Shakespeare and The Law by Paul Raffield, Gary Watt

JOBNAME: Shakespeare and the PAGE: 1 SESS: 2 OUTPUT: Wed Aug 13 10:00:06 2008
SHAKESPEARE AND THE LAW
In July 2007, the School of Law at the University of Warwick hosted an

international conference on ‘Shakespeare and the Law’. This was a truly 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
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
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
Contents
Foreword v
CAROL CHILLINGTON RUTTER
List of Contributors xi
Introduction 1
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
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
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
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
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.
Introduction
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).
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
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’.
Shakespeare, Money and the Law of

Contract
Columns Design Ltd / Job: Shakespeare / Division: Ch01 /Pg. Position: 1 / Date: 13/8
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
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).
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.
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.
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
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).
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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’.
.
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
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).
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
II
Shakespeare, Women and the Law
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,
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
58 Germaine Greer
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
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.
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.
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.
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
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.
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
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.
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.
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.
68 Erika Rackley
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
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
Judging Isabella 69
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).
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).
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).
72 Erika Rackley
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.
Judging Isabella 73
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.
74 Erika Rackley
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.
Judging Isabella 75
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.
76 Erika Rackley
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
Judging Isabella 77
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
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.
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.
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.
III
Shakespeare and the Law of Love
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).
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).
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.
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.
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.
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.
(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.
90 Bradin Cormack
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.
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.
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.
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.
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.
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.
96 Bradin Cormack
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.
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.
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.
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
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.
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.
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.
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.
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.
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).
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.
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
21
Ibid 161.
22
Ibid 159.
23
William Shakespeare, The Tempest, The Oxford Shakespeare (Stephen Orgel (ed), Oxford,
Oxford University Press, 1998).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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
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.
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.
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.
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).
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.
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
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’.
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.
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.
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.
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
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
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.
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.
IV
Justice and the Royal Prerogative
9
‘The King is a Thing’: the King’s
Prerogative and the Treasure of the
Realm in Plowden’s Report of the
Case of Mines and Shakespeare’s
Hamlet
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.
JOBNAME: Shakespeare and the PAGE: 4 SESS: 8 OUTPUT: Thu Aug 14 13:41:51 2008
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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).
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.
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).
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.
JOBNAME: Shakespeare and the PAGE: 6 SESS: 10 OUTPUT: Mon Aug 18 11:15:11 2008
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
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.
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
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.
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.
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.
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.
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 Chancery of
corrupt officials. This was reflected in Shakespeare’s attacks in King Lear against
judicial corruption, echoing perhaps specific cases, personal experience, or even
Egerton’s actions. It is at least conceivable that in Shakespeare’s case the creation
of a trust might have saved his inheritance. A biographical root might provide a
personal source for the recurring obsession, both with loss of inheritance and
trusts in the plays of Shakespeare, especially in The Merchant of Venice, As You
Like It and King Lear. In neither The Merchant of Venice nor As You Like It does
comedy turn into tragedy, as divisive social problems are solved thanks to the use
of trusts, while in King Lear the missing trusts turn the double plot into a double
tragedy. In this sense, in the eyes of the ‘judicious few’, the issue of trusts is central
to the themes of the three plays, inviting a comparison between the respective
remedies applied to inheritance and property problems at common law and
equity.27 In The Merchant of Venice the trial scene ends by resorting to forms of
trust or ‘use’ that save the lives of both plaintiff and defendant, while at common
law both litigants would have perished in two subsequent trials.28 In As You Like
It, the same distributive and compensatory logic of equitable trusts appears in the
final scene of the Orlando/Oliver dispute, when the two brothers are reconciled.
Oliver has twice tried to kill his brother and Orlando has escaped into the forest.
Later, a penitent Oliver puts an end to their dispute by applying ‘self-justice’ in
the form of a ‘Chancery trust’ in favour of his brother. He renounces his estate
and confers on Orlando both the use of the family seat and all the revenue that
had been their father’s, but he keeps the title and property of the land for his own
descendants (‘all the revenue that was old Sir Rowland’s will I estate upon you’:
26
Kornstein, n 18 above, at 16–17.
27
This does not mean that Shakespeare was kindling conflict between Equity and common law
jurisdictions, but that personal experience made him aware of the useful remedies Equity could
provide. So far interpretation of Equity in the plays of Shakespeare has often been restrictive, as in BJ
Sokol and Mary Sokol, ‘The Merchant of Venice and the Two Texts of King Lear’ (1999) 200 Review of
English Studies 417.
28
M Andrews, Law v. Equity (Colorado, University of Colorado Press, 1965). See also, Restivo,
‘Shylock and Equity’, n 8 above.
(5.2.7–8) The penalty Oliver imposes on himself for his attempts on Orlando’s
life is the same as that imposed on Shylock for his attempt on Antonio’s life: the
use of equitable trusts, covering the would-be killers’ whole estates, conferred in
favour of the intended victims, while sparing the offenders’ hereditary lines.
Shakespeare’s recurrent equitable ethics in The Merchant of Venice and As You
Like It reveal the author’s long-standing interest in equitable solutions, implicitly
evoked again in King Lear.
Not only Montaigne (who was a lawyer and remained critical of contemporary
justice in his country), but also Essex, Southampton, Egerton and Coke probably
figured in Shakespeare’s imagination and in the audience’s response to King Lear.
The play implies a rich ideological debate, readable under the surface of Leir’s old
legend: in Shakespeare’s play the legend has become an ‘abstract and chronicle of
the time’, honouring Polonius’s description of the players, ‘for the law of writ and
the liberty these are the only men’.
Violence, the State and the Citizen
11
Punishment Theory in the
Renaissance: the Law and the Drama
HARRY KEYISHIAN
DDRESSING THE JUSTICES of the Peace whom he was training

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

person offended, sounds a less familiar note with us. It returns us to the very
origins of criminal law, that decisive turn in social history when the state
establishes itself as the only legitimate source of criminal justice and ends the
primitive system of feud and composition. Society promises to avenge those it
has been unable to protect, freeing its members from both the privilege and
responsibility of avenging injuries they have suffered.
The fourth of Lambard’s justifications serves to preserve the peace by contain-
ing socially toxic behaviour, since the thief or murderer who is incarcerated
cannot afflict the public at large. The concept of using terms of imprisonment in
‘houses of correction’ as a method of punishment was establishing itself in the
sixteenth and seventeenth centuries, based in part on this concern. Lambard, an
educated jurist with good historical knowledge, means for judges to be pragmatic
and result-oriented, to serve the good of the commonwealth, legitimate state
power, and affirm the social contract. His theory offers a comfortingly ‘sensible’
view of the ideal relationship between behaviour and consequences.
My interest here is both in Renaissance ideas about legal punishment and the
ways in which Shakespeare deals with the matter of punishment. I want to show,
first, that Shakespeare was familiar with contemporary legal theories of punish-
ment and that he articulated them in his plays. Secondly, I want to explore some
of the ways that Shakespeare incorporated principles of punishment into his
plays. The first task is easy, especially in such works as The Merchant of Venice and
Measure for Measure, which dramatise conflicting ideas about the aims of
punishment. The second is more difficult, complicated by the differences
between the conventions of law and drama. For while it was the business of
Renaissance law to systematise and rationalise ideas about punishment, it was the
business of playwrights not only to apply, employ and elaborate on those ideas,
but also to unpack, flout and sometimes annul them. As Karen Cunningham
points out, prosecutors in early modern trials aimed to establish ‘a definitive
point of view’2 to justify fierce and painful sentences. Plays, on the other hand,
offer what have been called ‘alternative criteria’ for and ‘an alternative structure of
justice’; they can function as ‘counterlaw’.3 They represent ‘an imaginative sphere
removed from the literal representation [of law]’ and therefore may ‘address great
metaphysical issues’.4 Law attempts to draw the straightest of lines between deeds
and consequences; drama relishes the discrepancies between them.
Still, I want to argue, we better understand the ways judgements operate in
drama if we play them off against the standards and practices of the law. To
2
Karen Cunningham, Imaginary Betrayals (Philadelphia, University of Pennsylvania Press,
2002) 1.
3
Subha Mukerji, ‘Jonson’s The New Inn and a Revisiting of the “Amorous Jurisdiction”’ (2006)
18(2) Law and Literature (Summer).
4
William M Hawley, Shakespearean Tragedy and the Common Law: the Art of Punishment (New
York, Peter Lang, 1998) 1.
Punishment Theory in the Renaissance: the Law and the Drama 177
demonstrate this, I need to engage a genre distinction—between comedy and

