Her published work includes the article ‘Secondary Satire and the Sea-Change of
Romance’ (2005) 17(3) Law and Literature 345.

Ian Ward, Newcastle Law School. Professor of Law at Newcastle Law School,
University of Newcastle-upon-Tyne. His books include Law and Literature:
Possibilities and Perspectives (Cambridge, 2005); Shakespeare and the Legal Imagi-
nation (Butterworths, 1999); and most recently The English Constitution: Myths
and Realities (Intl Specialized Book Service Inc, 2004).

Gary Watt, University of Warwick. Reader and Associate Professor in Law at the
University of Warwick. His books include Trusts and Equity (Oxford University
Press, 2003). He is co-editor (with Paul Raffield) of the journal, Law and
Humanities.

Richard H Weisberg, Cardozo Law School, Yeshiva University. Floersheimer


Professor of Constitutional Law at the Cardozo Law School, Yeshiva University,
New York City. His contributions to the field of Law and Literature include The
Failure of the Word (Yale University Press) and Poethics: and Other Strategies of
Law and Literature (Columbia University Press).

Andrew Zurcher, University of Cambridge. Fellow in English at Queens’ College


and a Newton Trust Lecturer in the Faculty of English, Cambridge. He is
currently writing Shakespeare and the Law for the Arden Shakespeare.

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Introduction

PAUL RAFFIELD AND GARY WATT

HE PAPERS IN this collection were delivered at the conference on


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

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2 Paul Raffield and Gary Watt

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

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

1
Letter ‘To the Gentlemen Students of both Universities’ in the Preface to Robert Greene,
Menaphon (c 1589).

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Introduction 3

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

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4 Paul Raffield and Gary Watt

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

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Shakespeare, Money and the Law of


Contract

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1
Shakespeare and Specific
Performance

MARK FORTIER

ET ME BEGIN self-indulgently with two stories featuring myself.


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

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8 Mark Fortier

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

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

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Shakespeare and Specific Performance 9

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

More glad than is


The teeming earth to see the longed-for sun
Peep through the horns of the celestial ram,
Am I, to view thy splendour, darkening his.9

Here we have what Peter Womack calls a ‘parodic apotheosis of money’,10 a


scathing critique of the excesses of capital. There is a striking example of
anti-monetary thinking in Edmund Spenser’s discussion of the Brehon Law in
Ireland, whereby a culprit could atone for a crime, even murder, by paying
compensation to the victim or the victim’s family. How horrible, it is argued, to
reduce human life to monetary recompense.11

8
AD Nuttall, Shakespeare the Thinker (New Haven, Yale University Press, 2007).
9
Ben Jonson, Volpone (Arlington Heights, Harlan Davidson, 1958) 1.1.3–6.
10
Peter Womack, Ben Jonson (Oxford, Basil Blackwell, 1986) 74.
11
Edmund Spenser, ‘A View of the Present State of Ireland’ in Spenser’s Prose Works: the Works of
Edmund Spenser (Baltimore, Johns Hopkins University Press, 1949) vol IX, 47.

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10 Mark Fortier

Karl Marx was quick to point to similar critique in Shakespeare, citing Timon’s
rant against gold:

Thus much of this will make


Black white, foul fair, wrong right,
Base noble, old young, coward valiant . . .
. . . This yellow slave
Will knit and break religions, bless th’ accurs’d,
Make the hoar leprosy ador’d, place thieves
And give them title, knee, and approbation
With senators on the bench. This is it
That makes the wappen’d widow wed again;
She, whom the spittle-house and ulcerous sores
Would cast the gorge at, this embalms and spices
To th’ April day again.12

For Marx, and for Marx’s Shakespeare, money is

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

Money is the root of evil. The question is how sustained are such sentiments in
Shakespeare’s work? I would say not very. A related anti-monetary sentiment is
expressed by the somewhat wacky Romeo when paying the apothecary for
poison:

There is thy gold, worse poison to men’s souls,


Doing more murther in this loathsome world,
Than these poor compounds that thou mayest not sell.
I sell thee poison, thou hast sold me none.
Farewell! Buy food, and get thyself in flesh. (Romeo and Juliet, 5.1.80–4)

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

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

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Shakespeare and Specific Performance 11

had a German acquaintance of working-class background who would say, ‘Gelt


stinkt nicht’—money doesn’t stink. A too simplistic reading of Shakespeare, then,
on two counts, would see him rejecting, as in Timon of Athens, a system whereby
money replaces and perverts all values to stand for the inherent and irreplaceable
values of specific things themselves.
A very different and key moment comes in Troilus and Cressida, when Priam
reads an offer to settle that has come from the Greeks:

After so many hours, lives, speeches spent,


Thus once again says Nestor from the Greeks:
‘Deliver Helen, and all damage else—
As honour, loss of time, travail, expense,
Wounds, friends, and what else dear that is consum’d
In hot digestion of this cormorant war—
Shall be strook off ’. (2.2.1–6)

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

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12 Mark Fortier

beautiful because it is good for bearing children.14 Shakespeare appears to be


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

14
James Joyce, A Portrait of the Artist as a Young Man (Harmondsworth, Penguin, 1968) 208–9.
15
My analysis here is not the same as, but does not conflict with René Girard’s notion of mimetic
desire in A Theatre of Envy: William Shakespeare (New York, Oxford University Press, 1991).
16
On a historical note, Holdsworth asserts that it was not clear until the eighteenth century that
specific performance depended on the quality of the thing itself (at 457).

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Shakespeare and Specific Performance 13

and paradoxical example of specific performance: beyond money, horrible,


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

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14 Mark Fortier

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

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

17
Harold Bloom, Shakespeare: the Invention of the Human (New York, Riverhead Books, 1998)
680–1; Nuttall, n 8 above, at 374.

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Shakespeare and Specific Performance 15

And, like the baseless fabric of this vision,


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

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

18
Girard, n 15 above, at 330.

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16 Mark Fortier

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

19
Ian Ward, Shakespeare and the Legal Imagination (London, Butterworths, 1999) 99–100.

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Shakespeare and Specific Performance 17

Going somewhat deeper is a socio-humanitarian awareness of the human suffer-


ing and desperation that follows from poverty and want. Deeper and weightier
still, and I would say occupying the broad centre of Shakespeare’s work, is an
attachment to particular things—love of the thing itself—along with the sense of
the folly, cruelty and impossibility that attend on such attachments. Buried
beneath all this and occasionally erupting on the surface is a nihilism that sees all
value as passing away into meaninglessness and oblivion. Often all these perspec-
tives jostle in a single play.
Or they can arise in a single speech. About to go into exile, Hamlet says:

Rightly to be great
Is not to stir without great argument,
But greatly to find quarrel in a straw
When honour’s at the stake. (4.4.53–6)

Hamlet here compares his own pusillanimity to Fortinbras’ (foolhardy) will to


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

20
Millicent Bell, Shakespeare’s Tragic Skepticism (New Haven, Yale University Press, 2002) x.
21
Marx and Engels, n 13 above, at 436.
22
Karl Marx, The Letters of Karl Marx (Englewood Cliffs, Prentice-Hall, 1979) 30.

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18 Mark Fortier

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

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

ANDREW ZURCHER*

HETHER IN THE moral philosophical terms of Aristotelian ethos


or Ciceronian officia, the religious terms of hot Protestant
preachers, or the epistemological terms made fashionable by the
publication of Estienne’s edition of Sextus Empiricus (1562–68) and Montaigne’s
Essais (1580–92), no word cut more deeply into 1590s hermeneutical theory than
‘error’. To go astray, to mar one’s faith, to mistake opinion for knowledge—these
all represented ‘errors’ of a similar form. The common law, too, had its own
theory of error, increasingly under pressure from 1585, when Elizabeth estab-
lished the Exchequer Chamber as a court of error to resolve disputes in law
between the two royal courts of King’s Bench and Common Pleas. The common
law approach to error, like its approach to hermeneutics in general, was defined
by the absolute and precise terms in which it was expressed; as the 1641 legal
glossary, Les Termes de la Ley, defines it, error:

est un fault en un judgement, ou en le processe, ou proceeding al judgement, ou


execution sur ceo en Court de Record, quel fault en le civill Ley est appel un Nullitie.
[Errour is a fault in a judgment, or in the process, or proceeding to judgment, or in the
Execution upon the same in a Court of Record, which in the Civil Law is called a
Nullitie.]1

As a ‘fault’ of process, argument, judgment or execution, the common law error


could be identified and ‘reversed’; as Cowell notes in his Interpreter of 1607,
‘thereuppon the writ, which is brought for remedy of this ouersight, is called a

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

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20 Andrew Zurcher

writ of error, in Latine, De errore corrigendo’.2 The institution of the Exchequer


Chamber as a court of error (an optimistic piece of practical government aimed
at restoring the common law’s indifferent and predictable justice) testifies to the
contemporary assumption, among lawyers at least, that error could be eradicated.
Among the many discursive contexts in which the word and the concept of ‘error’
functioned as a spectre of instability, doubt and transgression, the law—
uniquely—adopted a practical and (at least rhetorically) decisive approach to its
remedy.
In both legal and literary discourses, the early 1590s witnessed a serious
engagement with the problem of interpretative error. The semantic and allegori-
cal reach of ‘error’ had informed at least one influential literary representation, in
the first canto of Edmund Spenser’s The Faerie Queene (1590), by the time
Shakespeare sat down to compose his own account, in The Comedy of Errors
(1594). Spenser had conspicuously drawn on the legal understanding of error as
one pole in the approach to the epistemologically complex relation of single truth
to manifold falsehood.3 Like Spenser, Shakespeare turned to the law as an
important context for his framing of the hermeneutical crisis facing literary
among other forms of writing; but unlike Spenser, as a dramatist Shakespeare
took the problem away from a richly significant allegorical space, and inserted it
into a quick-moving social and mercantile context. This transition placed acute
emphasis on the practical aspect of error, and the difference between legal and
literary formulations of the relation between causes and ends. Shakespeare also
broke with Spenser by focusing his comic study of error on the same issue that
had recently provoked debate in contemporary legal circles: contract. The devel-
oping law of contract was at the centre, in the early 1590s, of a long-running
struggle between the two royal courts in Westminster, largely fought through
writs and courts of error; by immersing his characters in a system of contractual
relations beset by errors, Shakespeare triangulated the related problems of cause,
end and error in a way that brought legal and literary hermeneutical practices
palpably into tension.
The word that comes to dominate the thought, if not manifestly the language,
of The Comedy of Errors is consideratio, or ‘consideration’, which as it was used by
English legal writers of the sixteenth and seventeenth centuries denoted the thing
in respect of which a ‘parol undertaking’ was made, and which transformed that
promise into an actionable undertaking.4 If legal hermeneutics stress a pragmatic
actionability foreign to literary interpretation, the distinction might be said to be
distilled or miniaturised in the consideratio, for the material delivery of this

2
John Cowell, The Interpreter: or Booke containing the Signification of Words (Cambridge, John
Legate, 1607), sig Cc1r.
3
See Andrew Zurcher, Spenser’s Legal Language: Law and Poetry in Early Modern England
(Cambridge, D.S Brewer, 2007) 45–9.
4
For an introductory discussion of the origins and meaning of consideratio in the Tudor period,
see J H Baker, ‘Origins of the “Doctrine” of Consideration’, and ‘New Light on Slade’s Case’ in The
Legal Profession and the Common Law (London, Hambledon, 1986) 369–91, 393–432.

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Consideration, Contract and the End of The Comedy of Errors 21

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

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

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22 Andrew Zurcher

CAUSES AND ENDS: THE FATALISM OF THE


COMEDY OF ERRORS

Egeon, merchant of Syracuse, has a problem. He has been looking for his lost son
and wife for decades, but this is not exactly his problem. It is true that he has been
apprehended by Ephesian bailiffs, and that he now faces trial, and a sentence of
death, before the Duke Solinus—but this is not exactly his problem, either. His
problem, rather, is that he is not particularly bothered by his misfortune, and
never has been; and it is this fatalism that generates the extraordinary humour,
and pathos, of the opening scene of The Comedy of Errors. ‘Proceed, Solinus, to
procure my fall’, Egeon begins the play, in a summary statement of his apathetic
world-weariness and lethargic appetite for self-destruction. Solinus subsequently
draws attention to this fatalism as he replies (completely ignoring the theatrical
flourish with which Egeon has laid his head on the block): ‘Merchant of Syracusa,
plead no more. / I am not partial to infringe our laws’.7 Solinus speaks as if Egeon
had made the least representation in his own defence, when of course he has said,
and meant, exactly the opposite. In the ensuing speeches, this egregious fatalism
comes to define his attitude, and to colour his diction. Pro-ceed, pro-cure,
pro-sperous, pro-vision, pro-vide, pro-long, pro-crastinate, pro-blem: Egeon’s
opening and closing speeches in the first scene are scored verbally with the
pessimistic pro-lepsis that leads him to assume the worst, and resign himself to it.
Shakespeare insists enough on Egeon’s hyperbolic fatalism in this scene to make
it unavoidable for the reader; for example, in the passage where Egeon most
self-consciously styles his fortunes as an episode of providential romance, the
sea-wreck, his autobiographical account reaches a high pitch of absurdity:

But longer did we not retain much hope,


For what obscured light the heavens did grant
Did but convey unto our fearful minds
A doubtful warrant of immediate death,
Which though myself would gladly have embraced,
Yet the incessant weepings of my wife,
Weeping before for what she saw must come,
And piteous plainings of the pretty babes,
That mourned for fashion, ignorant what to fear,
Forced me to seek delays for them and me. (1.1.65–74)

The apparent ambiguity of ‘doubtful’ and ‘fearful’ is here yoked inseparably to the
conviction of ‘warrant’ and the modal necessity of ‘must’, and Aemilia’s weeping,

7
William Shakespeare, The Comedy of Errors in Stanley Wells and Gary Taylor (eds), The
Complete Works (Oxford, Oxford University Press, 1988) 1.1.1–4. All further references to this play,
and other Shakespeare plays, will be to the same edition, and will be parenthetically noted by Act,
scene and line number.