tragedy—and a judicial distinction—between the functions and philosophies of
common law courts and Equity courts in Shakespeare’s day. I suggest that the
utilitarian line of thought outlined by Lambard, above, best suits Shakespearean
comedy, while the competing legal theory of retribution (of which more later)
informs tragedy. As both comedy and tragedy reveal discrepancies between
deserving and punishment, they engage the ongoing Renaissance legal contro-
versy between advocates of positive law—of strict adherence to precedent—and
advocates of equity—loosely, of judicial discretion.
In general, characters in comedy suffer less than they should, while characters
in tragedy suffer more. And yet both sorts of plays provide closure, a feeling of
fitness, a sense of satisfaction with the things ‘worked out’. I contend that we will
better understand this apparent paradox by setting Shakespearean notions about
punishment against the ongoing debate about how the law should operate in
determining appropriate sentences.
RENAISSANCE UTILITARIANISM
Rehabilitation is on the Duke’s mind in his concern for Claudio’s and Juliet’s
spiritual state in Measure for Measure. He tries to purify the mind of the former
by reconciling him to his coming execution, while the latter—a model prisoner—
actively embraces her punishment, accepting her ‘shame with joy’. (2.3.35–6)5 Of
Pompey Bum, on the other hand, the Duke observes that ‘correction and
instruction must both work / Ere this rude beast will profit’ (3.2.32–3)—though
of course they don’t. The newly crowned Henry V has rehabilitation in mind
when he promises Falstaff social advancement ‘As we hear you do reform
yourselves’. (5.5.68–70) Rehabilitation seems to have worked in the case of
Caliban, who, following Prospero’s punishments, vows to be ‘wise hereafter / And
seek for grace’. (The Tempest, 5.1.295–6)
The spirit of rehabilitation best suits the mood of romantic comedy and
romance. Because, as Northrop Frye writes, ‘The tendency of comedy is to
include as many people as possible in its final society’, the theme of conversion is
one of its ‘fundamental principle[s]’.6 Falstaff ’s rehabilitation is perhaps achieved
in The Merry Wives of Windsor when he surrenders to the judgment of the Pages
and Fords. ‘Use me as you will’ (5.5.163–4), he says to the community he has
offended. King Leontes, punished by his son’s death for defying Apollo’s judg-
ment, experiences instant rehabilitation: ‘Apollo, pardon / My great profaneness
5
Citations are to GB Evans (ed), The Riverside Shakespeare (2nd edn, Boston, Houghton Mifflin
Company, 1997).
6
Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, Princeton University Press, 1957)
165–6.
178 Harry Keyishian
‘gainst thine oracle!’. (The Winter’s Tale, 3.2.153–4) Paulina, his main accuser,
testifies that Leontes is ‘touch’d / To th’ noble heart’. (3.2.221–2) Though Leontes’s
suffering is extended far beyond his rehabilitation, at the play’s end, his well-
deserved losses—except of Mamillius—are restored.
Several of Shakespeare’s characters have their punishments commuted even
without rehabilitation, among them the incorrigible Barnardine (from Measure
for Measure) and Antonio and Sebastian from The Tempest. Some characters have
rehabilitation thrust upon them: Autolycus, trying hard always to do the wrong
thing and anticipating deserved punishment for it, receives instead a flood of
good fortune and social respectability. The genre he inhabits rewards him: its
overriding value is social integration, not retribution. The judge (or god) fills the
gap between deserving and punishment with a becoming magnanimity, mercy
being, as Portia says, ‘an attribute to God himself ’. (The Merchant of Venice,
4.1.195)
Deterrence, though appearing second in Lambard’s list, was in fact the most
often cited justification for legal punishment in Renaissance law. Lambard
himself advises that ‘by taking punishment upon such as be here, we shall either
withdraw or warn others that be in danger of the same contagion’.7 For Francis
Bacon, ‘All Punishment is for Examples sake’8 and penal laws are ‘meant for
terror’.9 For Edward Coke, ‘The principal end of punishment is, that others by
[the criminal’s] example may fear to offend’. Coke objects to the execution of
madmen not only because it makes ‘a miserable spectacle, both against law, and
of extreme inhumanity and cruelty’, but also because it ‘can be no example to
others’.10
It is the breakdown of deterrence, general and particular, in Vienna that
motivates the Duke to turn judicial power over to Angelo. Though the city has
‘strict statutes and most biting laws’ (Measure for Measure, 1.3.19) on its books,
they no longer induce ‘terror’ or ‘fear’ because they have not been enforced.
Angelo ascribes the prevalence of crime in Vienna to this lapse: ‘Those many had
not dar’d to do that evil / If the first that did the edict infringe / Had answered for
his deed’. (2.3.134–6) Whereas rehabilitation best suits the spirit of romantic
comedy, deterrence seems most natural to satire, which holds up to shame and
ridicule those that offend good taste and decorum. Philip Sidney pointed out the
salutary effect of stage comedies which, by representing ‘the common errors of
our life . . . in the most ridiculous and scornful sort that may be’, make it
7
‘Charge to the Jury for Rogues’ (1583) in Conyers Read (ed), William Lambarde and Local
Government (Ithaca, NY, Cornell University Press, 1962) 174.
8
Francis Bacon, The Use of the Law (London, John Moore, 1630; reprint: New York, De Capo
Press, 1969) 4.
9
Francis Bacon, Selected Writings (Hugo C Dick (ed), New York, The Modern Library, 1955) 140.
10
Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning High Treason
and Other Pleas of the Crown and Criminal Causes (London, W Clarke and Sons, 1817) 4.
‘impossible that any beholder can be content to be such a one’.11 Malvolio and Sir
Andrew Aguecheek (in Twelfth Night) stand as effective portraits of narcissism
and self-deception.
Lambard’s third point, that the state has a role in vindicating individuals who
have suffered injury, strikes an odd note for us: today people are tried criminally
for breaking a law, not for offending an individual. But in an era where dueling
among aristocrats was common, it was important for the state to assert its
exclusive right and responsibility of maintaining public order and obviating the
need for personal revenge. The victim requiring the most spectacular vindication
was the monarch who, alone in the state, had the right of vengeance. The person
adjudged of committing treason has, as Michel Foucault says, ‘touched the very
person of the prince’. Execution for such a capital offence is ‘a ceremonial by
which a momentarily injured sovereignty is reconstituted’.12 Henry V character-
ises the treasonous actions of his intimate, Lord Scroop, ‘another fall of man’.
(Henry V, 2.2.142) But a commoner like Isabella, too, can demand to be heard by
the Duke and to have the right of ‘justice, justice, justice, justice!’ (Measure for
Measure, 5.1.25)
In Shakespeare, of course, dramatic conflict mostly derives from the failure of
the state to vindicate individuals. In the most extreme cases, as King Claudius
points out, ‘Offense’s gilded hand may shove by justice’. (Hamlet, 3.3.58) But
kings may also fail to do justice simply by neglect. Bolingbroke complains that
the laws of England have not protected the property of his father, which should
rightly have descended to him at death. Instead, the king’s favourites, Bushy and
Green, ‘have fed upon my signories, / Dispark’d my parks, and fell’d my forest
woods’. (Richard II, 3.1.22–4) Unsupported by law, Bolingbroke takes matters
into his own hands: ‘Attorneys are denied me, / And therefore personally I lay my
claim / To my inheritance’. (2.3.134–6) The failure of the state (in this case, the
monarch) to hold up its end of the social contract has dire consequences, as
Lambard might have predicted.
SEEKING RETRIBUTION
Oddly absent from Lambard’s utilitarian list is any explicit endorsement of

retribution. And yet retribution is to be found everywhere in Renaissance
culture—in religious thought, in literature, and certainly in the law, embedded in
11
Sir Philip Sidney, An Apology for Poetry: Elizabethan Critical Essays (G Gregory Smith (ed),
London, Oxford University Press, 1904) 176–7.
12
Michel Foucault, Discipline and Punish: the Birth of the Prison (Alan Sheridan (trans), New
York, Pantheon Books, 1977) 48.
180 Harry Keyishian
such forms and ancient habits of mind as the lex talionis.13 The passion for
retribution reflects a deep conviction that crimes disturb the moral order, which
can only be restored by redressing the balance of justice. Whereas utilitarian ideas
of punishment are forward-looking, concerned to uphold the social order,
retribution was backward-looking, seeking to uphold the moral order. It was, as
William Lamdard put it, ‘consonant with reason’ when retribution followed
crime; the practice of punishment was ‘grounded upon the laws of God and
nature itself ’ (at 173).
Retribution is heard clearest in sentencing statements at treason trials. In
announcing the punishments due the Gunpowder Plot conspirators in 1606,
Lord Chief Justice John Popham matched punishment to crime with meticulous
care. He declared the actions of the plotters to be ‘the greatest treasons that ever
were plotted in England’; ones that ‘concern the greatest king that ever was of
England’ (at 166). Their offence against lèse majesté is ‘beyond … all examples,
whether in fact or in fiction, even of the tragic poets, who did beat their wits to
represent the most fearful and horrible murders’ (at 168).
They had, therefore, to suffer punishments that suited and expressed their
horrendous crimes. Each of the condemned was to be drawn to the place of his
execution rather than permitted to walk, as being not worthy any more to tread
upon the face of the earth. Each was to be drawn backward, at a horse-tail, for that
he hath been retrograde to nature; his head will be ‘declining downward, and lying
so near the ground as may be, being thought unfit to take benefit of the common
air’; after being strangled, he will be ‘hanged up by the neck between heaven and
earth, as deemed unworthy of both, or either’. ‘Then is he to be cut down alive, and
to have his privy parts cut off and burnt before his face as being unworthily
begotten, and unfit to leave any generation after him. And his head, which had
imagined the mischief, was to be cut off ’14 (Cobbett at 184 (emphasis added)).
By making each punishment derive from the crime that induced it, Popham is
trying to naturalise the relationship between them. Others, like the thirteenth
century jurist Henry de Bracton, tried to make a science of sentencing. Combin-
ing English common law, Roman law (through Justinian’s The Digest), and the
theories of his contemporary Azo of Bologna and his colleagues, Bracton
produced a primitive version of our modern ‘sentencing guidelines’, setting forth
criteria by which judges might calculate appropriate levels of punishments for
particular crimes. Bracton’s writings are relevant because, though composed in
the reign of Henry III, they were consulted and cited continuously and, after their
publication in 1569, became acknowledged classics of English law.
13
Valuable studies of the practice of retribution in this period include JA Sharpe, Judicial
Punishment in England (London, Faber and Faber, 1990); Esther Cohen, The Crossroads of Justice: Law
and Culture in Late Medieval France (New York, EJ Brill, 1993); and Mitchell B Merback, The Thief, the
Cross and the Wheel: Pain and the Spectacle of Punishment in Medieval and Renaissance Europe
(Chicago, University of Chicago Press, 1999).
14
Cobbett’s Complete Collection of State Trials and Proceedings for High Treason and Other Crimes
and Misdemeanors (London, TC Hansard, 1809) 184.
Bracton instructs judges to consider each offence from seven different perspec-
tives: motive, person (the relative social rank of criminal and victim), age, place
(whether the location of the crime was sacred or secular), time (whether the
crime took place by day or night), quality (the severity of an injury), and quantity
(the amount stolen). Of these, the most relevant for us is motive, because it
defines whether or not an act is a crime. ‘Remove will’, says Bracton, ‘and every
act will be indifferent. It is your intent that differentiates your acts, nor is a crime
committed unless an intention to injure exists’.15 A whipping administered by a
master or parent with intent ‘to correct’ is not punishable, while a whipping
committed in anger by a stranger is. Taking a life is not punishable when done by
a judge ‘in the administration of justice’, in observation of ‘proper legal proce-
dures’ and out of a ‘love of justice’.16 Nor is it homicide if done in self-defence,
since the killing is done ‘without premeditated hatred but with sorrow of heart,
in order to save himself and his family’; it follows that a madman ‘cannot be
guilty’.17 ‘No man did ever think the hurtful actions of furious men and innocents
to be punishable … In this consideration one evil deed is made more pardonable
than another’. Three centuries later, Lambard stressed the same point:
If a mad man or a natural fool, or a lunatike in the time of his lunacy, or a childe [that]
apparently hath no knowledge of good nor evil do kill a man, this is no felony … for
they cannot be said to have any understanding of evil. (Eirenarcha, at 218)
Both authors, in measuring culpability and assigning sanctions, are concerned

not merely with a mechanical equivalence of harms (and eye for an eye) but with
the intent of the perpetrator.
Hamlet’s apology to Laertes seems laced with these concerns. It relies first on
the excuse of ‘madness’ (5.2.228):
If Hamlet from himself be ta’en away,

And when he’s not himself does wrong Laertes,
Then Hamlet does it not. (5.2.230–32)
But it also goes to the question of intent and, in that connection, invokes
Bractonian principles:
15
Henry de Bracton, Bracton on the Laws and Customs of England (Cambridge, MA, Belknap Press
of Harvard University Press, 1968) 23.
16
Ibid 340. Bracton holds his fellow jurists to very high standards: the judge who judges
‘perversely and against the laws’ or who takes bribes will ‘bring upon himself sorrow and lamentation
everlasting’: ibid 21.
17
Ibid 341, 424.
182 Harry Keyishian
Let my disclaiming from a purpos’d evil

Free me so far in your most generous thought,
That I have shot an arrow o’er the house
And hurt my brother. (237–40)
As readers, we know better. We know that the situation is murkier and more
ambiguous than Hamlet reports, especially with regard to how lucid Hamlet was
when he killed Polonius, but he clearly understands his legal position and how he
must cast his defence in this context.
Isabella’s defence of Angelo before the Duke plays similarly with the issue of
intent:
Look, if it please you, on this man condemn’d,

As if my brother lived. I partly think
A due sincerity govern’d his deeds,
Till he did look on me: since it is so,
Let him not die. My brother had but justice,
In that he did the thing for which he died:
For Angelo,
His act did not o’ertake his bad intent,
And must be buried but as an intent
That perish’d by the way: thoughts are no subjects;
Intents but merely thoughts. (5.1.441–51)
Her logic here, both legal and moral, is dubious, but that seems to be Shake-
speare’s point: that she, despite her great intelligence and the justice of her
demand for retribution, is prepared to mount and endorse a shaky case in order
to gain mercy for an indubitably guilty person.
Isabella is doing what Angelo refused to do: she is taking into account
circumstances that mitigate Angelo’s guilt. By taking circumstance into account,
she is invoking considerations of equity, echoing the distinction between legal
literalism and equity (as a form of mercy) that had been institutionalised in
sixteenth-century English courts. Discussing the roles of English courts in his
day, Lambard repeats the distinction Aristotle draws in the Nichomachean Ethics
between literal justice and ‘equity’: between courts that follow ‘the straight
law’—‘written laws’, which are general and ‘grounded upon that which happeneth
for the most part’—and Chancery courts in which ‘the rigor of the law [is]
amended … by the true consideration of justice and equity’:
The written law is like to a stiff rule of steel or iron, which will not be applied to the
fashion of the stone or timber whereunto it is laid. And equity is like to the leaden rule
of the lesbian artificers, which they might at pleasure bend and bow to every stone of
whatever fashion.18
In practical terms, this often came down to a dispute between advocates of the
common law (like Edward Coke), who would adhere to precedence in allotting
punishments, and defenders of judicial discretion and the royal prerogative (like
Francis Bacon).
King James I counselled his son Henry, regarding his judicial duties, to ‘act as
your heart serveth you and according to the circumstances of the time’, to ‘mixe
Justice with Mercie, punishing or sparing, as ye shall find the crime to be willfully
or rashly committed, and according to the by-past behaviour of the committer’.19
To fill the gap between desert and punishment with equity, which leads to mercy,
becomes a king. Portia describes mercy as ‘an attribute to God himself ’; ‘earthly
power doth then show likest God’s / When mercy seasons justice’. (The Merchant
of Venice, 4.1.195–6)
Martha Nussbaum perceives an analogous distinction between the courtroom
and the playhouse as places where judgment is rendered. She contrasts judges in
criminal trials who are obliged to follow the letter of the law with ‘literary’ judges
who ‘come … to have emotions both sympathetic and participatory toward the
things that [a wide array of characters] do and suffer’ (at 110). Her ‘literary judge
sees defendants as inhabitants of a complex web of circumstances … which often,
in their totality, justify mitigation of blame or punishment’ (at 111). On this
basis, she characterises tragedy as ‘a school of equity and therefore of mercy’ (at
95).
Surely it is true that drama, by providing access to the minds of characters so
that we can gauge their level of responsibility and guilt, is all about the discovery
of intent. It permits playwrights to give audiences access to as much of a
character’s intent as necessary to shape an audience’s response to it. But in the
process drama also discloses how fragile and ephemeral intent is. And tragedy
goes further; it calls upon its audience to weigh the protagonist’s actions from his
or her own perspective. Hamlet, Othello and Lear plead to be understood: the
first as the victim of bloody accidents; the second as a deluded rather than an
evil-intentioned man; and the third as ‘more sinned against than sinning’. Brutus,
Antony and Coriolanus have posthumous claques that coax us into sympathy
with them.
18
William Lambard, Archeion, or, A Discourse upon the High Courts of Justice (Charles H McIlwain
and Paul L Ward (eds), Cambridge, MA, Harvard University Press, 1957[1635]) 43, 45.
19
Neil Rhodes, Jennifer Richards and John Marshall (eds), King James VI and I: Selected Writings
(Burlington VT, Ashgate Publishing Co, 2003) 220–1.
184 Harry Keyishian
Even Macbeth, that case study in mens rea, solicits our sympathy as we share
with him the powerful pressure of his wife’s pleadings and her adroit manipula-
tion of the warrior code that betrays him to a fallacious definition of manhood.
Add to that the play’s evocation of the misery his bad decisions have led him to,
his pre-sentencing suffering, and the fact that he reinforces the very values he has
violated by witnessing so strongly against himself. I quote a paragraph in which
Nussbaum discusses Dickens’s charismatic villain Steerforth (from David Copper-
field), but I substitute Shakespeare’s character:
We are led to see [Macbeth’s] crimes as deliberate in the immediate sense required by
strict legal and even moral judgment, but we also know that behind these crimes is a
tangled history that might have been otherwise, a history that was not fully chosen by
[Macbeth] himself … We are led to see character itself as something formed in society
and in the family, something for which strict morality rightly holds individuals
responsible, but something over which, in the end, individuals do not have full control.
(at 107)
Drama steps beyond the law by taking up instances in which consequences are
often unjust—which is the very definition of tragedy. As Aristotle teaches, there is
nothing tragic about a bad person’s downfall, and nothing just about the
downfall of a good person: what defines the tragic experience is for one to be
neither all good nor all bad, but still to suffer, and to suffer more than one
deserves.
And yet for tragedy to work, the protagonist’s death must somehow seem fair,
just and equitable. It offers a form of consolation. Nussbaum’s literary judge,
discerning the inadequacy of general laws when applied to specific situations,
witnesses the workings of the ‘straight’ law, univocal and unalterable, but does so
through the eyes of equity. We witness the workings of the ‘straight’ law that
cannot be defied or altered, which decrees death for the protagonist, but we do so
through the eyes of the judge of equity who discerns the inadequacy of that law,
but, in the end, must acquiesce to its peculiar validity. We cannot change the
outcome, but we can fill the gap between deed and desert with our own mercy
and grace. This is a paradox, but it is one that the application of law to literary
studies helps resolve.
12
Terrorists and Equivocators
IAN WARD*
N THE FEAST of the Invention, 3 May 1606, Father Henry Garnet