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Consideration, Contract and the End of The Comedy of Errors 23

like that of the four children, becomes a formal response to a necessary narrative;
all six of them are ‘forced’ by ‘the heavens’, and the best ends to which Egeon can
aspire are merely ‘delays’, and not escapes.
Egeon’s tendency toward Aegean pessimism, and the way he represents occa-
sions of doubtfulness or fearfulness as ‘warrants’ for necessary outcomes (turning
risk, effectively, into a sign for disaster), is one he shares at some point with
almost every other character of the play. Chief among these parallels in the inset
narratives is that of Adriana, the jealous (and much abused) wife, whose
readiness to suppose her husband’s philanderings makes her a figure alternately
of pity, righteousness and scorn. In the first scene of the second Act, she and her
sister Luciana wait at home while Dromio goes in search of her husband. The
anxiety that she feels is prepared by Luciana, who nervously suggests in the
opening lines of the scene that Antipholus has been invited by ‘some merchant’,
‘and from the mart he’s somewhere gone to dinner’. (2.1.4–5) Adriana becomes
assured within very few lines that Antipholus’s tardiness is a sign for his infidelity:
first she rails against his ‘liberty’, then suspects that he ‘start[s] some otherwhere’,
then tendentiously misinterprets Dromio’s assertion that her husband is ‘horn-
mad’, and then, finally, comes out with the explicit charge:

His company must do his minions grace


Whilst I at home starve for a merry look.
Hath homely age th’alluring beauty took
From my poor cheek? Then he hath wasted it.
Are my discourses dull? barren my wit?
If voluble and sharp discourse be marred,
Unkindness blunts it more than marble hard.
Do their gay vestments his affections bait?
That’s not my fault; he’s master of my state.
What ruins are in me that can be found
By him not ruined? Then is he the ground
Of my defeatures. (2.1.85–96)

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

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24 Andrew Zurcher

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

Sister, you know he promised me a chain.


Would that alone a love he would detain
So he would keep fair quarter with his bed. (2.1.105–7)

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

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

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Consideration, Contract and the End of The Comedy of Errors 25

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

ANGELO: Master Antipholus.

ANTIPHOLUS S: Ay, that’s my name.

ANGELO: I know it well, sir. Lo, here’s the chain.


I thought to have ta’en you at the Porpentine.
The chain unfinished made me stay thus long.

ANTIPHOLUS S: What is your will that I shall do with this?

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

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26 Andrew Zurcher

ANGELO: What please yourself, sir. I have made it for you.

ANTIPHOLUS S: Made it for me, sir? I bespoke it not.

ANGELO: Not once, nor twice, but twenty times you have.
Go home with it, and please your wife withal,
And soon at supper-time I’ll visit you,
And then receive my money for the chain.

ANTIPHOLUS S: I pray you, sir, receive the money now,


For fear you ne’er see chain nor money more.

ANGELO: You are a merry man, sir. Fare you well. (3.2.149–62)

This delay between delivery of the chain and payment for the chain would make
sense if Angelo were giving the chain to Antipholus of Ephesus, whom he would
not expect to have requisite funds upon his person; but Antipholus of Syracuse
does have the money, and offers it to Angelo with some insistence, saying, ‘receive
the money now, / For fear you ne’er see chain nor money more’. Such an
insistence an actor would have to support with some physical gesture—reaching
for gold, perhaps—and Angelo’s possibly cagey incomprehension is not easily
explained away. The only plausible explanation is that he construes Antipholus’s
response as some sort of trap; rather than believing Antipholus to have offered
the money in a sincere gesture of magnanimous concern, Angelo assumes that
Antipholus is testing his own credit. If Angelo were to agree to accept the money
then, in other words, he fears he would be dishonouring his patron, as if
suggesting that Antipholus could not be trusted to deliver the money later. To
delay the demand for payment is to do honour to the debtor. This makes good
sense of Angelo’s incredulity when, at the beginning of Act 5, he supplies the
second merchant with a character witness of Antipholus of Ephesus:

Of very reverend reputation, sir;


Of credit infinite, highly beloved,
Second to none that lives here in the city.
His word might bear my wealth at any time. (5.1.5–8)

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

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

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Consideration, Contract and the End of The Comedy of Errors 27

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

SLADE’S CASE AND LEGAL PESSIMISM

If a Muldruvian ‘economy of obligation’ was basic to Elizabethan social organisa-


tion, the political system that increasingly was called upon, and tried, to regulate
that system was the common law of contract. As noted above, this part of the law
was changing rapidly at precisely the time that The Comedy of Errors was written
and first performed. Slade’s Case was still a few years off when Shakespeare
penned his imitation of Plautus, but the tensions between the King’s Bench and
the Common Pleas that finally led Chief Justice Popham to convoke the judges of
the realm in consultation on Slade v Morley were certainly active in 1594. The
historical ground has been extensively covered by Simpson, Ibbetson and Baker
in a series of short articles and magisterial studies.14 For a century and more, the
assumpsit action had been expanding in King’s Bench as an alternative to actions
of covenant and debt for contractual non-feasance. Where a document under seal

“currency of reputation”—about the creditworthiness of households attempting both to cooperate


and compete within communities increasingly permeated by market relations’. See Craig Muldrew,
The Economy of Obligation: the Culture of Credit and Social Relations in Early Modern England
(Basingstoke, Macmillan, 1998).
13
See, for example, the writ of debt in Anthony Fitzherbert, La Nouuelle Natura Breuium
(London, Richard Tottel, 1553), f. 119v: ‘Rex vicecomiti &c. Precipe A. quod iuste &c. reddant B. C
solidos quos ei debet et iniuste detinet vt dicit. Et nisi fecerit, et predictus B. fecerit &c. tunc sommone per
bonos sommonitores predictum A. &c.’ [‘The king to the sheriff &c. Command A. that justly &c. he
render to B. one hundred shillings which he owes him and unjustly detains, as he says. And if he will
not do so, and if the aforesaid B. &c. then summon the aforesaid A. by good summoners &c.’]
14
See eg, AWB Simpson, History of the Common Law of Contract: the Rise of Assumpsit (Oxford,
Clarendon Press, 1975); JH Baker, ‘The Establishment of Assumpsit for Nonfeasance’ in The Reports of
Sir John Spelman (London, Selden Society, 1978) 255–98; ‘Origins of the “Doctrine” of Consideration’
in The Legal Profession and the Common Law (London, Hambledon, 1986) 361–91; Baker, ‘New Light
on Slade’s Case’, n 4 above, at 393–432; and David Ibbetson, A Historical Introduction to the Law of
Obligations (Oxford, Oxford University Press, 1999).

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28 Andrew Zurcher

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

15
JH Baker, An Introduction to English Legal History (4th edn, London, Butterworths, 2002) 343.
16
Lawrence Tanfield arguing Slade’s Case at Serjeants Inn, 1598, from BL MS Add 25203, ff
12–12v and BL MS Stowe 398, ff 10v–11, edited and translated in Baker, ‘New Light on Slade’s Case’, n
4 above, at 397.

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Consideration, Contract and the End of The Comedy of Errors 29

bailor failed to use ‘apt parolls’ just as a 1594 debtee might have failed to use the
word ‘consideration’, or the debtor the word ‘undertake’; and yet the law might
safely construe the first action as a pledge, and the second as an assumpsit, for the
sake of the thing itself: a chain was surrendered, or a consideration given. Such a
modest fiction represented only one of the many ways in which suitors would
embellish their counts in the sixteenth century to give a plausible basis for
bringing a trespassory action on the case for contract in King’s Bench. Baker has
given a summary account of the others in his chapter, ‘New Light on Slade’s
Case’:

The Common Pleas were content to allow actions on the case in situations where debt
would lie, provided there was something collateral or additional to the mere contract or
indebtedness, which would provide consideration for an undertaking to pay, and which
would therefore amount to a distinct cause of action. Suitable additional factors were:
an agreement to pay in a certain place or by several instalments or in specified coin, a
forbearance to sue for a fixed time, or a payment or set-off of a smaller sum of money.
Since the action of debt lay only to recover the liquidated sum owed, it gave no remedy
in respect of these additional factors, and so an action on the case was legitimate. The
action on the case, being tortious in nature, was also appropriate to recover special loss
flowing from the non-payment: for instance, if the debt were in wares or grain and after
the failure to deliver the market values rose or the plaintiff’s family went hungry or the
plaintiff suffered in his business.17

It must be significant that, in Shakespeare’s play, we see many of these ‘collateral


or additional’ conditions applied not only to Antipholus’s debt, but to Egeon’s
and Adriana’s ‘debts’. For example, Antipholus and Angelo agree to effect their
bargain at the Porpentine (specified place), and Angelo, as we have seen, later
refuses to accept the payment until Antipholus has shown the chain to his wife,
after which he promises to come to the house to collect the money (special
condition: forbearance). When Antipholus of Ephesus rightly claims that Angelo
never gave him the chain, Angelo protests (and here the wording is crucial):

You wrong me more, sir, in denying it.


Consider how it stands upon my credit. (4.1.67–8)

Angelo alleges real financial damage to him as a result of Antipholus’s failure to


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

17
Baker, ‘New Light on Slade’s Case’, n 4 above, at 415–16. See also Baker, n 15 above, at 343.

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30 Andrew Zurcher

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

18
Baker, ‘New Light on Slade’s Case’, n 4 above, at 414.

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

Give me the ring of mine you had at dinner,


Or for my diamond the chain you promised,
And I’ll be gone, sir, and not trouble you. (4.3.60–2)

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

19
See JH Baker, The Reports of Sir John Spelman (London, Selden Society, 1978) vol II, 257–8.
20
Obvious analogies to the fungible twinning of The Comedy of Errors appear not only in Twelfth
Night, but in the bed tricks of Measure for Measure and All’s Well That Ends Well, in the rapid
exchange of Hermia for Helena in the core scenes of A Midsummer Night’s Dream, and in the
discovery of ‘another Hero’ in Much Ado About Nothing.
21
‘No dame hereafter living / By my excuse shall claim excuse’s giving’. See The Rape of Lucrece,
1714–15.

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32 Andrew Zurcher

Another possibility arises from one of the arguments consistently rehearsed by


Common Pleas judges in their antagonism for King’s Bench practice. In the aptly
named case of 1595, Paramour v Payne, Thomas Walmsley noted that an
agreement should only sound in assumpsit when, because of the special circum-
stances of its formation, it could not sound in debt:

Action on the case is so called from cadendo, because something happens in it which
does not happen in other cases. For where you have an ordinary action of debt, you may
not have action on the case unless upon special cause. As, in this case, if the money were
payable at Michaelmas and for non-payment of it the other will forfeit his bond of £20,
or such similar casual or special thing, action on the case lies. Otherwise not.22

This is an important reformulation of the argument that a single cause should


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

In regard whereof, as also for that the Sports intended were especially for the gracing of
the Templarians, it was thought good not to offer any thing of Account, saving Dancing

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

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

The supposed disamity between the two Inns was probably itself staged, and the
errors scripted in order to make way for the elaborate restitutions that followed: a
mock trial of the sorcerer (ie playwright) who was supposed to have caused the
tumults and, by consequence, the rift; and, following that, an elaborate masque
laid on before a celebrity dinner audience on 3 January, in which the allegorical
figures Graius and Templarius approached the altar of the Goddess of Amity and
reaffirmed their bonds of mutual friendship. Error, in this view, was nothing but
a scripted ‘occasion’ (the Gesta’s exact word) for the inevitable reconciliation and
the ‘recovery’ of lost honour.
The pattern of error and reform which structures the 1594 revels in Gray’s Inn
plays out, in large, the structures of error-return and consideration-completion
that we have been noting in The Comedy of Errors. The analogy is so striking that,
while it would be wrong to suggest that the play was written for the revels, there
can be no doubt that the revels were designed and scripted with the play
(whether new or old) carefully in mind:

Thus was this Shew ended, which was devised to that End, that those that were present
might understand, that the Unkindness which was growing betwixt the Templarians
and us, by reason of the former Night of Errors, and the uncivil Behaviour wherewith
they were entertained, as before I have partly touched, was now clean rooted out and
forgotten, and that we now were more firm Friends, and kind Lovers, than ever before
we had been, contrary to the evil Reports that some Enviers of our Happiness had sown
abroad.24

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

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

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34 Andrew Zurcher

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

TO WHAT END THE CAUSE?

I have suggested here the ways in which a reading of The Comedy of Errors should
be alive to sixteenth-century developments in the common law of contract.
Without an awareness of these developments, I have argued, the reader cannot
make full sense of Egeon’s and Adriana’s fatalism, or understand how that
fatalism participates in the comic genre’s emphasis on social performance.
Shakespeare’s acquisitive intelligence appropriated contemporary legal debates
about the nature and regulation of promises, presumably, in order to enrich the
comedy’s representation of selfhood, trust, credit, narrative, and so on. But to
suppose that the legal allusiveness and even legal thinking of the play are not
accidental effects is not to solve, but to provoke, interpretative problems. Is a
sustained engagement with contemporary legal argument in a play of this kind
(especially one performed in an Inn of Court context, before an audience of
lawyers and law students) evidence of an irreducible social or political instru-
mentality? Should our awareness of Shakespeare’s engagement with the law, with
its pragmatic epistemology, lead us to draw literature to law, or law to literature?
There are, of course, various plausible ways to explain and interpret Shake-
speare’s recourse to legal thinking in this play, as in his other plays and poems,
and it would be imprudent and impractical to attempt to adjudicate upon them
too summarily here. A playwright, for example, can be expected to write for his
audience; and whether The Comedy of Errors was first staged at Gray’s Inn, or

26
It must be mentioned somewhere that, as Egeon takes his name from Aegeus, the king of Athens
who leapt prematurely to his death from the cliffs at Sunion, so Solinus must take his from Solon, the
Athenian law-giver famous for counting no man happy until his death. Between these two extremi-
ties, of fond prolepsis and terminal circumspection, the error of a human life must carve out some
sort of Aristotelian middle way.

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Consideration, Contract and the End of The Comedy of Errors 35

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

Well, Syracusian, say in brief the cause


Why thou departed’st from thy native home,
And for what cause thou cam’st to Ephesus. (1.1.28–30)

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

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36 Andrew Zurcher

and consistent justice to their litigants; but, similarly, they were attempting to
reduce something invisible and implied—the supposed promise to pay arising on
any bargain—to something visible and explicit: the consideration. In a deftly
ironic move, Shakespeare seems to invoke the common law of contract in The
Comedy of Errors not to parade its developing hermeneutical stability, but to
expose its instability. In moving toward a system of signs, the common law logic
of the consideratio (like that of mens rea) was throwing open the finally insoluble
problem of the knowability of intention.27 Shakespeare’s play, in its hyperbolic
fatalism, seems to jeer at the epistemological smugness of the doctrine of
consideration. Similarly, the common law was moving, as we have seen, from a
general remedy (debt) to a special remedy (the action on the case) for non-
feasance on a contract; the shift in the common law from debt to assumpsit, then,
seems to chart a movement away from the register and toward a more equitable
response to real transactional problems.28 Shakespeare’s play, again ironically,
seems to invoke this apparently equitable development only to travesty its
supposed concern with individuals. In his play, characters’ absorption in their
own causes only leads them further into error, while the exit from error seems to
depend on their ability to ‘clean root out and forget’ their experiences.
Ultimately, it is difficult to get beyond a simple claim that the language of
assumpsit, and ideas about the changing law of contract, are present in The
Comedy of Errors, and that they are brought to bear, analogically, on parallel
problems in psychology, ethics and narrative; as a result of Shakespeare’s relent-
less ironising about the relation of causes to ends, there doesn’t seem to be any
consistently corresponsive intentionality in the play, one that might instruct us
how to interpret such an analogy or series of analogies. At best, the verbal
intensities, the conceptual ambiguities and the striking systems of correspond-
ences, taken together, leave us embedded in a structure of thought, which might
lead us to recognise certain costs or opportunities, but which does not privilege
any given interpretative choice over another. We do not end The Comedy of Errors
believing assumpsit to be a disastrous development because it focuses the mind
on the tortious wrongs associated with contractual risk; we might as easily say
that the play prepares the ground for the resurgence of inviolate promise, as it
was ultimately played out in the Gray’s Inn revels of 1594. Rather, we come away
from The Comedy of Errors, I think, suspecting that the cost of a contractual
remedy is the fugitivity of the promise; that the cost of finding another is the loss
of the self; that the cost of an act of communication is the reality of the
experience communicated; and that, by the same token, the reward is the

27
The ‘imaginary’ quality of the implied promise in a contract led to some concern during the
run-up to Slade v Morley; see Baker, ‘New Light on Slade’s Case’, n 4 above, at 397 n 23 and 398 n 27.
28
It was the position of the Common Pleas judges during the debate over Slade’s Case that
litigants ought not to ‘fly from the Register’ (Thomas Walmsley, quoted in BL MS Hargrave 7 Pt 1 f
188, cited in Baker, ‘New Light on Slade’s Case’, n 4 above, at 414). On the other hand, as Baker notes,
this period saw several examples ‘of the common-law judges’ willingness to bring the law of their
courts into line with conscience’; see Baker, n 19 above, vol II, 259.

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Consideration, Contract and the End of The Comedy of Errors 37

persistence of the promise, the recognition of the other’s loss as a compassionate


sympathy, and the discovery of a new, hyperreality in the performance of identity.
And yet the cause of those maniform suspicions is nothing but an evening’s error.

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II

Shakespeare, Women and the Law

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3
The Bawdy Court

JONATHAN BATE

AWYERS AND COURT officers are better at writing things down


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

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42 Jonathan Bate

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

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

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The Bawdy Court 43

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

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

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44 Jonathan Bate

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

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

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The Bawdy Court 45

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

Thomas Quiney: for incontinence with a certain Margaret Wheeler: cited by Greene: he
appeared: admitted that he had had carnal copulation with Wheeler: submitted himself
to the correction of the Judge: ordered public penance in a white sheet on three Sundays
in the church of Stratford: therafter he proffered 5s. for the use of the poor of the parish
and petitioned the penance to be remitted: ordered to acknowledge the fault in his own
attire before the minister of Bishopton according to the schedule: to certify before the
next court: dismissed.5

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

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

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46 Jonathan Bate

was this alteration of testamentary arrangements, made as a direct result of


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

6
Ibid 122, 128.
7
Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford,
Oxford University Press, 1996) 36.
8
Case of 1613, quoted ibid 69.

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The Bawdy Court 47

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

9
See ibid 66–7.
10
Case of 1610, quoted in Gowing, n 7 above, at 72.
11
Lisa Jardine skilfully reads Othello in the light of defamation cases in her essay ‘“Why Should He
Call her Whore?” Defamation and Desdemona’s case’ in her Reading Shakespeare Historically
(London, Routledge, 1996) ch 1.
12
Henry Porter, Two Angry Women (1599) 1.2.522–7, quoted in Gowing, n 7 above, at 123.

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48 Jonathan Bate

defamed by a story in which a Herefordshire gentleman was put off from paying
court to her by some gossip that he had heard:

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

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

13
Case of 1629, quoted in Gowing, n 7 above, at 68.
14
Quoted in Gowing, n 7 above, at 14. See also ibid at 118 for a case involving Joan Hewes, a
woman who took the box office money and sold fruit at the Red Bull theatre in Clerkenwell.

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The Bawdy Court 49

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

15
All quotations in this paragraph from All’s Well That Ends Well, 5.3.

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50 Jonathan Bate

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

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4
Shakespeare and the Marriage
Contract

GERMAINE GREER

ARRIAGE IN SHAKESPEARE’S time was a matter of negotiation.


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

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

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52 Germaine Greer

John Richardson, overseer and witness respectively to Richard Hathaway’s will in


1581,2 were acting as informal trustees for Hathaway in the matter of his
daughter’s marriage a year later.
Though we are all well aware that in the early modern period royal marriage
negotiations were conducted by go-betweens, we tend to forget the importance of
negotiation and settlement in the lives of ordinary people. The usual
assumption—that such matters concerned only the rich—is quite wrong. Both
sides in a marriage were concerned to bring something to and get something
from the alliance. In Henry VI Part 1, when Henry is about to enter into marriage
with Margaret of Anjou, who brings no dowry, Suffolk, chief mover of the
disastrous match, sneers:

A dower, my lords? Disgrace not so your king


That he should be so abject, base and poor
To choose for wealth and not for perfect love.
Henry is able to enrich his queen
And not seek a queen to make him rich—
So worthless peasants bargain for their wives,
As market-men for oxen, sheep or horse.
Marriage is a matter of more worth
Than to be dealt with by attorneyship. (5.5.48–56)

Suffolk is exactly wrong; marriage is a matter of such worth that it must be dealt
with by attorneyship, because the principals unaided cannot be trusted to behave
with due discretion. Suffolk’s contemptuous dismissal of dowry makes clear that
even the lowest classes made enquiry as to what would be given with a wife. In
Deloney’s novella, Jack of Newbury marries as his second wife his housekeeper.
To make the match, her poor parents have scraped together 20 nobles and a
yearling calf to give with her, along with the assurance that her new husband will
be her father’s sole legatee:

‘O my good son’, quoth the old woman, ‘God’s benison be with thee forever more, for to
tell thee true, we had sold all our kine to make money for my daughter’s marriage, and
this seven year we would not have been able to buy more. Notwithstanding we should
have sold all that ever we had before my poor wench would have lost her marriage’.

‘I’, quoth the old man, ‘should have sold the coat from my back, and my bed from under
me, before my girl should have gone without you’.3

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

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Shakespeare and the Marriage Contract 53

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

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

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54 Germaine Greer

‘Take her by the hand, / And tell her she is thine, to whom I promise / A
counterpoise, if not to thy estate / A balance more replete’. Bertram takes her by
the hand and we have a contract:

Good fortune and the favour of the king


Smile upon this contract, whose ceremony
Shall seem expedient of the now-born brief,
And be performed tonight. (2.3.102–5, 173–80)

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

You knew my father well, and in him me,


Left solely heir to all his lands and goods,

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

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Shakespeare and the Marriage Contract 55

Which I have bettered rather than decreased.


Tell me, if I get your daughter’s love,
What dowry shall I have with her to wife?

Baptista answers:

After my death the one half of my lands


And in possession twenty thousand crowns.

Such a dowry calls forth Petruchio’s offer of a jointure:

And for that dowry I’ll assure her of


Her widowhood, be it that she survive me,
In all my lands and leases whatsoever:
Let specialties be therefore drawn between us,
That covenants may be kept on either hand. (2.1.116–27)

Strangely perhaps, Baptista, who has been very clear that Petruchio had to win
Kate’s love before the match could proceed, simply accepts the highest bid when
it comes to negotiating a match for Bianca. It comes from Tranio disguised as
Lucentio, negotiating as it were for himself, who has nothing. Lucentio could end
up with nothing because his father’s consent has not been sought. Baptista sells
Bianca to the highest bidder: ‘I must confess your offer is the best’; but adds an
inconvenient afterthought:

And, let your father make her the assurance,


She is your own; else, you must pardon me,
If you should die before him, where’s her dower? (2.1.379–82)

And so the counterfeiting suitor has to find himself a counterfeit father.


Information about Elizabethan marriage negotiations in the real world as
distinct from the theatre is not easily come by. There is almost no surviving
documentation of the procedures by which marriage settlements were reached by
ordinary people, probably because it was all done orally before witnesses, as in
the Belott-Mountjoy negotiations. We know rather more than usual about events
leading up to the marriage of the clergyman poet Barnabe Googe and Mary
Darrell in 1564 only because of subsequent litigation in the consistory court of
Canterbury. Mary’s parents originally made suit to John Lennard of Chevening
for his son, Sampson, as a fitting husband for their daughter, Mary.

Master Darrell will confess that he and his wife before Master Googe’s suit, were earnest
suitors to me and that their daughter was as forward in desire as womanhead would
give leave to match my son: and that I never commended but still disabled my son to
them all three, and they all three as fast abled and commended my son.

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56 Germaine Greer

Lennard interviewed Mary several times:

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

Lennard’s testimony reveals that the courting of Mary Darrell had reached the
stage of a match concluded, with letters and tokens exchanged. Because his son
had not been present, the agreement was not a full contract but a pre-contract,
which would have to be formally set aside before a contract with any other party
could be entered into. When Lennard visited the Darrells at Bartholomewtide he
told Mary and her parents that he had heard talk that she was to be married to
Barnabe Googe, which surprised him:

They all three answered me and others for me very often that it was not so and that
Master Googe was but a suitor. To prove that to be true the parents sent me a letter sent
to Master Googe of late wherein she termeth him to be but a suitor and prayeth him to
leave his suit and the parents still say that he hath no hold of her except by secret
enticement against their will he hath caught some word of her, a thing odious to God
and not to be favoured by man.8

Lennard’s outrage can be compared to Egeus’s in A Midsummer Night’s Dream


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

8
Barnabe Googe, Eglogs, Epytaphes and Sonettes (1563), ed Edward Arber (London, Arber
English Reprints, No 30, 1871), 10.

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Shakespeare and the Marriage Contract 57

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

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not always possible or prudent. Imogen’s marriage in Cymbeline has been


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

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designs on both wives of the fat knight. The treatment of the wives, strong,
constant, light-hearted and resourceful as they are, is unique in European
literature.
Though English people were not often actually married by proxy, as was James
VI of Scotland to Anne of Denmark in Copenhagen in 1589 with the Earl
Marshal standing in for the bridegroom, in cases where the parties lived in distant
parts of the country the match might be well advanced before they met for the
first time. The match of Thomas Greene, Ann Hathaway’s lodger at New Place,
with a wealthy widow of Leicester, was almost certainly moved by proxy, at least
in the initial stages.9 While Greene’s match was making, his bride’s stepson,
William Chandler, was matched with Elizabeth Quiney, eldest daughter of the
deceased bailiff of Stratford whom Green had served as solicitor before becoming
Town Clerk of Stratford. This pair of marriages was probably engineered by the
mercery mafia, through which all three families were connected. The process was
not without risk.
In Much Ado About Nothing, Don Pedro offers to woo Hero for Claudio:

And I will break with her and with her father


And thou shalt have her …
I will assume thy part in some disguise
And tell fair Hero I am Claudio,
And in her bosom I’ll unclasp my heart,
And take her hearing prisoner with the force
And strong encounter of my amorous tale.
Then after, to her father will I break,
And the conclusion is, she shall be thine. (1.1.289–90, 300–7)

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

9
Mark Eccles, Shakespeare in Warwickshire (Madison, University of Wisconsin Press, 1961) 127.

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60 Germaine Greer

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

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

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Shakespeare’s brothers all died unmarried. One of them, Edmund, had


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

12
Ibid 26.
13
Ibid 25.
14
See eg ibid 235.
15
Ibid 243–5, facsimile of National Archives, Principal Probate Registry, Selected Wills, Prob 1/4.