was strapped to a hurdle and dragged to his place of execution.
According to Protestant accounts he looked guilty and terrified.
According to Catholic accounts, he looked innocent and serene. Rather irritat-
ingly, at least for the assembled dignitaries, he refused to confess his treason, and
further denied that he was merely equivocating. Then, rejoicing in the fact that he
had ‘found my cross’ he embraced the opportunity to die a martyr’s death. It was
all rather unsatisfactory, and the fact that a group of suspected Catholic sympa-
thisers ran up and pulled on his legs to make sure that he died whilst being
hanged, and so did not suffer the peculiar agonies of being drawn, really quite
ruined the day. By the time his heart was being torn out, and his body quartered,
the crowds were drifting home, and those left were reported to have been
murmuring rather ominously.1 Traitors, particularly Jesuit ones, were supposed
to suffer rather more, their spectacular demise a matter of altogether greater
celebration. And Garnet was no ordinary Jesuit. He was the Superior of the Order
of Jesuits in England.
God’s ‘chosen people’, of whom Garnet was most definitely not one, imagined
themselves living in an ‘age of terror’; terrorised, primarily by men like Garnet,
the imagined puppet-master of a vast, if shadowy network, of Jesuit insurgents
dedicated to destroying Albion and all its hard-earned freedoms.2 Garnet was, in
simple terms, the Osama bin Laden of early seventeenth century England; more
guilty as Sir Edward Coke affirmed at his trial, as ‘author’ of the infamous Plot
than ‘all the actors’.3 Garnet had been found hiding, not in a cave in the Hindu
* An earlier version of this chapter appeared at (2007) 1(1) Law and Humanities 111.
1
For an account of Garnet’s execution, see A Fraser, The Gunpowder Plot (Phoenix, 2002)
319–23.
2
For the assertion that contemporaries regarded themselves as living in an ‘age of terror’, see R
Wilson, Secret Shakespeare: Studies in Theatre, Religion and Resistance (Manchester, Manchester
3
Ibid 196.
186 Ian Ward
Kush, but in a closet in Hindlip House near Worcester. But the parallel is again
immediate. Terrorists skulk, and Garnet had spent his life skulking. Skulking was
reason enough for his vilification, his office as Superior reason more. But
Garnet’s guilt was greater still, for he was implicated, however remotely, in one of
the most spectacular, if ultimately abortive, terrorist acts in British history: the
Gunpowder Plot of November 1605. Whilst Garnet was not directly embroiled in
the Plot, he was widely held responsible for failing to caution young Catholics
against such plotting. He was, as the popular rhyme suggested, ‘accessory to this
damned intent’.4
The Powder Plot, as it was known by contemporaries, was intended to blow up
Parliament and with it the new King James I and his family. It was, very definitely,
a terrorist plot; a spectacular act of extreme political violence intended to disrupt
the English state and terrify its people.5 Although it failed, so spectacular was the
intent, and the possible consequence, that it has retained a unique place in the
English political consciousness.6 Generations of children have learned the iconic
rhyme: ‘Remember, Remember, the Fifth of November’. In time, the celebration
of apocalypse narrowly averted has given way to the fun of Bonfire Night, to the
munching of sausage rolls, firework displays and the ritual burning of effigies of
Guy Fawkes. But the political and theological charge still lurks beneath, not least
in the habit, which continues to this day in certain English towns, of providing
the ‘Guy’ with companions; amongst which, in recent years, and with an
appropriateness that is as acute as it is quixotic, can be included incinerated
images of Osama bin Laden, Tony Blair and George Bush.7
The experience of terror, and the ritual, bridges the centuries. As James Sharpe
has recently argued, currently assailed by all the fantastic rhetoric of our present
‘war on terror’, the need for context, of the kind that history, and literature, can
provide, is pressing. Collective ‘cultural memories’ of events such as ‘the Fifth’ can
help us to ‘understand our current predicaments’ that little bit better.8 Or at least
they should. Whether or not they do is a different matter. The terrorised tend to
be susceptible to the suggestion that the particular terror they perceive is so much
more terrifying than any previous terror. And it is, of course, the purpose of any
counter-terrorist strategy to make sure that this is the governing perception.
Aside from providing a broader historical context, memories of ‘the Fifth’ also
serve to underline one marked characteristic of an overriding majority of
terrorist events and experiences; and this is the particular and pervasive relation
of terrorism and religion. The ‘connection between terror and injustice in divine
4
The extent of Garnet’s involvement in the Plot remains uncertain. He is thought to have known
about the existence of such a plot, at least in vague outline, by July 1605.
5
See J Sharpe, Remember, Remember the Fifth of November: Guy Fawkes and the Gunpowder Plot
(London, Profile, 2005) 3 and 67, describing it as a ‘failed act of terrorism’, and also Fraser, above n 1,
at xv–vi and 359.
6
See Fraser, n 1 above, at 339.
7
See Sharpe, n 5 above, at 174–5, 177.
8
Ibid 8 and also 195–7.
Terrorists and Equivocators 187
matters’, as Terry Eagleton has recently affirmed, is present in ‘every age’.9 The
victims of terrorism, all too often, are chosen because they are thought to believe
in the wrong God or gods or in no gods at all. Father Garnet believed in the right
God, but not in the right way. Those who died in the Twin Towers on 9/11 were
similarly indicted, at least by their assailants. And so it might be surmised are
those who continue to die in Afghanistan and Iraq, and in so many other corners
of the globe. Twenty-one centuries ago, so the New Testament tries to persuade
us, the son of God was sent to save humanity. Sometimes it is hard to believe that
it really wants to be saved at all.
THE SWORD ERECT
Early modern England was saturated by theology. The English were, of course, a
‘chosen people’, blessed as Bishop Aylmer famously confirmed because God
Himself ‘is English’.10 But they were also a tortured and terrified people; terrified,
above all, by the fear that God would forsake them if they fell back into the
temptations of Popery, their terrors graphically confirmed by all the tortures
depicted in Foxe’s Book of Martyrs and similar canons of militant Protestantism.11
The great statutes of the Reformation, the Acts of Supremacy and Uniformity,
existed as much to confirm the expulsion of Popery as it did the establishment of
an Anglican Church, whilst collateral edicts, such as the 1569 Homily Against
Disobedience and Willfull Rebellion provided a legislative complement to the
horrors depicted in Foxe’s Book. Either the ‘chosen people’ obeyed the edicts of
their anointed monarch, or they lived in a state of ‘Babilonical confusion’, with
the concomitant certainty of their ‘utter destruction, bothe of soules, bodies,
goodes and common wealthes’.12
The militant strain was endemic. In his final play, Henry VIII, Shakespeare has
his Archbishop predict that the future Elizabeth will rule by a mixture of ‘Peace,
plenty, love’ and a just measure of ‘terror’. (5.4.47) Terror, particularly Popish
terror, must be met by terror. It was only to be expected. A generation later,
England would, as Sir Thomas Digby rued in 1642, ‘fly into the wilderness for
religion’.13 Marvell’s Oliver Cromwell carried the ‘sword erect’, a true crusader of
9
T Eagleton, Holy Terror (Oxford, Oxford University Press, 2005) 2, 27–41.
10
See P Collinson, The Birthpangs of Protestant England: Religious and Cultural Change in the
Sixteenth and Seventeenth Century (Basingstoke, Macmillan, 1988) 7.
11
Foxe’s Book was, according to Collinson, a ‘monumental influence’ on the collective mind of the
‘chosen people’; see his Birthpangs, n 10 above, at 12.
12
See I Ward, A State of Mind? The English Constitution and the Popular Imagination (Stroud,
Sutton, 2000) 38; and Sharpe, n 5 above, at 3–6.
13
Clarendon, Selections from Clarendon (Oxford, Oxford University Press, 1978) 249.
188 Ian Ward
the English reformation, ‘God’s Englishman’ indeed.14 The English civil wars
were, in every sense ‘wars of religion’, and they were also very definitely wars ‘on
terror’.15 Marvell also presented Cromwell as the ‘force of Heaven’s angry flame’.16
Milton depicted an ‘angry Jove’ raging at an awed people.17 John Bunyan readily
admitted to be ‘tossed’ into a state of near-perpetual ‘despair’ by his fear of God.18
They were, like St Augustine, forever filled ‘with terror’.19
Perceptions of Jove’s anger, and its focus, were various. It encompassed,
certainly, the avowed Papist, and most especially that ‘generation of vipers’, as
Lord Burghley termed them: the Jesuits.20 His ‘chosen people’ had taken the
trouble to enact plenty of legislation to flush out the Popish sympathiser;
enforcing attendance at Anglican churches on pain of fine or even confiscation of
property, banning Catholic rituals and restricting the movement of suspected
recusants. Jove’s anger was also directed towards the over-zealous counter-
terrorist, such as the Earl of Essex, who, in the wake of his failed coup in 1601,
claimed that he had only sought to deliver his Queen and ‘all Christendom from
the fearful usurpation’ of Rome.21 As successive Homilies had confirmed, if there
was a problem, in Albion, or with its anointed sovereign, God would sort it out.
Similarly, nothing would make Jove angrier, as George Herbert implied, than the
‘chosen people’ allowing themselves, and their reformation, to be devoured by the
‘worm’ of ‘schism’.22 Richard Hooker’s Laws of Ecclesiastical Polity was fervent in
its defence of the ‘golden mediocrity’ in church governance.23 The ever-anxious,
ever-terrified, John Donne likewise urged a balance, of ‘reason’ in the ‘soul’s left
hand’ and ‘faith’ in ‘her right’.24
Equally, however, many feared that Jove was angry with His people for their
complacency. The fifth book of Edmund Spenser’s Faerie Queene closes with the
‘blatant Beast’ of ‘ugly Barbarisme’ and ‘brutish Ignorance’ ravaging the ‘new
Hierusalem that God has built’.25 The Beast is nurtured by indifference; by a
misplaced tolerance; by a willingness to countenance ‘church papists’, closet
14
A Marvell, ‘An Horatian Ode upon Cromwell’s Return from Ireland’, line 116, in The Poems and
Letters of Andrew Marvell (Oxford University Press, 1970).
15
See J Morrill, The Nature of the English Revolution (Harlow, Longman, 1993) 38–9 and 45–68.
16
Marvell, n 14 above, line 26.
17
See T Paulin, Crusoe’s Secret: the Aesthetics of Dissent (London, Faber and Faber, 2005) 22–3,
31–2, 41.
18
J Bunyan, Grace Abounding to the Chief of Sinners (London, Penguin, 1987) 48.
19
See Eagleton, n 9 above, at 40–1, suggesting that such a theology makes its God a ‘terrorist’.
20
In Fraser, n 1 above, at 46.
21
See W MacCaffrey, Elizabeth I (London, Edward Arnold, 1993) 277 and C Hibbert, The Virgin
Queen: a Personal History of Elizabeth I (Penguin, 1992) 231.
22
G Herbert ‘A Priest to the Temple’, lines 9–11, 19, 50–1, 95, 101–2, 131–2, 179–86 in The
Complete English Poems (Penguin, 1991), and also D Levarg, ‘George Herbert’s “The Church Militant”
and the Chances of History’ (1957) 36 Philological Quarterly 265.
23
R Hooker, Of the Laws of Ecclesiastical Polity (Cambridge University Press, 1989) 79–80, 145–51.
24
J Donne, ‘To the Countess of Bedford’, line 1 in The Complete English Poems (Penguin, 1996).
25
E Spenser, ‘The Faerie Queene’ in Complete Poetical Works (Oxford University Press, 1980)
1.10.57 and 5.12.41–3.
Papists trundling to church every Sunday, closing their ears to the godly Word
and then scurrying back to their various homesteads and taking mass.26 The rise
of Arminianism, an ‘old condemned heresy raised up from hell of late by some
Jesuits’, as William Prynne termed it, only seemed to confirm everyone’s worst
fears.27 There was always something, or so it seemed to men like Prynne,
half-hearted about the Elizabethan Reformation; which is why there needed to be
another one. Whilst Sir John Harrington famously compared life in Elizabethan
England to a ‘kind of Romanze’, he also, later, compared Gloriana to an indolent
scullery-maid who brushed the dirt under the kitchen mat.28
For the Elizabethan, of course, the ‘Romanze’ was everything. ‘We princes’, as
Elizabeth had famously admitted, ‘are set on stages in the sight and view of all the
world duly observed’.29 Moreover, Gloriana and her Church were inseparable in
the political imagination. ‘I have no dealing with the Queen’, the MP Thomas
Norton advised his son, ‘but as with the image of God’.30 The Protestant poetic,
found in texts such as Puttenham’s The Arte of English Poesie and Sidney’s Defense
of Poesy, was composed to confirm precisely this.31 The papal anti-Christ would
be repelled, not just by the ‘sword erect’, but by lyric and verse. As Sidney
admitted in his Defense, the poet ‘doth not only show the way, but giveth so sweet
a prospect into the way, as will entice any man to enter it’.32
The idea that the rhetoric of terror and terrorism must be met by a counter-
rhetoric of counter-terrorism is not new. In the Protestant poetic it found
expression in Spenser’s invocation of ‘savage justice’ against the Papists of Ireland,
or anywhere else; in Sidney’s similar urgings against the ‘sorceries’ of Rome
wherever they may be found; and, in equally brutal form, in Milton’s Eikono-
clastes, which defended the execution of Charles I, not just as cruel necessity, but
as a duty demanded by the ‘special mark’ of God’s ‘favour’.33
And the same anti-Catholic tone can be readily found in the final book of
Thomas Hobbes’s Leviathan; against its ‘Confederacy’ of priestly ‘Deceivers’, its
‘Ghostly incantations’, its myriad sacramental ‘Illusions’, and its ‘vaine and
impious Conjurations’.34 But Hobbes was not part of the Protestant poetic.
Indeed, he was enormously suspicious of any poetic; a suspicion which, as would
26
‘Church’ or appellant Catholics formally defined themselves by a willingness to ‘appeal’ their
political loyalty to Elizabeth I. See Fraser, n 1 above, 26–7, 31, 46–52, and Sharpe, n 5 above, at 21–4.
27
In K Sharpe, The Personal Rule of Charles 1 (Yale University Press, 1992) 295.
28
S Greenblatt, Renaissance Self-Fashioning (Chicago University Press, 1980) 168–9.
29
Ibid 167.
30
Ibid 168 and P Collinson, ‘The Monarchical Republic of Queen Elizabeth I’ (1987) 69 Bulletin of
the John Rylands Library 409.
31
B Worden , The Sound of Virtue: Phillip Sidney, Arcadia and Elizabethan Politics (New Haven,
Yale University Press, 1996) 254, and R White, Natural Law in English Renaissance Literature
(Cambridge University Press, 1996) 73–86.
32
In P Sidney, A Critical Edition of the Major Works (Oxford University Press, 1989) 220–3,
226–31, and also Worden, n 31 above, at 227–39.
33
Sidney, n 32 above, at 42, 101, 110–11, 132, and J Milton, Complete Prose Works (Yale University
Press, 1953–62) 3.342–3, 348.
34
T Hobbes, Leviathan (Penguin, 1985) 627–9, 633–6.
190 Ian Ward
be the case with Burke and his Reflections, inheres its own particular ironies. Any
theology, Hobbes implies, seeks to govern imaginations by nurturing ‘Phantasms
of the braine’, by projecting a ‘kingdome of darknesse’ and terror into which
perceived heretics must fall. Popery is merely the most distasteful of such
theologies. His later history of the English civil wars, Behemoth, depicts a people
that did indeed fly into a war against terror precisely because they were terrified
by the incantations of rival clerics. Terror and religion, Hobbes well knew, are the
cosiest of bedfellows.35
GUNPOWDER, TREASON AND PLOT
The arrival of James I from Scotland had been met with much enthusiasm by
Catholics. Henry Garnet anticipated a ‘golden time’ with ‘great hope’ of ‘tolera-
tion’.36 For much of the previous decades Jesuit tracts had circulated, pleading the
cause of alternative successors, such as the Spanish Infanta. But James was the
realistic expectation, and his rule in Scotland, quite apart from the notoriety of
his mother as a Catholic martyr, gave Garnet every reason to hope. Sadly, as
tended to become characteristic of the new King, in time he began to disappoint.
The future, it became apparent, was going to be like the past; with pale-faced
priests emerging in the quieter hours from cramped little closets, giving hasty
masses, and then retreating back into the shadows.
Whilst the likes of Garnet were more inclined to sigh a little deeper and
reconcile themselves to their disappointment, a younger generation proved to be
rather less amenable, and chose, instead, the path of active resistance. The Powder
Plot, the origins of which could be traced to Spring 1604, was a young man’s plot,
an expression of visceral and of discontented youth. Their leader was the
charismatic Robert Catesby. Guy Fawkes was the hired hand. In time, they would
secure Garnet’s tacit assent. But their role bears a far more ready resemblance to
that of an autonomous terrorist cell existing only very loosely within a wider
diaspora of disaffected Catholics.
Having blown up King and Parliament, the aim of the plotters was to install a
Protectorate under the prominent Catholic Earl of Northumberland, with the
young Princess Elizabeth as queen.37 Famously, they failed. Albion was saved once
more. As the King advised his Parliament, they had been delivered from a
‘roaring, nay a thundering sin of fire and brimstone’.38 The formal institutions of
law swung quickly into action. So did the propaganda. Although James cautioned
against assuming ‘that all professing the Romish religion were guilty of the same’,
35
T Hobbes, Behemoth (Chicago, Chicago University Press, 1990) 2–3, 15–16.
36
In Fraser, n 1 above, at xxxvii.
37
Sharpe, n 5 above, at 54.
38
his counsellors thought different. Legislation designed to counter the pressing