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62 Germaine Greer

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

16
Eccles, n 9 above, at 111–12.
17
Schoenbaum, n 1 above, at 248–9.
18
VCH: Warwickshire, n 10 above, iii, 46.
19
Shakespeare Birthplace Trust Record Office, ER 1/1/50, [Thomas Greene] ‘Sir Edward Greville’s
menaces to the Bailiff, Aldermen and Burgesses of Stratford’.
20
Eccles, n 9 above, at 139.
21
Worcestershire Record Office, B/ABI 31, f 30, B/ABI 38, ff 80, 88, 90, 106, B/DB 36, ff. 125v, 137,
139v; D/AB 32, f fv; Martin Ingram, Church Courts, Sex and Marriage in England, 1570–1640
(Cambridge, Cambridge University Press, 1987), 210.
22
Schoenbaum, n 1 above, at 238.

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Shakespeare and the Marriage Contract 63

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

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

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

ERIKA RACKLEY*

ET AGAINST A backdrop of brothels, punks and pimps, Measure


for Measure explores the very best and worst of human nature and
connections. Infidelity and vice flourish; ‘Liberty plucks Justice by
the nose’.1 Corruption and dishonesty have bred poverty and disease. Disorder
and anarchy have become a way of life; the law an ineffectual ‘scarecrow’.2
Unwilling to countenance the ‘tyranny’ of personally repairing the damage his
leniency has caused,3 the Duke appoints Angelo to rule Vienna in his place, while
he continues to observe (and control) the action from a distance, disguised as a
friar. Angelo sets about enforcing the law with intolerant zeal, closing the brothels
and sentencing Claudio to death for lechery and fornication with his pregnant
fiancée, Juliet. Meanwhile, Claudio’s sister Isabella is preparing to join the order
of Saint Clare. Charged by Claudio’s friend, Lucio, to plead with Angelo for
leniency on Claudio’s behalf, Isabella is thrust into a society where debauchery
corrupts law and order. Smitten by Isabella, Angelo offers her a stark choice:

Which had you rather: that the most just law


Now took your brother’s life, or to redeem him
Give up your body to such sweet uncleanness
As she that he hath stained. (2.4.52–3)

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

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66 Erika Rackley

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

ISABELLA AND ANGELO: ‘THIS VIRTUOUS MAID/


SUBDUES ME QUITE’9

Condemned by Coleridge as the least interesting of all Shakespeare’s female


characters,10 Isabella is perhaps better understood as someone who recognises the
incongruity of her position and relationships. She is caught between the necessity

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

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Judging Isabella 67

and unwanted consequences of her continuing engagement with the immoral


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

Why all the souls that were, were forfeit once


And he that might the vantage best have took
Found out the remedy. (2.2.75–7)

Isabella stirs in Angelo feelings of desire and longing, for which he seeks to
transfer responsibility, while satiating his lust. He offers Isabella a choice: to sleep
with Angelo and save her brother’s life or to refuse and thereby condemn Claudio
to death. Her response is typically forthright:

were I under terms of death,


Th’ impression of keen whips I’d wear as rubies,
And strip myself to death as to a bed
That longing have been sick for, ere I’d yield
My body up to shame.14

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

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

Who will believe thee, Isabel?


My unsoiled name, th’ austereness of my life
My vouch against you, and my place I’ th’ state,
Will so your accusation overweigh
That you shall stifle in your own report
And smell of calumny. (2.4.153–9)

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

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

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

ISABELLA AND CLAUDIO: ‘SWEET SISTER, LET


ME LIVE’20

Shakespeare does not often explore the relationship between brother and sister;
the most obvious exceptions being perhaps Ophelia and Laertes and Viola and
Sebastian.21 In the face of adversity the brother/sister bond typically holds fast. It
is unsurprising then that, when faced with a difficult decision, Isabella turns to
Claudio. Her belief that he would rather die than have her sleep with Angelo
stiffens her resolve. Her thoughts move on to the consequences of her decision:
‘Then, Isabel, live chaste, and brother, die:/ More than our brother is our chastity’
(2.4.185). It is this line that for many seals Isabella’s fate as ‘the living antidote to
all human charity, to all generous, deeply concerned sympathy and love’.22 But, as
actress Juliet Stevenson argues, this line is not the end or indeed the premise of
Isabella’s only soliloquy:

the speech is not about chastity, it’s about anarchy … Insisting on her virtue isn’t some
priggish affectation she defends at the cost of her brother’s life. It’s the last redoubt
holding against the chaos that threatens to overrun it.23

The play which began about man-made law and order has become one about
female self-sacrifice. Carol Rutter continues:

Isabella assumes she is powerless, and in the male forum of audience chambers and
courtrooms, of abstract justice and codified bureaucracy, she’s right … Isabella’s power
is personal, physical and sensual, sexual. The forum for female power is a bedroom … it
is precisely because Isabella refuses to enter the bedroom, to conform to the archetype
of self-sacrificing female, that ‘she has been punished terribly over the years’.24

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

20
3.1.133.
21
See Catherine Belsey, Shakespeare and the Loss of Eden: the Construction of Family Values in Early
Modern Culture (Basingstoke, Macmillan Press Ltd, 1999).
22
David Lloyd Stevenson, The Achievement of Shakespeare’s ‘Measure for Measure’ (Ithaca, NY,
Cornell University Press, 1966) 49, cited in Geckle, n 4 above, at 166.
23
Juliet Stevenson, in Rutter, n 5 above, at 51.
24
Rutter, n 5 above, at 29 (quoting actress, Paola Dionisotti).

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70 Erika Rackley

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

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

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Judging Isabella 71

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

28
Dusinberre, n 25 above, at 261.
29
3.1.149. The status of Claudio and Juliet’s union is unclear. In Act 1, Claudio describes Juliet as
‘fast my wife/ Save that we do the denunciation lack/Of outward order’ (1.2.128–30), suggesting that
according to contemporary English law, he is effectively married without having had a marriage
(Sokol and Sokol, n 15 above, at 101). The Duke subsequently condemns Juliet for her ‘sin of a heavier
kind’ despite it being ‘mutually committed’ (2.3.28). Further complications arise when comparing the
status of the marriage contract between Claudio and Juliet with that between Angelo and Mariana;
see further, Sokol and Sokol, n 15 above, at 26–9; also, Margaret Scott, ‘“Our City’s Institutions”: Some
Further Reflections on the Marriage Contracts in Measure for Measure’ (1982) 49 ELH 790.
30
Paola Dionisotti, in Rutter, n 5 above, at 26.
31
3.1.117.
32
Claudio is well-liked within the play: Mistress Overdone believes him to be ‘worth five
thousand’ of Lucio and his companions (1.2.49–50); Escalus calls him a ‘gentleman’ (2.1.6); the
Provost wishes for his pardon (4.2.58–9) and Lucio declares he loves him (4.3.147); although, see
Coleridge’s description of Claudio as ‘detestable’ (discussed in George Geckle, ‘Coleridge on Measure
for Measure’ (1967) 18(1) Shakespeare Quarterly 71, 72).

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Surely, their relationship goes two ways? Isabella certainly thinks so. She
expects him to be on her side against Angelo. Claudio’s attempt to sway her
judgement and exploit their sibling-ship upsets the balance of their relationship:

Sweet sister, let me live.


What sin you do to save a brother’s life,
Nature dispenses with the deed so far
That it becomes a virtue. (3.1.135–8)

Claudio and Isabella are pitted against each other, neither yielding, both hurt and
disappointed. Claudio lets Isabella down; his increasingly pitiful pleas are met
with a stinging response:

Oh, you beast!


Oh faithless coward oh dishonest wretch!
Wilt thou be made a man out of my vice? (3.1.137–9)

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

ISABELLA, MARIANA AND THE DUKE: ‘THE


IMAGE OF IT GIVES ME CONTENT ALREADY’33

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

33
3.1.243–4.
34
West, n 8 above, at 22–93.
35
Cynthia Lewis, ‘“Dark Deeds Darkly Answered”: Duke Vincentio and Judgment in Measure for
Measure’ (1983) 34(3) Shakespeare Quarterly 271, 286.
36
2.3.177.

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

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

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of law—they also highlight the menace of judicial integrity and impartiality


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

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

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proposition.54 In agreeing to the Duke’s trick, Isabella is able to subvert Angelo’s


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

54
3.1.229–42.
55
West, n 8 above, at 2.
56
In Geckle, n 32 above, at 73.
57
Arthur Quiller-Couch, ‘Introduction’ in A Quiller-Couch and J Dover Wilson (eds), Measure for
Measure (Cambridge, Cambridge University Press, 1922) xxx, cited in Geckle, n 4 above, at 164.
58
4.3.100–2.
59
5.1.235.
60
Marcia Riefer, ‘“Instruments of Some More Mightier Member”: the Construction of Female
Power in Measure for Measure’ (1984) 35(2) Shakespeare Quarterly 157, 158.
61
5.1.25, 359–67.

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The recounting of the events of the play lays the foundation for the Duke’s
‘new-found openness toward his subjects … [and willingness] to make judg-
ments on his people by listening to them and by incorporating their viewpoints
into his own otherwise sterner viewpoints’.62 So viewed, they, and in particular
Isabella’s story, provide a backdrop or explanation for the Duke’s interpretation
of the purpose of judge and judging:

His merciful judgments consistently contain a stinging element of punishment: nearly


every character is asked to enter or renew a contract that requires more commitment
than he has previously given … [as] the Duke attempts to teach his subjects the value of
mercy.63

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

62
Lewis, n 35 above, at 286.
63
Ibid.
64
Widmayer, n 39 above, at 157. See Leggatt’s rather less flattering description of Mariana as
‘obsessed with a man who wants nothing to do with her, and who beds her thinking she is someone
else’ (n 13 above, at 347).
65
The imposition of marriage as a punishment (for men) or just rewards (for women), while
problematic, was not unusual in Shakespeare’s England (Sokol and Sokol, n 15 above, at 42–3).
66
Samuel Taylor Coleridge, Shakespearean Criticism (Thomas Middleton Raysor (ed), 2nd edn,
London, Everyman’s Library, 1961), cited in Geckle, n 32 above, at 71–2. His comment presumably
only refers to those Shakespearean women deemed to be creatures of ‘passion and feeling’ and as such
is unlikely to include Isabella who he criticised as ‘too analytical and too unfeeling … tend[ing] to
lower the character of the female sex’ (ibid 73).
67
4.1.64–5; see Maria Aristodemou, ‘Law and Desire in Measure for Measure’ (1998) 9(1) Law and
Critique 117, 124.
68
Riefer, n 60 above, at 168; also Aristodemou, n 67 above, at 132.
69
4.3.99–101.
70
Juliet Stevenson, in Rutter, n 5 above, at 38.

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

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

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78 Erika Rackley

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

CONCLUSION

Sean Holmes suggests that, at the end of Measure for Measure, the audience
should not clap but rather be left ‘feeling disturbed by having seen human nature
at its worst’.83 Despite marriages aplenty, feelings of resolution are limited.84
There are too many unanswered questions: Can Angelo love Mariana? Does
Isabella return to the convent? Should Claudio forgive her and Isabella him?
What will happen to the disgraced Angelo and the Machiavellian Duke? Will
Viennese society continue to move away from the debauchery and intrigue that
has marked its past? And while the ending of the play is something to be
renegotiated nightly, the words run out: the stage, like Isabella, falls silent.
Described as one of Shakespeare’s most maligned characters,85 ‘the strength of
Isabella lies, not in her much-advertised chastity, but in her integrity and
humility. She is a woman who keeps the letter and spirit of the law in a society
which does not’.86 Her choice between herself and her brother forms the crux of
the play. It establishes Isabella as truly iconic, both in the modern sense of the
word—as someone to admire—and also in its more traditional sense, as a ‘focus
of contemplation’.87

81
Jonathan Goldberg, ‘Shakespearean Inscriptions: the Voicing of Power’ in Patricia Parker and
Geoffrey Hartman (eds), Shakespeare and the Question of Theory (London, Routledge, 1985) 130.
82
Geckle, n 4 above, at 168.
83
Sean Holmes, Director of 2003 RSC production of Measure for Measure, in ‘Measure for Measure
as a Problem Play’, available at www.rsc.org.uk/measure/teachers/genre.html.
84
Harriet Hawkins, Likenesses of Truth (Oxford, Clarendon, 1972), in Lewis, n 35 above, at 271–2.
85
Rutter, n 5 above, at 26.
86
Eileen Mackay, ‘Measure for Measure’ (1963) 14(2) Shakespeare Quarterly 109, 110.
87
Karen Armstrong, A History of God: From Abraham to the Present: the 4000 Year Quest for God
(London, Vintage, 1999) 257.

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Judging Isabella 79

Her story orientates the imagination towards the (re)imaging of previous


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

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

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III

Shakespeare and the Law of Love

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6
Shakespeare Possessed: Legal Affect
and the Time of Holding

BRADIN CORMACK*

HIS CHAPTER CONCERNS the affective dimension of holding


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

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

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84 Bradin Cormack

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

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

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Shakespeare Possessed: Legal Affect and the Time of Holding 85

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

HOLLOW TIME

As a play about the distinction between power and authority, and the way in
which each can seem both substantial and illusory in relation to the other,
Richard II (ca 1596–97) appeals repeatedly to a species of hollowness that is also
full.10 Often, the language of heaviness attaches to these moments. When the
Duchess of Gloucester takes leave of Gaunt, she speaks of her grief as one that,
like an odd tennis ball, ‘boundeth where it falls, / Not with the empty hollowness,
but weight’(1.2.58–9), a formulation that allows this grief, in opposition to the
hollowness that is empty, to be a hollowness that is weighty. The substantial
emptiness of language is at issue when Mowbray imagines the ‘heavy sentence’of
his banishment (1.3.154) as a form of linguistic estrangement. ‘Within my mouth
you have engaoled my tongue’, he tells Richard (1.3.166), adding that his
banishment must be a form of ‘speechless death’ insofar as exile forecloses ‘my
tongue’s use’ in the language he knows (1.3.172, 161). The mouth, here, is a space
that the tongue fills or becomes incapable of filling; and the same tension
between a mouth’s hollowness and a tongue’s potentially empty heaviness is
audible when Richard chastises the dying Gaunt for speaking with a ‘tongue that

7
John Donne’s ‘Satire 2’, for example, satirically portrays the law’s formalisms as being motivated
by unruly desire. On the institution of law in relation to appetite (and food), see Peter Goodrich,
‘Eating Law: Commons, Common Land, Common Law’ in Goodrich, n 6 above, 72–94. On the
symbolic legitimisation of law at the Inns, see Paul Raffield, Images and Cultures of Law in Early
Modern England: Justice and Political Power 1558–1660 (Cambridge, Cambridge University Press,
2004).
8
Heather Dubrow, ‘“They Took from Me the Use of Mine Own House”: Land Law in Shake-
speare’s Lear and Shakespeare’s Culture’ in Denis Kezar (ed), Solon and Thespis: Law and Theater in
the English Renaissance (Notre Dame, IN, University of Notre Dame Press, 2007) 81–2.
9
For an account of Antonio’s melancholy in relation to future risk, see Luke Wilson, ‘Drama and
Marine Insurance in Shakespeare’s London’ in Constance Jordan and Karen Cunningham (eds), The
Law in Shakespeare (Houndmills, Palgrave, 2007) 127–42.
10
William Shakespeare, King Richard II, Arden 3rd series, Charles Forker (ed) (London, Thomson
Learning, 2002). All parenthetical citations to the play are to this edition.

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86 Bradin Cormack

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

11
For law and constitutional crisis in Richard II, see JH Hexter, ‘Property, Monopoly, and
Shakespeare’s Richard II’ in Perez Zagorin (ed), Culture and Politics from Puritanism to the Enlighten-
ment (Berkeley, CA University of California Press, 1980) 1–24; Dennis R Klinck, ‘Shakespeare’s
Richard II as Landlord and Wasting Tenant’ (1998) 61 College Literature 21; William O Scott, ‘“Like to
a Tenement”: Landholding, Leasing, and Inheritance in Richard II’ in Jordan and Cunningham, n 9
above, at 58–72.
12
Sir Edward Coke, The First Part of the Institutes (London, 1628) sig 17r.

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Shakespeare Possessed: Legal Affect and the Time of Holding 87

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

For nothing hath begot my something grief,


Or something hath the nothing that I grieve.
’Tis in reversion that I do possess—
But what it is, that is not yet known what,
I cannot name. ’Tis nameless woe, I wot. (2.2.36–40)

A reversion is the interest in a hereditament, especially land, which a grantor


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

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

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88 Bradin Cormack

difference in degree subtending a difference in substance, making the thing and


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

14
John Cowell, The Interpreter (Cambridge, 1607) 3K4v.

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

HOLDING TIME

York’s (and the Queen’s) sense that possessing English land means bargaining
with the substance of time is true in the most basic legal sense. According to the
common law system of tenure (Lat tenere, ‘to hold’), all interests in land are
ultimately held from the Crown. The most valuable interest that can be held is an
estate in the land, the estate being a temporal interest that is sometimes less and
sometimes more. Edmund Plowden, in his report of Walsingham’s Case (1571),
nicely summarises the point that legal possession of a material thing is, in the
end, possession of its dematerialised temporal form:

[B]ut the land itself is one thing, and the estate in the land is another thing, for an estate
in the land is a time in the land, or land for a time, and there are diversities of estates,
which are no more than diversities of time, for he who has a fee-simple in land has a
time in the land without end, or the land for time without end . . . and he who has an
estate in land for life has not time in it longer than for his own life, and so for him who
has an estate in land for the life of another, or for years.15

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

15
Edmund Plowden, The Commentaries or Reports [1571, 1579] (London, Brooke, 1816) vol II,
555. I have regularised capitalisation.

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

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

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Shakespeare Possessed: Legal Affect and the Time of Holding 91

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

The chief or principal thing is the hereditament from whence it springs . . . if a


reversion of land, then the land, for that is the foundation [foundacion] of it; the other
is no more than the degree of it . . . and the substance [substaunce] of which it consists
is the thing itself [chose mesme] from whence it springs, for a reversion of land and the
land in reversion is all one, so that land is the substance.23

Accordingly, so the argument went, the habendum clause was not repugnant, but
could instead be read as identifying, as the true content of the reversion granted
in the premises, the substance already held in the reversion, albeit according to its
degree:

the reversion of the land, and the land itself, are not two distinct things [choses distinct,
et severall], as before hath been alledged, but they are one same thing in substance [en
substance]. And then, when the reversion of the land is granted, habendum the land
itself, this explains what was the meaning of the party in the word (reversion), and is
pursuant enough to the grant.24

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

20
Ibid 152.
21
Ibid 153.
22
Ibid.
23
Ibid.
24
Ibid 155.

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92 Bradin Cormack

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

STRANGE LOVE

Shakespeare’s sonnets test in another register the question taken up in Common


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

25
Richard II, n 10 above, at 465, note to lines 47–8.

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Shakespeare Possessed: Legal Affect and the Time of Holding 93

capable of containing the beloved’s form (or, alternatively, the speaker’s form) for
the future.26 The poems describe and invent this erotic continuity in part by
deploying a vocabulary from land law. That language, and especially the language
of future interests, provided Shakespeare with what I would call a poetics of
possession, a way to meditate on the power of form to bring substances (whether
person and land or person and person) into relation across time. To unpack the
argument that a sonnet might thus effect the continuity of substance, I turn now
to two poems, which add to my lexicon three further legal categories—entail,
remainder and use—that, like the reversion, are charged by the play of substance
in time.
Sonnet 74 asserts that the poem’s addressee—the young man, but by implica-
tion the general reader as well—need not despair at the idea of the poet’s death,
but instead should be ‘contented’ insofar as the poem will pass on the poet’s
spirit, this as a content that can fill the beloved and so make him ‘contented’ in
the sense of happy:

But be contented when that fell arrest


Without all bail shall carry me away;
My life hath in this line some interest,
Which for memorial still with thee shall stay.
When thou reviewest this, thou doest review
The very part was consecrate to thee.
The earth can have but earth, which is his due;
My spirit is thine, the better part of me,
So then thou hast but lost the dregs of life,
The prey of worms, my body being dead,
The coward conquest of a wretch’s knife,
Too base of thee to be rememberèd.
The worth of that, is that which it contains,
And that is this, and this with thee remains.

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

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

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94 Bradin Cormack

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

28
On entails, see Baker, n 13 above, at 311–12, 318–21.
29
Ibid 319; Simpson, n 13 above, at 126–37, 208–12. Baker cites the phrase ‘juridical monster’
from SFC Milsom, Historical Foundations of the Common Law (2nd edn, Toronto, Butterworths, 1981)
177.

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Shakespeare Possessed: Legal Affect and the Time of Holding 95

unbarrable entail’.30 But in 1585, in the aptly named Lovelace v Lovelace, the
courts decided that to be valid a remainder must vest ‘in good time—that is,
before the determination (or eo instanti with the determination)’ of the first life
interest, this being the so-called ‘particular vested estate’ on which the contingent
remainders depended.31 In a grant of contingent life interests in the male line, for
example, only one remainder in the sequence would be valid—usually that of A’s
son, but, where the son predeceased the grandson, that of A’s grandson. No
forever future, then, just a limited one.
Sonnet 74 represents poetic immortality by playing with the fantasy of the
perpetual freehold. Subtending the poem’s representation of the poet’s life having
an interest in his line is a grant of this kind: A grants possession to B for life,
remainder to C, with possession passing to the beloved in his capacity as
remainderman. In this way, the poem argues, and here is the second part of the
legal puzzle, the original holder of the life interest will in part be passed on, too.
In colloquial terms, the poet’s spirit survives; in the legal context, and according
to the play of forms that make up English possession, the possessor is passed on
to the next possessor precisely in the form of possessor. It is in this sense, indeed,
that the young man can be imagined as ‘contented’ upon coming into possession:
holding a poetic line, like holding a future interest, is a waiting that ends when
one content is filled out by another, as when someone with an only future interest
takes possession, becomes possessor, or when the poem’s beloved reader is filled
by the poet’s form (or, equally, when the general reader is filled by the extravagant
beauty that, elsewhere in the sequence, is the poem’s chief content).
In sum, Shakespeare’s lyric pursues the legal fantasy of an affective attach-
ment’s becoming continuous in time. Sonnet 87, in turn, responds to that fantasy
by meditating on strangeness as a category that disrupts possession’s intimacies:

Farewell, thou art too dear for my possessing,


And like enough thou know’st thy estimate.
The charter of thy worth gives thee releasing:
My bonds in thee are all determinate.
For how do I hold thee but by thy granting,
And for that riches where is my deserving?
The cause of this fair gift in me is wanting,
And so my patent back again is swerving.
Thyself thou gav’st, thy own worth then not knowing,
Or me to whom thou gav’st it, else mistaking;
So thy great gift, upon misprision growing,
Comes home again, on better judgement making.
Thus have I had thee as a dream doth flatter:
In sleep a king, but waking no such matter.

30
Simpson, n 13 above, at 215.
31
Ibid.

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

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

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transmuted into full legal possession—the statute was said to execute the use—
and seisin came to be vested in the purchaser, without the fuss of a common law
conveyance.34
Good consideration or cause was essential, however, for a use so to pass
(without conveyance of possession). A passage in Christopher St German’s Doctor
and Student takes up this point, in language I find suggestive for the dynamic
whereby lovers grant to each other (as in Sonnet 87) the use of what they possess
in themselves:

DOCTOR: And what if a man, being seised of land in fee, grant to another of his mere
motion, without bargain or recompense, that he from thenceforth shall be seised to the
use of the other, is not that grant good.

STUDENT: I suppose that it is not good, for as I take the law, a man cannot commence
an use but by livery of seisin, or upon a bargain, or some other recompense.35

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

34
Ibid 346–8; also Baker, n 13 above, at 287.
35
Cited, in modern spelling, from Christopher St German, Doctor and Student, Selden Society 91
(TFT Plucknett and JL Barton (eds), London, Selden Society, 1974) 225.
36
Simpson, n 13 above, at 177; Baker, n 13 above, at 287.
37
Simpson, n 32 above, at 363–7. Simpson notes the connection between ‘consideration’ in such
conveyances and the notion that marriage ‘could count as a cause of a gift’, as exemplified in the writ
Causa Matrimonii Praelocuti (364).
38
Simpson, n 32 above, at 434.
39
Plowden, n 15 above, vol 1, at 300.

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98 Bradin Cormack

consideration.40 This argument did nothing, however, to dislodge the argument


against friendship (with which plaintiff ’s counsel unsuccessfully attempted to
associate brotherliness):

For if a man grants to J[ohn] S[tyles] that in consideration of his long acquaintance, or
of his great familiarity with him [graunde familiaritie ove lui], or of their being scholars
together in their youth, or upon such like considerations, he will stand seized of his land
to his use, this will not change the use, for such considerations are not looked upon in
the law as worthy [digne] to raise a use, because they don’t import any value or
recompence [ne sount de value, ou recompence].41

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

40
Ibid 306. Brothers are said to be ‘per nature ioyne en amour’.
41
Ibid 302. I have adapted the 1816 translation.
42
On law’s ambivalent relation to friendship, see Peter Goodrich, ‘Lawful Manhood and Other
Juristic Performances’ in Erica Sheen and Lorna Hutson (eds), Literature, Politics and Law in
Renaissance England (Houndmills, Palgrave, 2005) 23–49. On love’s standing, see Peter Goodrich,
‘Does Love Have Standing’ in The Laws of Love: a Brief Historical and Practical Manual (Houndmills,
Palgrave, 2006) 195–216.

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

SHYLOCK’S COUPLET

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

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100 Bradin Cormack

also eloquent because, in Shakespeare’s formulation, Shylock’s defeat becomes his


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

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7
The Tragedy of Law in Shakespearean
Romance

KATRIN TRÜSTEDT*

HE DIFFICULTY OF categorising Shakespeare’s late plays is well


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

FROM THE TRAGEDY OF VIOLENCE TO THE


COMEDY OF LAW

There exists in philosophy a tradition of thinking about the movement from


tragedy to comedy, perhaps most notably in the work of Hegel, that is illuminat-
ing with regard to Shakespeare’s romances. This movement is often linked to the
development of modernity, the process of secularisation, the disenchantment of
culture, and the formation of modern subjectivity. One way of thinking this
movement is as a shift from violence (ie, justice as revenge) to law. Aeschylus’

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

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102 Katrin Trüstedt

Oresteia, one of ‘Hegel’s paradigms of tragic drama’2 can be considered a


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

2
Michael Silk, ‘Shakespeare and Greek Tragedy: Strange Relationship’ in Charles Martindale and
AB Taylor (eds), Shakespeare and the Classics (Cambridge, Cambridge University Press, 2004) 244.
3
Christopher Collard, ‘Introduction’ in Aeschylus, Oresteia (Christopher Collard (ed), Oxford,
Oxford University Press, 2002) xvi.
4
Walter Benjamin, ‘Zur Kritik der Gewalt’ in R Tiedemann and H Schweppenhäuser with Th W
Adorno and G Scholem (eds), Gesammelte Schriften (Frankfurt am Maine, Suhrkamp, 1977) vol II(1),
179–203.