‘Danger of Papistical Practicies’, was rushed through Parliament. A judicial
inquiry, established by Lord Salisbury with the specific remit to contemplate the
necessity of a rather wider war designed to ‘exterminate’ the Jesuit terror, was in
place within days.39 A show-trial of captured plotters opened to audiences in
January 1606.
The chief protagonist, in both the inquiry and the subsequent trials, was Sir
Edward Coke, the Attorney General. Coke had the necessary experience, as well as
the new King’s favour; famously prosecuting the trials of the Earl of Essex in
1601, and more importantly, at least for James, Sir Walter Raleigh in 1603. Coke
could be relied upon to make sure that the show-trial was suitably dramatic. It
was the performance that interested James, not the issue of guilt or otherwise.
Not that there really was an otherwise. Three centuries later, Macaulay would
dismiss such jurisprudential theatrics as nothing more than judicial ‘murder
preceded by the uttering of certain gibberish and the performance of certain
mummeries’.40 James, intriguingly, attended the trials avidly, though doing so in
secret, seated behind a screen; an act of curious, and typical, dissimulation, and
not a little irony.
Coke did not disappoint. His address, he apologised in advance, would be
‘copious’, for the treason was indeed unparalleled, the extent of its evil intent, and
its failure, ‘divinely illuminated’ by God.41 And the ‘principle offenders’ in the
‘Powder Plot’, he was happy to confirm, were indeed ‘the seducing Jesuits; men
that used the reverence of religion, yea, even the most sacred and blessed name of
Jesus, as a mantle to cover their impiety, blasphemy, treason and rebellion, all
manner of wickedness’.42 Extracted confessions read out in court were obliging,
confirming the thrilling picture of a vast Jesuit plot to destroy the ‘chosen
people’.43
Whilst the intended destruction of Parliament and its members was startling
enough, it was the anticipated murder of the King which was so shocking.
Regicide was widely regarded, not just as a crime against nature, and God, but
also against the commonwealth itself. It was an act of self-immolation. Later,
Milton would argue that kings who prove to be ‘suttle’ dissimulators deserved to
be decapitated.44 But in early 1606, and with little fear of contradiction, Coke
could proclaim that the regicide countenanced by the Powder plotters was
amongst the ‘the greatest treasons that ever were plotted in England, and concern
the greatest King that ever was of England’. Good counter-terrorist rhetoric is
39
Ibid 305.
40
Ibid 263.
41
G Wills, Witches and Jesuits (Oxford, Oxford University Press, 1995), 14–16, 20–3, and Fraser, n
1 above, at 266–7.
42
For a commentary on Coke’s strategy and rhetoric, see Sharpe, n 5 above, at 70–2, and also
Fraser, n 1 above, at 262–6.
43
Ibid 268–70.
44
Milton, n 33 above, at 3.350–62.
192 Ian Ward
rarely undersold. The plot, Coke confirmed, intended a crime ‘sine exemplo,
beyond all examples, whether in fact or fiction, even of the tragick poets, who did
beat their wits to represent the most fearful and horrible murders’.45 In the murky
jurisprudence of terror, the relation of fact and fiction is never cleanly distin-
guished.
In short order, Parliament passed an Act for a ‘Public Thanksgiving to
Almighty God every Year on the Fifth Day of November’. The day, it was to later
prove, was peculiarly blessed. Eighty-three years later, on the fifth of November
1688, Prince William of Orange landed at Torbay, at the behest of the English
Parliament, in order to sweep away the resurrected spectre of a Popish king.46
Over a century later, Samuel Baker, preaching at York in 1745, and in anticipation
of a Stuart incursion into northern England, invoked memories of ‘the Fifth’. It
was, he declaimed, an act of ‘gloomy bigotry’ and ‘relentless popery’, and
presented to his audience a virtual history of the catastrophe, of the ‘severed
heads, mangled limbs, the torn bodies tossed and scattered in the air’, of the
‘distressed mother, the tender wife, pale and trembling, seeking for the sad
remains of son and husband’.47
Back in the Winter of 1605, unsurprisingly, the popular mood was peculiarly
susceptible to any amount of rhetorical fantasy. A poem of the time, ‘The Devil of
the Vault’, widely circulated, expressed the pervasive sense of apocalyptic terror
which the authorities were so keen to nurture:
So, dreadful, foul, chimera-like

My subject must appear:
The Heaven amaz’d and hell disturbed
The earth shall quake with fear.48
There was certainly much quaking, and much disturbance of heaven and hell, in
perhaps the most famous literary commentary on the Gunpowder Plot, William
Shakespeare’s Macbeth.49 Over the following centuries, performances of Macbeth
on ‘the Fifth’ provided a theatrical complement to the more formal thanksgiving
prescribed by Parliamentary statute. Pepys recorded attending one such perform-
ance in 1664.50
Macbeth was the first play Shakespeare completed in the months following the
abortive Plot.51 The relation between the two is well-established in Shakespearean
45
In Sharpe, n 5 above, at 72.
46
Ibid 102.
47
Ibid 6–7.
48
49
For this opinion, see Alan Sinfield, ‘Macbeth: History, Ideology and Intellectuals’ (1986) 28
Critical Quarterly 66.
50
It was, he noted, a ‘pretty good play’. See Sharpe, n 5 above, at 94.
51
The composition was clearly, to quote Antonia Fraser, ‘darkened by the shadow’ of the Plot. See
her Plot, n 1 above, at xiii.
studies; as is the dominant theme of religiosity.52 The subject of Shakespeare’s