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The Tragedy of Law in Shakespearean Romance 103

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

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

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104 Katrin Trüstedt

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

11
Ibid.
12
Ibid.
13
Ibid.

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The Tragedy of Law in Shakespearean Romance 105

THE TRAGEDY OF LAW

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

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

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106 Katrin Trüstedt

Yet in Coriolanus, the violent ritual and the element of myth (or theatricality) is
irreducible to this very process of foundation. That is to say, the very act which is
supposed to overcome the stage of mythical violence already partakes of the
means and the structure of the mythical. The foundation itself remains mythical
and violent, even if only in part. In this regard, as Stanley Cavell has pointed out,
Coriolanus turns out to be

a play of sacrifice; as it happens, of a failed sacrifice. And a feast-sacrifice, whether in


Christian, pre-Christian, Nietzschean, or Freudian terms, is a matter of the founding
and the preserving of a community. A community is thus identified as those who
partake of the same body, of a common victim. This strikes Coriolanus as our being
caught in a circle of mutual partaking, incorporating one another.17

In the end, the foundation of a lawful community rests on a common sort of


cannibalism that is linked in an uncanny manner to the theatre as a place of
rituality, and to what René Girard calls with regard to Julius Caesar ‘the “founda-
tional violence” of theatre’.18
In Hobbes’ later description of the state of nature and its relation to established
society, fictionality and theatrical representation play an important, if hidden,
role. This can be detected in the fictional quality of the state of nature, in the
myth of the Leviathan, and in the sovereign’s dependence on theatrical rituals for
the maintenance of his sovereignty. But whereas Hobbes still tries to exclude
these fictional or theatrical elements from the realm of the political, precisely
because of their destabilising proximity, the relation of the foundation of
community to magic, ritual and theatre, as the deferred successors to myth and
religion, becomes apparent in Coriolanus, at the same time as it is revealed as
precarious:

[T]he play celebrates, or aspires to, the same fact as the ritual [eg, the Eucharist] does,
say the condition of community . . . When the sharing of a sacrifice is held on religious
ground, the ritual itself assures its effectiveness. When it is shifted to aesthetic ground,
in a theater, there is no such preexisting assurance.19

Here Cavell describes the shift of ritual’s function from religion to theatre as
leading to a new and unstable form of ‘ritual’.
Shakespeare’s romances, written after Coriolanus, deploy this unstable form of
rituality and theatricality in an even more decisive manner. As pastoral romances,
they touch on myth and fictional conventions more overtly than the quasi-
realistic history plays, for example. Brian C Lockey argues that this is part of the
reason why the genre of romance has generally not been taken seriously in terms

17
Stanley Cavell, Disowning Knowledge in Seven Plays of Shakespeare (updated edn, Cambridge,
Cambridge University Press, 2004) 165.
18
Girard, n 16 above, at 210.
19
Cavell, n 17 above, at 168.

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The Tragedy of Law in Shakespearean Romance 107

of questions of law or politics. Lockey, in contrast, illustrates ‘how a form


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

MAGIC

The Tempest begins with a state of emergency, or exception, that precedes the act
of foundation or law-positing. The play starts at sea, rather than on a (national)
territory, and it shows a shipwreck, disjointing norms (like social hierarchies) as
well as the relation of nature and government, all within the title-giving event of
change, the tempest: ‘[W]hat cares these roarers for the name of king?’—‘we split,
we split!’(1.1.16–17; 60).23 The tempest, shown belatedly as being not a natural
event but rather artificially staged, creates a zone of exception, an outside of
normal time (Tempest refers to tempus) which persists throughout the play. It is
within this state of exception that Prospero’s special kind of sovereignty is

20
Brian C Lockey, Law and Empire in English Renaissance Literature (Cambridge, Cambridge
University Press, 2004) 7.
21
Ibid 161.
22
Ibid 159.
23
William Shakespeare, The Tempest, The Oxford Shakespeare (Stephen Orgel (ed), Oxford,
Oxford University Press, 1998).

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108 Katrin Trüstedt

established. Indeed, his control of the island corresponds, as Stephen Greenblatt


has pointed out, to the installation of martial law.24
Prospero appears to respond to the political plot that precedes the action of the
play (that is, his usurpation by his brother) by getting Antonio and his compan-
ions under his control. This situation is reminiscent of a revenge model, not least
that of the Oresteia, but the play ultimately does not carry this model out. By
maintaining the state of exception—scattering the stranded ‘visitors’ over the
island and spreading confusion among them to a point where ‘men hang and
drown / Their proper selves’ (3.3.59–60)—regular law is suspended. The primal
usurpation scene, in which Prospero is described as having been weak (‘rapt in
secret studies’ (1.2.77)) and consequently ‘preparing’ his brother’s eventual
seizure of power, is replaced with a situation in which Prospero’s power allows
him to be presented as the ideal sovereign. He now appears as the sovereign who
(in the words of Carl Schmitt) not only decides the state of exception, but also
creates and maintains it. Prospero establishes a kind of martial law as lawless law.
His power is inscribed onto the life of the people subjected to him, as well as onto
the nature that surrounds them, as seen in the opening storm. Schmitt, again,
links the question of natural law to the question of sovereignty through the
power to decide over the state of exception.25 But it is no military force that
guarantees Prospero’s power; rather (to refer once again to Stephen Greenblatt)
his own magic. In other words, the exact same source that had previously
weakened Prospero as a sovereign, his ‘secret studies’, now functions as the source
of his authority.

And Prospero the prime duke, being so reputed


In dignity, and for the liberal arts
Without a parallel; those being all my study,
The government I cast upon my brother,
And to my state grew stranger, being transported
And rapt in secret studies. (1.2.72–90)

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

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

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The Tragedy of Law in Shakespearean Romance 109

Similarly, in Shakespeare’s The Winter’s Tale, Leontes exclaims at the sight of


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

THE NATURE OF LAW

The Tempest stages a complicated relation, indeed a contamination, between law


and nature. It thus touches on certain implications of the ‘nature of law’.27
Whereas tragedies such as King Lear and histories such as Coriolanus expose the
aporias of founding law in nature (King Lear) or of overcoming nature by means
of law (Coriolanus), the romances expose the inseparability and incompatibility
of law and nature head-on. What is more, they try to envisage a way of
negotiating, acknowledging and accepting this inseparability and incompatibility.

27
These implications touch upon recent debates about the question of life and politics, human
and animal life, creature and sovereign—discourses that have been shaped by Michel Foucault,
Giorgio Agamben, Eric Santner, and others.

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110 Katrin Trüstedt

That is, instead of overcoming nature by means of law or grounding law in


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

GONZALO’S PASTORAL UTOPIA

The state of exception that corresponds to a suspension of law fosters and


nurtures imaginations about the founding of a community that could follow it.
Stranded on a seemingly wild island, still in the grip of the destabilising storm,
the ambivalent utopia of a natural community emerges for the people of the
court of Milan as a natural state in the putatively total absence of law and
civilisation:

GONZALO: I’ th’ commonwealth I would by contraries


Execute all things, for no kind of traffic
Would I admit; no name of magistrate;
Letters should not be known; riches, poverty,
And use of service, none; contract, succession,
Bourn, bound of land, tilth, vineyard, none; …

28
Lockey, n 20 above, at 37.
29
Ibid 40.

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The Tragedy of Law in Shakespearean Romance 111

No occupation, all men idle, all,


And women too, but innocent and pure;
No sovereignty;–

SEBASTIAN: Yet he would be king on’t.

ANTONIO: The latter end of his commonwealth forgets the beginning. (2.1.141–54)

The utopia described in this passage can be read both as the logical result of and
a defence against the state of exception: the fictional establishment of a new
lawless law. On first sight this utopia seems to consist of a natural condition, one
that is far from either Hobbes’s or Coriolanus’s conception of nature as evil.30 It
more closely resembles Montaigne’s ‘jusnaturalistic’ view of nature in his essay
‘On Cannibals’:

Montaigne’s essay … introduces an anticipation of the ideal state of nature on which


the philosophical foundation of the Enlightenment will rest . . . [T]he utopian state of
natural innocence proposed here implies a natural primary rule capable of peace and
happiness, with no constriction of law or social institutions . . . This is far away from
Hobbes’ meaning of jusnaturalism.31

In the setting of the play itself, however, Gonzalo’s neglected sovereignty is far
from being ‘with no constriction of law or social institutions’. Indeed, it recalls
Prospero’s own domination of the island, even to the point of controlling his own
daughter’s intimate life, which Prospero demands (or rather, governs) to be
‘innocent and pure’. Paradoxically, the putatively innocent form of nature
requires a governing force that cannot be free of violence.
Antonio, the Machiavellian and thus very modern villain of the play, points out
the inherent contradiction in Gonzalo’s utopia. Gonzalo as fictional king
responds to the state of exception, a lawless state that nevertheless depends on the
law as its final source: the sovereign who decides upon this state. In his attempt to
establish and preserve his utopia, and thus his sovereignty, Gonzalo depends on
precisely that lawful power which his utopia excludes. His sovereignty is already
inscribed upon the virgin look of nature.
The double plot structure of the pastoral can be seen at work in this passage:
the court people from the city project their utopias onto ‘country life’, ie, that
which is stripped of everything that defines their ordinary life. In this way, the
‘nature’ of Gonzalo’s utopia is the result of a process of ‘putting the complex into

30
‘These words [Gonzalo’s] depict an original state of imaginary natural rule, a deconstructed
society such as Cade [in Henry VI] seems to aim at with violent means. The abolition of magistrates,
legal practices, property, money, work, sovereignty is emphatically connected with a positive Nature
and a primitive innocence, excluding the homo homini lupus of Hobbes’ Leviathan’: Guiseppina
Restivo, ‘Law and Nature in Shakespeare’ in Daniela Carpi (ed), Shakespeare and the Law (Ravenna,
Longo, 2003) 77.
31
Ibid 86.

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112 Katrin Trüstedt

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

THE MASQUE

Gonzalo’s utopia longs for a nature prior to law and civilisation, prior even to
agriculture. It is a different notion of nature that affects the logic of the play as a
whole, however. The masque opens up an image of natural life that (unlike
Gonzalo’s supposedly pastoral pre-lawful purity) does expose the signature of law
in nature. The staged masque is a commemoration of the betrothal staged by
Prospero, a celebration of nature and fertility. Yet it is also, in the goddess’s words,
‘A contract of true love to celebrate’ (4.1.84), demonstrating how law is inscribed
into sexuality: ‘Some wanton charm upon this man and maid, / Whose vows are,
that no bed-right shall be paid / Till Hymen’s torch be lighted’. (4.1.95–7) As
Jonathan Bate comments:

The land described in the masque is husbanded, not in a state of nature. It is under
Ceres, patroness of agriculture . . . The language here is that of Ovid’s Ceres . . . It is
because she presides over the period immediately after the Golden Age that Ceres also
‘first made lawes’ (Golding, v. 436, translating Ovid’s ‘prima dedit leges’). In the Golden
Age, when there was no law and all things were held in common, there could be free
love (Montaigne’s cannibals share their women without jealousy); in the Silver Age, love
must be bounded within the laws of marriage.34

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

32
William Empson, Some Versions of Pastoral (New York, New Directions, 1974) 53.
33
Ibid 10.
34
Jonathan Bate, Shakespeare and Ovid (Oxford, Oxford University Press, 1993) 257–8.
35
Ibid 259.
36
Cavell, n 17 above, at 217.

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The Tragedy of Law in Shakespearean Romance 113

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

CREATURE CALIBAN

A common reading of the history of Prospero and Caliban describes it as a


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

37
Stanley Cavell, ‘The Conversation of Justice’ in Conditions Handsome and Unhandsome: the
Constitution of Emersonian Perfectionism (Chicago, University of Chicago Press, 1988) 104.

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114 Katrin Trüstedt

and visible. It is particularly within the character of Caliban that the splitting,
separating and fractioning of nature and art, life and law, takes place. Caliban
represents what is non-human within the realm of the human. Prospero
describes him in the course of legitimising his claim for the island:

Then was this island—


Save for the son that she did litter here,
A freckled whelp, hag-born—not honoured with
A human shape. (1.2.281–5)

While Caliban is, on the one hand, part of the human species (except for him the
island was not inhibited by humans), within this inclusion he is, on the other
hand, excluded as being animal (‘freckled whelp’) and supernatural (‘hag-born’).
Under Prospero’s rule, he also becomes a slave, another exclusion within an
inclusion (ie, within the household). It is through the maintenance of these terms
of natural/animal, supernatural and slave that Prospero manages throughout the
play to avoid recognising Caliban as taking part in his own human nature: ‘Thou
earth, thou … thou tortoise’ (1.2.314–16), ‘Thou poisonous slave, got by the devil
himself ’. (1.2.319) In neglecting Caliban’s human nature and thus drawing the
distinction between human and non-human, Prospero is, in Agamben’s terms,
producing the human: he is ‘establishing a zone of indifference … within which
… the articulation between human and animal, man and non-man, speaking
being and living being, must take place’.38
Julia Lupton outlines the traces of the Creature that is being epitomised in
Caliban by taking recourse to Christian mythology. She explicates the drama of
exclusion and inclusion implied therein:

In the epochs of Christian history, the creature lies before or outside the law . . . The
floating world of The Tempest reaches back to the epoch of the Flood, ante legem, in
which unredeemed Creation suffers a sea change on the road to law and grace. Like the
Flood, the tempest creates a state of emergency in which primitive instincts emerge in a
clarified form, leading to the reassertion of positive law and the reinclusion of the
sovereign within its normative order.39 (emphasis added)

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

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

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The Tragedy of Law in Shakespearean Romance 115

By maintaining Caliban as creature, Shakespeare manages to isolate within the category


of the human . . . a permanent state of emergency.40

The theme of monstrousness is made explicit in the play’s attention to Caliban’s


bodily presence and its exposure to Prospero’s power. Prospero’s grip on Caliban
and Caliban’s resistance to this control are inscribed upon the bodily life that
functions as the site of this inscription: ‘they [Prospero’s spirits]’ll nor pinch,
unless he [Prospero] bid ‘em … but / For every trifle are they set upon me’.
(2.2.4–8) At the same time, however, Caliban’s vulnerability to magic and miracle
in the sense of exception (the effects of Prospero’s power are ‘set upon’ his body),
is also the site of miracle as a productive process beyond the intention of the
sovereign. As Eric Santner describes in his book On Creaturely Life:

[I]t is not the mere fact of being in a relation of subject to sovereign that generates
creaturely ‘non-nature’, but the exposure to an ‘outlaw’ dimension of law internal to
sovereign authority. The state of exception/emergency is that aspect of law that marks a
threshold of undecidability proper to the functioning of law/sovereign authority: the
‘master’s discourse’ in the state of exception marks a sanctioned suspension of law, an
outside of law included within the law. Creaturely life emerges precisely at such
impossible thresholds.41

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

40
Ibid 178.
41
Eric Santner, On Creaturely Life (Chicago, University of Chicago Press, 2006) 29.
42
For example, the formative effect of sovereign biopolitics on this creature becomes evident in
Caliban’s attempt to rape Miranda.