own religious affinities remains a matter of controversy. On a personal level, he
was certainly brought up in a town renowned for the virulence of its religious
dissension.53 Classical Shakespearean scholars have tended to present ‘the Bard’ as
an avowed champion of the English Protestant poetic. Henry V is a paean to a
‘chosen people’ on crusade, a people whose very existence is defined by its
preparedness to cross the Channel and slaughter lots of Catholics. Richard III
famously closes with an appeal to a distinctively Anglican God, one that will
‘Smile’ again upon ‘God’s fair ordinance’. (5.5.29–34) So does the play that is
more commonly cited as Shakespeare’s last, Henry VIII. (5.4.17–20, 45–6). The
‘radical Christian’ Shakespeare, increasingly concerned with the doctrine of
suffering, is a variant on the classical crusading Shakespeare.54
A second, rather different Shakespeare, is the recusant Shakespeare; the Shake-
speare who, using a popular anti-recusant metaphor, was famously dismissed by
Henry Chettle in 1592, as an ‘upstart crow’.55 This is the Shakespeare described by
Ted Hughes as the ‘shaman’ of ‘old Catholicism’, whose recusant father is known
to have received a copy of Cardinal Borromeo’s notorious Spiritual Testament
from Edmund Campion at the Catesby family’s Lapworth House, and whose
mother hailed from the equally recusant Arden family.56 It is the Shakespeare
who is rumoured to have spent some of his youth with the recusant Hoghton
family in Lancashire, and then, on moving to London, is known to have oscillated
towards the Mermaid Tavern, an established haven for recusants with artistic
pretensions; the Shakespeare whose first patron, Lord Southampton, was himself
an acknowledged recusant.57 The evidence is, however, strikingly circumstantial,
and it is reasonable to suppose that if Shakespeare did retain Papist sympathies
they were of the conformable kind.58
And then there are the post-modern Shakespeares, those that insinuate a fatal
ambiguity that cuts across the entire corpus. This is the Shakespeare who fully
appreciated, even embraced, the innate capacity of language to nurture dissimu-
lation, who recognised that any textual politics is a necessarily ironic politics.59 It
52
Some critics argue that the Scottish setting was also intended to awaken memories of the earlier
Gowrie Plot in 1600. See A Clark, Murder Under Trust: the Topical Macbeth (Edinburgh, Scottish
Academic Press, 1981) 12 and 109–12, and also Wills, n 41 above, particularly at 27–9.
53
See Collinson, in 10 above, at 55.
54
See T McAlindon, ‘What is a Shakespearean Tragedy?’ in C McEachern (ed), Cambridge
Companion to Shakespeare (Cambridge University Press, 2002) 16–20.
55
The metaphorical affinity between Jesuits and ‘massing crows’ was well understood by contem-
poraries. The case for a recusant Shakespeare has been most recently argued by Richard Wilson, in his
Secret Shakespeare, n 2 above, at 11–13 and also 295–6.
56
T Hughes, Shakespeare and the Goddess of Complete Being (Faber and Faber, 1992) 86, 90. See
also Wilson, n 2 above, at 15–16, 34, and also 112, suggesting that attesting to Boromeo’s Testament
was the ‘equivalent of joining the Taliban’.
57
See Wilson, n 2 above, at 21–2, 44–8, 56, and also 117, referring in this context to Shakespeare’s
‘Catholic terrorist affiliations’.
58
See ibid ix, 4 and also 297.
59
J Bate, The Genius of Shakespeare (London, Picador, 1997) 7–8.
194 Ian Ward
is this Shakespeare who has his Archbishop in Henry V appraise the young king
precisely because he can ‘steal his sweet and honey’d sentences; / So that the art
and practic part of life / Must be the mistress to this rhetoric’. (1.1.50–2) All
Shakespeare’s princes, particularly the successful ones, are first and foremost
consummate actors.60 The dissimulating Shakespeare might be readily aligned
with the recusant Shakespeare; as the embittered puritan John Speed insinuated
as early as 1611, in his passing dismissal of Shakespeare, ‘This papist and this
poet, of like conscience for lies, the one ever feigning and the other ever falsifying
the truth’.61 There again, any dramatist dissimulates to some degree.
Shakespeare is famously evasive, and so are his plays. In one sense, the terror in
Macbeth is overt, and so is the terrorist. Macbeth is Shakespeare’s Catesby.62
Macduff ’s distress at his discovery of the body of the murdered King would
certainly have resonated:
O horror! horror! horror!

Tongue nor heart cannot conceive, nor name thee! (2.3.62–3)
Regicide, a breach of ‘absolute trust’, a most ‘sacrilegious Murther’ (1.4.13–14,

2.3.66), is a crime that almost defies description.63 But nothing in the rhyme and
rhetoric of terror and counter-terror is ever truly beyond description. In Macbeth
regicide leads, inexorably, to the immediate dissolution of the body politic, as well
as the mental disintegration, and finally physical destruction, of the guilty. As
Macbeth attests, the ‘infliction of these terrible dreams, / That shake us nightly’
are as one with the greater ‘frame of things disjoint’. (3.2.16, 18–19) Shakespeare’s
audience would have expected no less.64
In another sense, however, the terror is indeed evasive; an expression, as Russ
McDonald has suggested, of a compelling, if ‘fatal’, textual ‘ambiguity’.65 Here, the
Porter’s speech just prior to the discovery of Duncan’s body, is justly renowned.
Taking exception at such an urgent ‘knocking’ on his door, the Porter exclaims:
60
See I Ward, ‘A Kingdom for a Stage, Princes to Act: Shakespeare and the Art of Government’
(1997) 8 Law and Critique 141.
61
Speed’s insinuation should be placed within the context of the broader puritan antipathy
towards the theatre. See Wilson, n 2 above, at 5, and also 148–9; also J Knapp, Shakespeare’s Tribe:
Church, Nation, and Theater in Renaissance England (Chicago, Chicago University Press, 2002) 53,
169.
62
For an original suggestion of this affinity, see L Hotson, William Shakespeare (Jonathan Cape,
1937) vol I, 197–8.
63
Macbeth acknowledges precisely this. The King is sleeping under his roof ‘in double trust’,
Macbeth being his ‘kinsman and his subject’, and ‘his host’ (1.7.12–14). For a discussion of ‘trust’ in
the play, see A Hadfield, Shakespeare and Renaissance Politics (London, Routledge, 2004) 78.
64
It is quite likely that amongst the audience for the first performance would have been King
James himself. See A Kernan, Shakespeare, the King’s Playwright: Theater in the Stuart Court 1603–1613
(New Haven, Yale Uuniversity Press, 1995) 71–2.
65
R McDonald, ‘The Language of Tragedy’ in McEachern, n 54 above, at 46–7.
Here’s a farmer, that hang’d himself on th’ expectation of plenty: come in, time-pleaser;
have napkins enow about you; here you’ll sweat for it. Knock, knock. Who’s there, i’ th’
other devil’s name—Faith, here’s an equivocator, that could swear in both the scales
against either scale; who committed treason enough for God’s sake, yet could not
equivocate to heaven: O! come in equivocator. (2.3.4–13)
The speech is notoriously opaque. But allusions to Henry Garnet are unmistak-
able. The Jesuit Superior, who used the alias Farmer, is welcomed fresh from the
scaffold, carrying his ‘napkins’; items that he will certainly need as he sweats in
hell, but which carried a very different consonance in Catholic martyrology, so
often the bloodied relics of butchered priests.66 The subject of equivocation was
equally, and indelibly, associated with Garnet. The allusion to the Farmer who
‘could not equivocate to heaven’, carried a particular, and grim, resonance; at least
Garnet, it was joked at the time, would be ‘hanged without equivocation’.67
In his report on the ‘Powder Plot’, Coke spoke of the ‘perfidious and perjurious
equivocating’ of the conspirators; a practice encouraged in ‘certain heretical,
treasonable and damnable books’, including Garnet’s own treatise On Equivoca-
tion. For priests like Garnet, equivocation was justified by the unbreakable
sanctity of the confessional.68 As far as Coke was concerned, however, when it
came to dealing with Papists, a failure to tell the whole truth was tantamount to
‘open and broad lying and forswearing’, and should be treated as such. A priest
who knew, but declined to confess his knowledge, like Garnet, was just as guilty as
those who were found lurking in the cellars of Westminster. Coke spent much
time at Garnet’s trial painting a lurid picture of equivocating priests. Equivoca-
tion and dissimulation, he suggested, were the ‘bastard children’ of Popery.69
Equivocation has seduced Macbeth: first, in the person of his wife who propels
her husband to commit the most heinous of acts, and to do so by adopting
strategies of dissimulation:
Your face, my Thane, is as a book, where men

May read strange matters. To beguile the time,
Look like the time; bear welcome in your eye,
Your hand, your tongue: look like th’ innocent flower,
But be the serpent under ’t. (1.5.62–6)70
And secondly, in the form of the witches. The temptation to identify the ‘juggling
fiends’ (5.10.19), which Macbeth encounters upon the heath, with contemporary
66
See Wills, n 41 above, at 96–101, and Wilson, n 2 above, at 171, 172–4.
67
Comment attributed originally to Dudley Carleton, and cited in Fraser, n 1 above, at 315.
68
See P Zagorin, Ways of Lying: Dissimulation, Persecution and Conformity in Early Modern Europe
(Cambridge, MA, Harvard University Press, 1990) 14, and also Wilson, n 2 above, at 54–5 and Wills, n
41 above, at 93–6.
69
Fraser, n 1 above, at 311–13.
70
For the assertion that Lady Macbeth is depicted as a fourth witch, see Wills, n 41 above, at 80.
196 Ian Ward
Jesuit caricatures is itself seductive.71 The witches ‘fight against the / Churches’,
they treasure icons, such as the ‘pilot’s thumb’ (4.1.52–3), a clear allusion to the
notorious thumb of the martyred Campion, and indulge in satanic rituals, of the
kind which, in the febrile imagination of the time, were barely distinguished from
the shadowy masses conducted by closeted priests in country houses up and
down the country.72
And they play with language. Their sorcery is written in riddles. It is, as Hecate
affirms in her ‘angerly’ confrontation with the three witches in Act 3 scene 5, her
‘art’:
How did you dare

To trade and traffic with Macbeth,
In riddles, and affairs of death;
And I, the mistress of your charms,
The close contriver of all harms,
Was never call’d to bear my part,
Or show the glory of our art? (3.4.3–9)
It is her ‘magic sleights’ which, ‘Shall raise such artificial sprites, / As, by the
strength of the illusion’ (3.4.26–8) shall draw Macbeth to his ultimate demise. As
Macbeth begins to sense his own fate, he appreciates the irony of his seduction;
his own dissimulation founded on the impenetrable riddles of the witches. ‘I pull
in resolution’, he reflects, as Birnam wood does indeed appear to ‘come to
Dunsinane’, and ‘begin / To doubt th’ equivocation of the fiend / That lies like
truth’. (5.5.42–4) But it is too late to eschew dissimulation; at least it is for
Macbeth.
But not for Scotland, or by implication for Albion. The ‘special providence’
which pervades Hamlet’s Denmark is visited upon Scotland in the closing
scenes.73 Macduff recognises the ‘holy’ relation of the English Crown and ‘Him
above’ when he flees across the border (3.6.30, 32). Malcolm too puts his faith in
the ‘Angels’, leaving to God the question of a proper succession, and trusting in
the ‘Powers above’ to wreak a biblical vengeance upon the ‘Devilish Macbeth’
(4.3.22, 117, 120-–1, 238–9). Scotland will be saved ‘by the Grace of God’, and by
England (5.9.29–30, 38). And it is in ‘the great hand of God’ that Banquo places
himself (2.3.128). Of course, Banquo’s faith proves to be a little misplaced, at least
in the short run; an intimation of the chaos that might befall a people that God
forsakes. But in the end, it is God who saves Scotland, and Shakespeare would
have his audience surmise, Albion too. It is from Banquo’s line that King James
was said to trace his succession; a fantasy that James was, by all accounts, more
than happy to sustain.
71
See also Wilson, n 2 above, at 193–9, and Wills, n 41 above, at 35–7, 43–8.
72
For an account of the grisly history of Campion’s thumb, see Wilson, n 2 above, at 188–93.
73
For a discussion of this providence, arguing its Calvinist credentials, particularly in Hamlet, see
A Sinfield, ‘Hamlet’s Special Providence’ (1980) 33 Shakespeare Survey 89.
ON CRUSADE
The impact of ‘the Fifth’ upon the political imagination of early Jacobean
England was just as great as the impact of 9/11 has been on the political
imagination of early twenty-first century America. The similarities between the
anti-Jesuit hysteria of early seventeenth century England and our present
responses to the perceived threats of militant Islam are acute.74 Terror and faith
go hand in hand. One side in the present ‘war on terror’ certainly seems to think
so. According to bin Laden’s deputy, Ayman al-Zawahiri, the ‘love of death’ which
drives the Islamic ‘warrior’ is a ‘testament’ to the ‘fury for God’ which defines
jihad.75 In the words of one of the fathers of jihad, Abdullah Azzam, militant
Islam is ‘solely dependent on the ink of its scholars and the blood of its martyrs’,
such that ‘the map of Islamic history becomes coloured with two lines: one of
them black, with the ink of scholar’s pen; the other one red with the martyr’s
blood’.76
The other side, it might be hoped, would be rather more circumspect. Not so.
The immediate response to 9/11, particularly amongst members of the Bush
administration, was to confirm their engagement in a latter-day ‘war of religion’;
just as bin Laden and al-Zawahiri had hoped. The President’s rhetoric was
visceral. The ‘war on terror’, he announced in an early unguarded moment, would
be a ‘crusade’. Speech after speech closed with an injunction for prayer. A culture
of ‘suffering’ was invested, a rhetoric of ‘apocalyptic fundamentalism’ invoked.77
The spirit of Herman Melville walked again in the American consciousness. ‘We
Americans’, Melville had held a century before, ‘are the chosen people—the Israel
of our time; we bear the ark of the liberties of the world’.78
America went to ‘war on terror’ emboldened by the iconography of militant
Christianity.79 Much was made of a people being crucified, ‘suffering’ at the
74
See Wilson, n 2 above, at 7.
75
The literature on the place of a ‘cult of death’ within strains of Islamic political theology is
considerable. See P Rees, Dining with Terrorists (Basingstoke, Macmillan, 2005) 247–8; J Burke,
Al-Qaeda: the True Story of Radical Islam (Harmondsworth, Penguin, 2004) 32–5, and also M
Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh, Edinburgh University Press,
2005) 150; S Zizek, Welcome to the Desert of the Real (London, Verso, 2002) 141–2; W Lacqueur, No
End to War: Terrorism in the Twenty-First Century (New York, Continuum, 2004) 71–3, 85–7; and W
Sofsky, Violence: Terrorism, Genocide, War, (London, Granta, 2003) 95.
76
Quoted in M Ruthven, A Fury for God: The Islamist Attack on America (Harmonsworth,
Penguin, 2002)
203–4, who also confirms, at 208–9, the extent to which bin Laden sees himself as a protégé of Azzam.
77
See R Jackson, Writing the War on Terrorism (Manchester, Manchester University Press, 2005)
33–5, 103, 142–3, and Ruthven, n 76 above, at 32–3.
78
In Ruthven, n 76 above, at 33. See also B Barber, Fear’s Empire: War, Terrorism and Democracy
(New York, Norton, 2004) 67–70.
79
See G Achcar, The Clash of Barbarisms: the Making of the New World Disorder (London, Saqi.
2006) 28–9.
198 Ian Ward
hands of evil. The Blatant Beast was abroad again. False prophets were every-
where. There were lots in Afghanistan, and it transpired, rather conveniently, in
Iraq too. Needless to say, there were ‘at home’ too, as Attorney General Ashcroft
repeatedly advised, swarming across God’s own country and insinuating them-
selves in the homesteads of middle America.80 Secretary of State Powell noted
that, unlike the ‘chosen people’, these prophets, and their followers, had no real
‘faith’, and neither, by implication, did their followers. He, however, believed in
the right God, and so, he presumed, did his compatriots, or at least most of
them.81 General William Boykin, the man tasked to capture bin Laden, was just as
sure, reassuring his fellow supplicants at his Oregon church that theirs is a ‘real
God’, and a ‘bigger’ one too.82
The insinuation (and depictions of Islam have always, as Edward Said con-
firms, been matters of ‘insinuation’) was clear.83 Where God-fearing Christians
went to church, the false prophets of militant Islam were depicted scurrying
about from cave to cave indulging in all kinds of cultish rituals; just, indeed, as
Garnet’s Jesuits were portrayed as flitting from priest-hole to priest-hole, only
occasionally venturing into the light to administer all the horrors of the Popish
mass. God, as President Bush reassured his people, is not ‘neutral’.84 It was his
‘strong belief ’ that the cause for which America fought, the cause of freedom, was
the ‘Almighty’s gift’.85 The messianic rhetoric reached something of an apogee in
the President’s address at the National Cathedral in Washington, five days after
9/11. ‘God’s signs’, he declared, ‘are not always the ones we look for’. But 9/11 was
such a ‘sign’, a confirmation that America had a ‘responsibility to history’ to
‘answer these attacks and rid the world of evil’. It was a divine ‘calling’.86
The messianic tone is given centre-stage in David Hare’s Stuff Happens; a play
which, its author claims, is akin to a ‘Shakespearean tragedy’ precisely because it
is about the ultimately fatal consequences of profound political dishonesty.87
Hare’s Bush sees himself as God’s messenger, a latter-day crusader, or at least one
inclined to wave enthusiastically as he sends others on his behalf.88 The central
character in Stuff Happens never speaks; except, it appears, to George Bush. God,
Bush claims, ‘wants me to do it’. God, he repeats, as the play closes, ‘told me to
strike Al Qaeda’.89 Bush’s contempt for the law is rooted in a defining belief; that,
80
Jackson, n 77 above, at 112–13.
81
Ibid 68.
82
In D Rose, Guantanamo: America’s War on Human Rights (London, Faber and Faber, 2004)
138–9.
83
E Said, Orientalism (Harmondsworth, Penguin, 2003) 320.
84
Jackson, n 77 above, at 144, and also 146.
85
In Rees, n 75 above, at 368–9.
86
Jackson, n 77 above, at 143 and 145.
87
See Hare’s comments in the Guardian, 30 May 2006, 10, that the mark of political tragedy lies in
the ‘conflict between the politicians’ true intentions and their purported intentions’. Shakespeare, he
concludes, ‘tells us in plays like Macbeth that this scenario can never improve’.
88
D Hare, Stuff Happens (London, Faber and Faber, 2004) 17, 19.
89
Ibid 9–10, 15, 119.
as a latter-day prophet, he has the authority of a greater testament. The messianic

tone provides simplicity; the simplest expression of the pervasive delusion, the
simplest, and most troubling, justification for the abrogation of legal principle.
Hare closes his play with an Iraqi voice contemplating the ‘uncounted’ dead, and
lamenting a country that has been ‘crucified’.90 The irony is immediate. It finds an
apparently unwitting, but no less tragic, echo in Ashcroft’s declaration, again in
the months immediately following 9/11, that ‘Islam is a religion in which God
requires you to send your son to die for him. Christianity is a faith in which God
sends his son to die for you’.91 The true depth of the irony can perhaps only be
appreciated by the parents of those thousands who have since died in pursuit of
the ‘war on terror’ in Afghanistan and Iraq.
This rhetoric, of testament and crusade, is as reckless as it is ignorant and
perverse. Slavoj Zizek warns against ‘our warriors on terror’ seemingly ‘ready to
wreck their own democratic world’ out of a visceral ‘hatred for the Muslim
other’.92 He is right. There is little to be gained by situating Islam as an enemy,
just as there is little to be gained by constructing fantastical bogey-men.93 But we
continue to do so all the same. Islamophobia has become a hallmark of modern
Western popular culture, the image of the devious, rapacious, endemically violent
Islamic terrorist a staple of our cinematic and literary diet. Where the ‘chosen
people’ were once terrified by the dreaded Papist, they are now terrified by the
dreaded Islamic. It is a fear, as Edward Said suggests, that has, over the centuries,
become ‘woven into the fabric’ of Western cultural ‘life’.94 Here again, our craving
for terror, and to be terrified, seems to be unquenchable. We live, as Benjamin
Barber has rightly suggested, in an ‘empire of fear’, possessed of a terror that we
have essentially ‘conjured’ for ourselves.95
The mythology of al-Qaeda, and all its constituent mythologies, of suicide-
bombers and insurgents, fundamentalists and jihadists, is all-consuming. Set
within the broader heritage of orientalist fetish and prejudice, it raises ghostly
networks of highly trained Islamic terrorists, roaming, as President Bush was so
keen to advise us, the streets of London and New York.96 The reality, of course, is
rather different. On closer inspection, it is apparent that there are myriad
essentially autonomous Islamic terrorist groups, each grounded in particular
geopolitical contexts, each pursuing often radically different theological agendas.
What passes for ‘al-Qaeda’ is merely one loosely defined variant of political
Islamism, its projected leader, Osama bin Laden, one former mujahideen warlord
who, partly through his own strategic acumen, and partly through the naivety of
90
Ibid. 120.
91
In T Seto, ‘The Morality of Terrorism’ (200) 35 Loyola of Los Angeles L Rev 1261.
92
Zizek, n 75 above, at 84.
93
See Ahdaf Soueif, Mezzaterra: Fragments from the Common Ground (New York, Anchor, 2004)
19.
94
See Said, n 83 above, at 48–9, 59, 60–3, 94–5, 232–3.
95
See Barber, n 78 above, at 18, 33.
96
See Burke, n 75 above, at xxv.
200 Ian Ward
his pursuers, has acquired for himself an iconic status. Ultimately, the al-Qaeda
so cherished by our political leaders, and so much of our media, is essentially a
fantasy, a ‘mode of thinking’, a ‘discourse’; one that is sufficiently vague and
‘messy’ that it can be readily used and misused to suit.97
Of course, the iconic, fantastical image matters, hugely. In the manner of a
self-fulfilling prophesy, it lends a coherence to Islamist terrorism which would
not otherwise be readily discernible, whilst also nurturing the discourse of fear so
vital to the myriad wars which are currently engaged against terrorism, against
Taliban ‘mullahs’, Chechen ‘rebels’, Iraqi ‘insurgents’, and so on. It is a fundamen-
tal, if historically familiar, deceit. And it should trouble us. First, because the
raising of spectres does indeed fulfil prophesies. With each passing ‘war’, the
Islamic world becomes ever more radicalised, its youth ever more intent upon
embracing the ‘fury for God’.98 And secondly, because the constant weaving of
counter-terrorist mythology actually serves to detract from the need to address
the real threat that exists. If we pretend that there is an identifiable enemy, one
that might be defeated in a ‘war on terror’, our strategies to counter the terrorism
which we actually experience, at the hands of various disenchanted and largely
dislocated individuals and groups, will remain ineffective.99
The rhetoric of crusade has been more recently overlaid by a more prosaic
rhetoric of pre-emptive self-defence and weapons of mass destruction. But its
presence cannot be entirely despatched. It is raised, for instance, whenever
politicians start ruminating about the need to protect ‘our values’. Prime Minister
Blair seems to ruminate much upon this subject, as David Hare notes. His Blair,
in Stuff Happens, constantly strives to locate a moral justification for war, but
remains wary that a more blatant invocation of divine injunction, of the kind
declaimed by his American counterpart, is likely to be received with derision by
his own compatriots. Instead, he prefers to recast the ‘war against terror’ as a war
in defence of the ‘free and democratic world’ and, as such, a ‘moral duty’.100
The problem with invoking such a morality is obvious. It can very easily
transmute into talk about cultures and civilisations, and their presumed merits
and demerits, and their supposed clashes. Makua Matua argues that the ‘war on
terrorism’ is a thin mask for a war on ‘Islamic traditions and political projects’, the
realisation of the ‘them-and-us dialectic’ which underpins the project of moder-
nity.101 Tariq Ali likewise identifies the war as a simple expression of neo-liberal
‘imperialism’.102 The argument, which finds an original expression in the writing
97
Ibid 1–2, 10–14, 24.
98
Ibid 274–6, 284.
99
Ibid 15–16, 291.
100
Hare, n 88 above, at 18.
101
M Mutua, ‘Terrorism and Human Rights: Power, Culture and Subordination’ (2002) 8 Buffalo
Human Rights L Rev 2.
102
Tariq Ali, Babylon, at 3, 143, 155.
of Edward Said, is only too familiar.103 It finds contemporary sustenance in