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116 Katrin Trüstedt

of play and wonder, in the sense of an unexpected momentum beyond a law


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

THE COMEDY OF FORGIVENESS

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

I do forgive
Thy rankest fault—all of them—and require
My dukedom of thee, which perforce I know
Thou must restore. (5.1.131–4)

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

43
See, exemplarily, Stephen Orgel, ‘Introduction’ in The Tempest, n 23 above.

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The Tragedy of Law in Shakespearean Romance 117

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

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

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8
Law and its Subversion in Romeo and
Juliet

DANIELA CARPI

S WITH MANY Elizabethan works, Romeo and Juliet displays


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

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120 Daniela Carpi

harmonious balance of the body (the balancing of the senses) is destabilised by


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

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

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Law and its Subversion in Romeo and Juliet 121

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

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

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122 Daniela Carpi

The theoretical interaction of law and literature implies studying texts and
language in order to disclose their ethical, political and cultural significance; it
aims at discovering new possibilities, by analysing how law and literature are
interrelated in terms of linguistic and cultural features. Hence, it seeks to
investigate what happens when we disclose the hidden potentialities of canonical
disciplines.7 Peter Brooks observes that:

Tragedy is always the story of the discovery of the law—perhaps the Law—and in this
manner it makes clear, maybe more than any other genre, that literature’s exploration of
the individual’s destiny always encounters those systems of constraint, those basic
interdictions, that both frustrate individual endeavors and constitute irrefutable ele-
ments of the definition of the human condition.8

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

And I, for winking at your discords too, / Have lost a brace of kinsmen: all are
punished.9

Where power (the Prince) and justice are missing, the consequence is a general
damage. As the restoration of order takes place under the sign of fate, instead of

7
See Gary Minda, ‘Law and Literature at Century’s End’ (1997) 9(2) Cardozo Studies in Law and
Literature 245.
8
Peter Brooks and Paul Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (New
Haven, Yale University Press, 1996) 15.
9
Romeo and Juliet, n 1 above, 5.3.294–5.

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Law and its Subversion in Romeo and Juliet 123

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

10
See EH.Kantorowicz, The King’s Two Bodies (Princeton, Princeton University Press, 1957).
11
See J Rawls, A Theory of Justice (Cambridge, MA, Harvard University Press, 1971); HG
Gadamer, Truth and Method (London, Sheed and Ward, 1975).

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124 Daniela Carpi

the survivor as a tie of honour); instead, each transgression becomes an occasion


for recalling the official and codified values. Mercutio represents a medieval-like
ethics of resentment, while the Prince and Romeo (in his uncertainty about what
behaviour would be best) embody an institutional kind of punishment. The
individual must limit his/her resentment so that a more general good may arise.
Such a fluctuation between democracy and absolutism, between justice and its
interpretation, is also evident in the treatment of marriage pacts. Subverting the
blind submission of the daughter to her father’s will and going against familiar
canons, Juliet’s free choice represents the other essential form of mutiny embed-
ded within the text. However, also in this case the work does not present a
uniform development, for at the beginning Juliet’s father seems to accept his
daughter’s will. In fact, he encourages Paris by telling him: ‘But woo her, gentle
Paris, get her heart: / My will to her consent is but a part; / And she agreed, within
her scope of choice / Lies my consent and fair according voice’. (1.2.17–21)
Like the Prince, Capulet seems to refuse to exercise absolute power over his
daughter, and to be willing to guarantee her the possibility of freely choosing
whether to adhere to his decision or not. However, later on, Capulet refers to his
‘decree’ that has to be ‘delivered’ to Juliet, and the term ‘decree’ does not allow for
any freedom of choice by Juliet; in fact, on Juliet’s opposition, Capulet curses her
and threatens her with the direst punishments, referring in particular to the
contemporary condition of women, who were totally subjected to paternal
authority:

hang, beg, starve, die in the streets, / For, by my soul, I’ll ne’er acknowledge thee, / Nor
what is mine shall never do thee good. (3.5.193–5)

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

12
Barbara B Diefendorf, ‘Family Culture, Renaissance Culture’ (1987) 40(4) Renaissance Quarterly
661, 669.

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Law and its Subversion in Romeo and Juliet 125

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

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126 Daniela Carpi

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

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

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Law and its Subversion in Romeo and Juliet 127

shift from the ethical marriage based on canons of seriousness requested by


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

Am I the master here or you? Go to, / You’ll not endure him? God shall mend my soul!
/ You’ll make a mutiny among my guests.

These words were preceded by milder warnings:

Content thee, gentle coz, let him alone, / ‘A bears him like a portly gentleman.
(1.5.74–5)

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

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

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128 Daniela Carpi

authoritarian way, if he wants to maintain order. An archaic concept of honour


counters hierarchy, but finally succumbs to it. This is precisely the kind of
absolute authority on whose implementation the Prince hesitates throughout the
entire dramatic action.
In a commercial era, such as the Renaissance, during which the mercantile
class is in the ascendant, wealth is largely constituted by obligations of an
economic, social or prestigious kind. Hence, the individual interest, aimed at the
attainment of some promised advantages, has to be protected. The social interest
in the stability of pacts becomes of primary importance.
In Romeo and Juliet, there is also another contraposition: that between a
private pact (based on a Roman kind of civil law, which recognises full juridical
results to the agreements made in order to produce an obligation, and which will
later become the Anglo-Saxon common law) and the pact endorsed by the
religious authority (sacramentum). It is a contraposition between juridical norms
and canonical code. Hence, Juliet is bound by both pacts to different contracts,
both of which are legally valid.
The epochal passage, made evident by the forms of justice administration, is
also revealed in the text by the coexistence between a ‘promise by parole’ (entirely
dependent on the will of the contractor, since the law had erased the private
exercise of one’s rights) and a ‘promise by deed’ (based on a contract and on a
religious ceremony). Juliet is gripped in the vice of fidelity to two forms of
contract, torn between an agreement stricto iure and one based on bona fide
(which is the one to which she is forced by her father):

Because canon law declared marriage a sacrament dependent only upon the consent of
the man and woman to be wed, secret marriages—marriages without the presence of
parents or other witnesses and even without priests—were legal.19

However, it must be acknowledged that English courts of law, while recognising


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

19
Diefendorf, n 12 above, at 661–81.
20
Roscoe Pound, An Introduction to the Philosophy of Law (New Haven, Yale University Press, 1959
[1954]) 145.

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Law and its Subversion in Romeo and Juliet 129

promise. Hence, the validity of marriage came to be based on the contractors’ free
will, an element which was definitely not present in the pact between Juliet and
Paris. Once again, the text incorporates two completely different approaches: the
father’s absolute authority, and the daughter’s free will. According to the medieval
canons, the latter was an element of sedition, but in the modern authorities it is
an inalienable right.21
The law, however, is constituted by a constant dialectic between contrasting
situations, which mirror the relation between spirit and nature. According to
Roscoe Pound, law must be stable but cannot stand still. As far as the legal reality
is concerned, there is a need to piece together and to overcome the antinomy
between the stability of law, seen as society’s rational, firm and fixed order, and its
dynamism, mirroring the incessant transformations of needs, of collective and
individual interests, of moral requirements and political problems.22 The law,
while fulfilling the social need for stability, must also come to terms with the
constantly changing requirements of society.
Such elements are perfectly noticeable in Romeo and Juliet. If, on the one hand,
the medieval concept of private revenge is still present, on the other hand, its
results and historical tranformations are questioned. This questioning reveals a
conception of law as opus operans rather than opus operatum. The criteria of
marriage pacts are placed in the context of an incessant historical development.
They are presented as a process in fieri, as a transformation which is still taking
place and which reflects an epochal evolution.
Within the text, the two fundamental elements of separation and subversion
(the subjects against their Prince, the daughter against her father) are echoed by a
growing proliferation of interior signs of mutiny: see, for example, the word play
between the terms ‘word’ and ‘name’ at the start of Act 2.
‘O Romeo, Romeo! Wherefore art thou Romeo? / Deny thy father and refuse
thy name’. Romeo must ‘kill’ his old identity and ‘give birth’ to another one in this
new communion. Hence, he must separate himself from himself by refusing his
own name. Here, the concept of name seems to mirror the logos of the Bible:
giving a name, or re-giving a name, means re-creating, shaping anew. After all,
notes Juliet, it is only the name which is her enemy, not the essence of the
individual. ‘‘Tis but thy name that is my enemy’ / . . . ‘What’s in a name?’. The
name is merely the external cover of the object, which would still be the same

21
‘[S]erious challenges were already developing to the traditional authority of husbands in the
patriarchal family. Moreover, the … demand for the separation of religion from state control
accelerated the process by which the divine sanctions for the social hierarchy were undermined. Once
they were gone, the way was open, first for a contract theory of the state, and then, by logical analogy,
for a contract theory of the family’: Stone, n. 17 above, at 340. According to Stone, the most important
transformation of the family structure was the gradual freedom from paternal authority, which was
made possible by the growing power of the central government. As the state and tribunals granted
ever-increasing protection to wives and children, a relationship of subordination towards the husband
and the father became increasingly unnecessary.
22
See Widar Cesarini Sforza, ‘Introduzione’ in Roscoe Pound, Introduzione alla filosofia del diritto
(Firenze, Sansoni, 1963) xvii.

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130 Daniela Carpi

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

Away from light steals home my heavy son, / And private in his chamber pens himself,
/ Shuts up his windows, locks fair daylight out, / And makes himself an artificial night.
(1.1.136–40)

The shapes of objects are destabilised under the urgency of love:

O heavy lightness, serious vanity, / Misshapen chaos of well-seeming forms. (1.1.178–9)

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

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Law and its Subversion in Romeo and Juliet 131

poisonous: ‘Within the infant rind of this weak flower / Poison hath residence,
and medicine power’ (2.3.25–6). The Friar, in fact, describes the flower, bearer of
the sleep of death, as apparently innocuous but inherently poisonous. Hence,
there is a split within the senses themselves: taste and smell:

For this, being smelt, with that part cheers each part; / Being tasted, stays all senses with
the heart. / Two such opposed kings encamp them still / In man as well as herbs / Grace
and rude will. (2.3.27–30)

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

Thou art uproused with some distemperature, / Or if not so, then here I hit it right, /
Our Romeo hath not been in bed tonight. (3.2.40–3)

However, such social subversion may pave the way to a new harmony, a new pax:
‘I have been feasting with mine enemy’. (2.2.49)
In this constant discomposure of the concept of law we risk losing its semantic
connotation. Even Peter, the servant, who acts in the text as ‘comic relief ’, states:

I warrant you I dare draw as soon as another man, if I see occasion in a good quarrel,
and the law on my side. (2.4.153)

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

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132 Daniela Carpi

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

I shall be deaf to pleading and excuses . . . attend our will. (3.1.190–5)

In fact, the Prince is trying to mediate between a strong authoritarian form of


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

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Law and its Subversion in Romeo and Juliet 133

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

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IV

Justice and the Royal Prerogative

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

CAROLYN SALE

INCE THE LATE eighteenth century, it has been regularly noted


by scholars of Shakespeare and lawyers interested in Shakespeare’s
use of law that the grave-digging Clown of Hamlet alludes to the
judicial arguments in Hales v Petit (1562), a property suit involving a suicide, in
his lines about water coming to a man and drowning him.1 Mid-twentieth
century scholars also noted Hamlet’s allusion to the late sixteenth century’s most
famous murder trial, Saunders’ Case (1575).2 Much of the debate around these
allusions has centred on the question of whether we are to believe that Shake-
speare, like a character in an early unattributed play of the 1590s, had ‘plodded in
Plowden’ (and possibly spent some or all of his ‘lost years’ as a lawyer’s ‘clerk’) or
whether the cases were sufficiently famous that Shakespeare could have known of
them through street talk.3 My intention is not to answer the question of how the
legal matter enters the play, but rather to show that Hamlet’s engagement with
cases reported by Edmund Plowden in his seminal legal text The Commentaries
(1571) is both more subtle and more thoroughgoing than attention to the
allusions to Hales v Petit and Saunders’ Case alone may suggest. The play is
infused with legal matter reported by Plowden, and in particular with the

1
See E Malone, The Plays and Poems of William Shakespeare in Ten Volumes (London, 1790), vol
IX, 385.
2
See Times Literary Supplement, 30 June 1950, 412.
3
See P Corbin and D Sedge (eds), Thomas of Woodstock or Richard the Second, Part One
(Manchester, Manchester University Press, 2002) 5.6.24–36.

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138 Carolyn Sale

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

‘TO HER OWN PROPER USE’

The Queen v Northumberland or the Case of Mines was a suit brought in the
Queen’s name by the Attorney General Gilbert Gerard against Thomas Percy, the
seventh Earl of Northumberland, for ‘hinder[ing] and disturb[ing]’ the ‘searching
and digging’ for ore in ‘certain waste or mountainous Lands called Newlands in
the County of Cumberland’, which the Earl claimed as property gifted to him by
letters patent from Philip and Mary in 1557.5 Despite the claims made in the
Queen’s name that the exercise of the prerogative with the seizure of 600,000 tons
of copper ore from the Earl of Northumberland’s freehold property was ancient
and incontestable, the action represented a radical augmentation of the royal
prerogative that infringed upon the subject’s ‘liberties’ under common law.
According to Thomas Fanshaw, the Earl’s attorney, the Queen could not, ‘by
reason of her Prerogative royal’, seize the copper at Newlands ‘to her own proper
Use’, because the Treatise of the King’s Prerogative, a compilation of statutes
pertaining to the royal prerogative freshly available in print in 1567, did not
permit her to dig in ‘the Freehold and Inheritance of another’.6 The controversy

4
W Shakespeare, Hamlet (London, Arden, 2006) 2.2.86–9. All further references to Hamlet will
be cited in the text.
5
E Plowden, The Commentaries or Reports of Edmund Plowden (London, 1761) 310.
6
Ibid 315.

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The Case of Mines and Shakespeare’s Hamlet 139

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

7
SP 12/36/34, 169r–172r.
8
See EH Ash, ‘Queen v. Northumberland and the Control of Technical Expertise’ (2001) 39
History of Science 215.
9
SP 12/42/61, 146r and SP 12/42/33, 84r.
10
SP 12/42/33, 84r.

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140 Carolyn Sale

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

11
Plowden, n 5 above, at 322.
12
Ibid 329–30.
13
Ibid 330.
14
Ibid 329.
15
Ibid 335.
16
Ibid 323.
17
Ibid 325.
18
Ibid 315.

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The Case of Mines and Shakespeare’s Hamlet 141

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

19
W Staunford, Exposicion of the Kinges Prerogatiue (1567) 5r.
20
Plowden, n 5 above, at 315.
21
Ibid.
22
Ibid.

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142 Carolyn Sale

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

if there is no more than a Quilful of Gold or Silver in a great Value of Copper, as Bell
said, it is not reasonable that so small a Quantity should be respected, but the Quantity
ought to be such as is of some Value in itself over and above the Charges of getting it,
and above the base Metal consumed therein. For if the Value is not regarded, but the
Gold or Silver, be it ever so little, shall entitle the Crown to the whole Mine, from thence
it would follow that the Crown would have all Mines of base Metal in the Realm.28

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

23
Ibid 328.
24
Ibid 329.
25
Ibid 336.
26
Ash, n 8 above, at 228.
27
Plowden, n 5 above, at vi.
28
Ibid 339.

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

29
Ibid.
30
SP 12/46/35, f 75r.
31
Ibid. See also G Parmiter, Edmund Plowden: an Elizabethan Recusant Lawyer ([London]
Catholic Record Society, 1987) 98–9.

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144 Carolyn Sale

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

32
W Camden, Annales (1625) ff 218–19, sig Ff1v –Ff2r.
33
Ibid 218.
34
See S Greenblatt, Hamlet in Purgatory (Princeton, Princeton University Press, 2001).
35
Ibid f 23v.
36
SP 12/36/34, f 171r.
37
Ibid 6v.

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

‘THE KING IS A THING’

The play finds its most explicit verbal engagement with the Case of Mines in the
charged material of Act 4 scene 2, which involves a political riddle that has baffled
editors of the play from Malone onwards.40 The exchange begins with the
demand from those royal agents with German names that Hamlet tell them

38
See The Early Elizabethan Succession Question 1558–1658 (Stanford, Stanford University Press
1966) 111–15, esp 111.
39
BL Ms Hargrave 849, 5r.
40
See CE Moberly (ed), Hamlet, Prince of Denmark (London/Oxford/Cambridge, Rivingtons,
1873) 94; HH Furness (ed), A New Variorum Edition of Shakespeare: Hamlet (Philadelphia/London, JB
Lippincott Company, 1918 [1877]) vol I, 316; and J Johnson, ‘The Concept of the “King’s Two Bodies”
in Hamlet’ (1967) 18(4) Shakespeare Quarterly 434.

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146 Carolyn Sale

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

41
BL Ms Hargrave 849, 2r.
42
See E Kantorowicz, The King’s Two Bodies: a Study in Medieval Political Theology (Princeton,
Princeton University Press, 1957); M Axton, The Queen’s Two Bodies: Drama and the Elizabethan
Succession (London, Royal Historical Society, 1977); and L Hutson, ‘Not the King’s Two Bodies:
Reading the “Body Politic” in Shakespeare’s Henry IV, Parts 1 and 2’ in L Hutson and V Kahn (eds),
Rhetoric and Law in Early Modern Europe (New Haven, Yale University Press, 2001) 166–98.

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The Case of Mines and Shakespeare’s Hamlet 147

England’s population from the denigration to which it is submitted in the case in


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

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

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148 Carolyn Sale

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

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The Case of Mines and Shakespeare’s Hamlet 149

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

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

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150 Carolyn Sale

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

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The Case of Mines and Shakespeare’s Hamlet 151

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

THE ‘COMMON CAUSE’

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

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152 Carolyn Sale

the courtier’ (5.1.132–3), his most famous soliloquy suggests that he is as


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

47
Ibid 319.
48
R Doleman, A Conference on the Next Succession to the Crown of Ingland (1595) 22.
49
E Coke, The Twelfth Part of the Reports of Sir Edward Coke, Kt (1658) 13.

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

50
BL Ms Hargrave 849, 6v.
51
Ibid 7r.
52
Ibid 6v. See also Axton, n 42 above, at 26–7.

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154 Carolyn Sale

Hamlet’s yoking of his own ‘particular’ concerns to a ‘general’ cause is most


acutely realised in the fencing match of Act 5, which is a thinly disguised trial by
battle in which Hamlet must make the King answer for his crimes even as he
answers Laertes for his. The apparently self-interested action of clearing himself
of Laertes’s charge by answering him in the trial by battle of the fencing match is
action for ‘the general’, for it is only by clearing himself of the taint of murder
that Hamlet may claim, taint-free, the Crown of Denmark, which fleetingly
passes to him in the moments before his death. But the play suggests that Hamlet
embodies the right kind of sovereignty in myriad subtle details, including his
desire to be subsumed or buried under ‘millions of acres’ of earth (5.1.270), a
desire, which, if fulfilled, would see him buried under a ‘fardel’ greater than any
other borne by the labourers with whom he is concerned in his most famous
soliloquy, and which, more importantly, distinguishes him from the kind of
sovereign glancingly alluded to in the Norman ‘Lamond’ discussed by Claudius
and Laertes in Act 4 scene 7. The allusion to the burial practices of the Norman
kings, who took with them to the grave the gold that they had acquired in their
lifetimes, situates the play’s concerns about sovereign seizures and the law in a
larger historical context, for it reaches back beyond the problems of the sixteenth
century, whether as epitomised by the Case of Mines or as manifest in the trauma
of the property seizures of the English Reformation, to the earlier seizures of a
conqueror who not only introduced into the legal language of England the
concept of the king’s ‘tresor’, but displaced earlier conceptions of property
holding in England as he converted common holdings into the private holdings
of the king.53 The avenger who would, as he leaps into Ophelia’s grave in Act 5,
clasp to himself not gold, but a girl, is the ore amongst ‘metals base’ that needs to
be recovered from the heap of the earth in which he would too willingly immerse
himself precisely because he consistently acts not for himself, but for others,
whether as his father’s agent or the agent of the ‘general gender’. By these actions
he crucially distinguishes himself from the kind of king who would go to his
grave with treasure ‘extorted from the womb of earth’ in order to trumpet his
excellence to eternity.
As Hamlet distinguishes its prince from ‘up-hoarding’ sovereigns, it strength-
ens his connections with the ‘general gender’ (that constituency which, we are
told, loves him) by making his act of writing in the final Act a representative one.
Writing as a ‘statist’ to produce the forged warrant for Rosencrantz and Guilden-
stern’s deaths, Hamlet does himself, he claims, ‘yeoman’s service’. (5.2.36) Yeomen
were the commoners whose property holdings were of sufficient size that they
might serve on juries and be elected to Parliament, their holding and cultivation
of land securing for them the right to participate in the shaping of law and the
performance of justice. Hamlet’s symbolic function for English audiences is

53
See De Grazia Hamlet without Hamlet (Cambridge, Cambridge University Press, 2007), at 64
and S Lerer, Inventing English: a Portable History of the Language (New York, Columbia University
Press, 2007) 42.

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underscored by his name, which associates him, as Margreta de Grazia has


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

54
De Grazia, n 53 above, at 6.
55
L Leroy, Aristotles Politiques, or Discourses of Government (1598) Biiir.
56
The phrase is from Willion v Berkley, Plowden, n 5 above, at 248.

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156 Carolyn Sale

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

57
Coke, n 49 above, at 12.
58
Ibid 13.

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The Case of Mines and Shakespeare’s Hamlet 157

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

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

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

GIUSEPPINA RESTIVO

THEATRE, LAW AND HISTORY

N HAMLET, comments on the players’ arrival at Elsinore allow


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

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

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160 Giuseppina Restivo

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

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

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Inheritance in Shakespeare’s King Lear 161

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

LEAR’S SUCCESSION

In his 2001 essay ‘King Lear, the Kentish Forest and the Problem of Thirds’, Terry
Reilly discusses the three legal traditions which he sees as present in the play:
English common law, civil law and Kentish Gavelkind.4 Shakespeare’s Earl of
Kent, though recalling the character of Perillus in a source for Shakespeare’s play,
The True Chronicle Historie of King Leir, is an original creation. His name suggests

3
B J Sokol and M Sokol, Shakespeare, Law and Marriage (Cambridge, Cambridge University
Press, 2003) 7.
4
Terry Reilly, ‘King Lear: the Kentish Forest and the Problem of Thirds’ (2001) 26(1)Oklahoma
City University L Rev 379. Gavelkind was a regional custom found not only in Kent, but in Wales and
East Anglia.

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162 Giuseppina Restivo

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

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

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Inheritance in Shakespeare’s King Lear 163

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

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

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164 Giuseppina Restivo

precision on Shakespeare’s part. Shakespeare, far from being confused in his


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

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Inheritance in Shakespeare’s King Lear 165

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

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

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166 Giuseppina Restivo

EDMUND, MONTAIGNE AND THE MISSING


TRUSTS

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

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

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Inheritance in Shakespeare’s King Lear 167

consideration. Montaigne stigmatises the relationships between children and


their ageing fathers who, anxious not to lose their patriarchal power, often spoil
their sons’ young adulthood and thwart their personality, by imposing con-
straints, to the point of cruelty and injustice. These arguments are clearly
recognisable in Edmund’s forged letter: ‘This policy and reverence of age makes
the world bitter to the best of our times, keeps our fortunes from us till our
oldness cannot relish them. I begin to find an idle and fond bondage in the
oppression of aged tyranny’. (1.2.46–50)
Critical of tyrannical fathers, Montaigne defends their children’s rights, advo-
cating the use of parental discretion and the progressive transfer to the children
of means and responsibility, according to their actual capacities. Above all,
inheritance should not be deferred until the death of the father. At the same time,
it is a wise father who avoids irreversible loss of control. In fact Montaigne, while
recommending what Lear does (a deliberate transfer of powers), warns against
the serious mistake that Lear makes, the total loss of control:

As for mee, I deeme it a kind of cruelty and injustice, not to receive them into the share
and society of our goods, and to admit them as Partners in the understanding of our
domestical affairs (if they be once capable of it) and not to cut off and shut-up our
commodities to provide for theirs, since we have engendred them to that purpose … It
is not to be said, that they have anything given them by such a way of obligation, which
a man may not recall againe: I, that am ready to play such a part, would give over unto
them the full possession of my house, and enjoying of my goods; but with such libertie
and limited condition, as if they should give me occasion, I might repent myself of my
gift, and revoke my deed. I would leave the use and fruition of all unto them, the rather
because it were no longer fit for me to weald the same … it must be a great
contentment to an aged father, himselfe to direct his children in the government of his
houshold affaires, and to be able whilst himselfe liveth, to checke and controule the
demeanors.13

Edmund’s denunciation of Edgar evokes Montaigne’s central point, but he


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

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

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168 Giuseppina Restivo

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

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

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Inheritance in Shakespeare’s King Lear 169

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

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

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170 Giuseppina Restivo

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

19
WJ Jones, The Elizabethan Court of Chancery (Oxford, Clarendon Press, 1967) 63.
20
Ibid 79.
21
Ibid 63.
22
Ibid 93, 95, 98.
23
Ibid 385.
24
Ibid 95.
25
See Sokol and Sokol, n 3 above, at 31–2.

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Inheritance in Shakespeare’s King Lear 171

of his inheritance.26 In 1580, John Shakespeare became embroiled in a lawsuit


with his brother-in-law, Edmund Lambert, which lasted for 20 years. Its origins
lay in the loan of £40 by Lambert to John Shakespeare, who mortgaged 44 acres
of land at Wilmcote, brought in dowry by John’s wife. Upon expiry of the
mortgage, Edmund refused the £40, demanding that John also paid him his other
debts, and claiming default. Litigation was resumed in 1588–90 by John, attempt-
ing to win back William’s inheritance. A settlement had been reached, but the
case was re-opened in 1599 by William, who sued Edmund’s son in Chancery, in
the vain hope of a better result in Equity than at common law. He was denied
access to the remedy he had sought in Chancery and finally lost his mother’s
land.
During this time, Lord Chancellor Egerton started an extensive programme of
legal reforms in Chancery and also resisted the appointment to Chancer