Samuel Huntington’s notorious ‘clash of civilizations’ thesis.104 Gilbert Achcar’s
derivative ‘clash of barbarisms’ thesis is rooted in the same intellectual subsoil.105
Whilst there is indeed a danger that such prophecies will become self-fulfilling, it
must also be admitted that there does indeed seem to be something of a cultural
‘fault-line’ between the ‘West’ and Islam; one which, of course, a ‘war on terror’
will do little to stabilise.106
Ultimately, the presumed, or contested, acuity of the ‘clash’ of civilisations
thesis is less important than the insinuation. There may be no necessary associa-
tion between militant jihad and the philosophy or jurisprudence of Islam.107 It
may well be the mutant figment of an orientalist, even racist, political and
cultural imagination. But it does not need to be accurate or apposite. What
matters, sadly, is that so many are deluded by the supposition. Again, the
prophecy fulfils itself. On the one hand, there are plenty of disenchanted and
dispossessed young Muslims who are all too easily persuaded into thinking that
theology justifies terror. To them, bin-Laden’s rhetoric ‘makes sense’, in the same
way as Borromeo’s Testament impelled young Catholics such as Robert and
Thomas Catesby to risk their lives 400 years ago.108 On the other hand, there is a
‘Western’ populace that appears to be all too ready to embrace the rhetoric of the
apocalypse, to suppose that the ‘blatant Beast’ is abroad once more, to believe that
America and its allies have a moral duty, a divine calling even, one which justifies
the presence of their crusaders across vast tracts of the middle East, from Qom to
Kabul. The alternative fantasies, as is so often the case, are mutually sustaining.
They nurture the terror, and the tragedy.
On 5 November 1753, another Garnett, no relation of the unfortunate Henry,
John Garnett, Bishop of Ferns and Leiglin, preached a sermon at Christ Church,
Dublin. It was, of course, in commemoration of the peculiarly wedded ‘anniver-
sary of the Gunpowder Plot and of the happy arrival of King William III’.
Anticipating the emergence of a nascent Enlightenment, and embracing ‘the
cultivation of the liberal arts and sciences’, he concluded with the impassioned
hope that ‘the Christian world at length will be right rid of crusades and
pilgrimages, those quixoticisms in religious chivalry’, and, with them, the ‘pious
solecism in holy-church politiks’ which, for so long, had nurtured the associated
103
See Said, n 83 above, particularly at xiii, 1–3, 12, 43, 52, 201–4, 319–20, and also Power, Politics
and Culture (Bloomsbury, 2005) 242–3 and 388–92.
104
See S Huntingdon, The Clash of Civilizations and the Remaking of World Order (Simon and
Schuster, 1997) 129–21, 28, 248–52.
105
Achcar, n 79 above, at 84.
106
Ruthven, n 76 above, at 240–3, and Huntingdon, n 104 above, at 252–4, 281–91.
107
N Feldman, After Jihad: America and the Struggle for Islamic Democracy (Farrar, Straus and
Giroux, 2003) 6–7, 20–1, 62–3, 75–6, 232–4. See also Ruthven, n 76 above, at 48, and Barber, n 78
above, at 202–3.
108
See Rees, n 75 above, at 338–43 and 370–1, and also Barber, n 78 above, at 24, and Wilson, n 2
above, at 136.
202 Ian Ward
mythologies of holy war. Such infantile rhetoric, and infantile theology, must, he
predicted, ‘be now no more’.109 Sadly, it seems, not quite yet.
109
In Sharpe, n 5 above, at 112.
13
‘Terras Astraea reliquit’: Titus
Andronicus and the Loss of Justice
PAUL RAFFIELD
LAW, JUSTICE AND THE EXERCISE OF

EXECUTIVE POWER
T IS AN irony that would not have been lost on Shakespeare that

the theatre at which his tragedy, Titus Andronicus, was originally
staged should have been the subject of juridical proceedings
between law-maker and citizen, nearly 400 years after the play’s first performance
there in 1594.1 Subsequent to the discovery in 1989 of the remains of the
Elizabethan Rose Theatre, a trust was formed whose purpose was to save the site
of the theatre from development as an office block.2 The Rose Theatre Trust
applied to the Secretary of State for the Environment to have the property listed
under the Ancient Monuments and Archaeological Areas Act 1979, section1.
Following the refusal of the Secretary of State to list the site, the Trust was
granted leave to apply for judicial review of the decision. The application for
review was turned down on the grounds of insufficient standing: the party
seeking judicial review of an administrative decision did not have sufficient
interest in the subject matter for which review was being sought.3 The case raised
an important constitutional issue, concerning the right of aggrieved citizens to
obtain a hearing in the courts. The decision appeared at least to raise doubts
1
A convincing argument for this date is provided by Jonathan Bate in the Arden edition of the
play: Titus Andronicus (Jonathan Bate (ed), London, Arden, 1995) Introduction, 69–79. All references
to the play are from this edition.
2
There is a useful history of the Rose Theatre, and the legal struggle to preserve its remains, in
Christine Eccles, The Rose Theatre (London, Nick Hern, 1990).
3
R v Secretary of State for the Environment, ex parte Rose Theatre Trust Ltd [1990] 1 QB 504.
204 Paul Raffield
about the applicability of Dicey’s dictum that the rule of law requires that
disputes over the legality of government acts should be decided by the courts,
acting independently of the executive.4
In the torrent of blood that engulfs the action of Titus Andronicus, it is often
forgotten (by audiences and critics alike)5 that the play is concerned to a great
extent with the dire effects on the citizenry of absolute governance by an
autocratic law-maker. The bloody plot is initiated by the infelicitous choice of
ruler, to succeed the recently deceased emperor. Titus is the popular candidate
but he implores the Roman citizens to defer to the ancient principle of primo-
geniture and accept Saturninus as their legitimate ruler (1.1.227–33). A period of
unjust imperial rule is subsequently enacted, in which every arbitrary whim of
the Emperor is accorded paramount legal status. The equitable principles of
common law, encapsulated by the medieval jurist Henry de Bracton in the
phrase, lex facit regem (‘law makes the king’),6 are rejected in favour of the
civilian maxim, quod principi placuit vigorem legis habet (‘that which pleases the
prince has the force of law’). The reign of Saturninus reflects the central tenet of
Tudor imperial monarchy (following the Acts of Supremacy of 1534 and 1559)
that the king is under God but not law, because the king makes the law.
The inherent injustice of the civilian code is perhaps best exemplified in the
play by the execution of the Clown, at the instruction of the Emperor, Saturni-
nus. His only offence had been to deliver a letter from Titus to the Emperor
(4.4.39–48). Critics have expressed their dissatisfaction at the summary manner
in which the Clown is dispatched to the gallows. RA Foakes interprets the
execution of the Clown as an example of the author’s desire to shock: a
representation of gratuitous violence, which Foakes believes to be a characteristic
fault of the play.7 Francis Barker makes the important observation that before
meeting Titus and receiving his petition for justice, which he agrees to deliver to
the Emperor, the Clown was already on his way to the tribuni plebis, in their
judicial capacity as magistrates, to adjudicate over a legal dispute, ‘betwixt my
uncle and one of the emperial’s men’. (4.3.91–3)8 As so often in the play, law and
legal procedure are placed in the narrative foreground of a particular scene.9
Having identified the theme of reasonable access to justice, Barker subsequently
4
AV Dicey, Introduction to the Study of the Law of the Constitution (London, Macmillan, 1959)
193.
5
Possibly the first recorded criticism of the play is included in a letter home, written in 1596 by a
French tutor in the household of Sir John Harington: ‘le monstre a plus valu que le sujet’, quoted in
RA Foakes, Shakespeare and Violence (Cambridge, Cambridge University Press, 2003) 56.
6
Henry de Bracton, De Legibus et consuetudinibus Angliae (SE Thorne (trans), 4 vols, Cambridge,
MA, Harvard University Press, 1968−77).
7
Foakes, n 5 above, at 56, 57.
8
Francis Barker, The Culture of Violence: Essays on Tragedy and History (Manchester, Manchester
9
See eg, Act 3 scene 1, in which the judges process past Titus, ignoring his pleas to ‘reverse the
doom of death’ on Quintus and Martius (3.1.24).
Titus Andronicus and the Loss of Justice 205
finds the decision to hang the Clown ‘inexplicable’, ‘arbitrary’ and ‘strange’.10 By
providing no reason for the Emperor’s decision,11 Shakespeare demonstrates the
inherent injustice of imperial rule. It is the very arbitrariness of the action that
Shakespeare emphasises, in allowing Saturninus not a moment’s reflection before
condemning the Clown to death. The scene is inexplicable and strange only if it is
forgotten that in the 1590s, the equitable principles of common law ideology
were often blatantly ignored by the prerogative courts, notably by the Court of
High Commission.
It would be far-fetched in the extreme to compare the decision taken by the
Secretary of State for the Environment, concerning the remains of the Rose
Theatre, with the tyrannical rule of a fictional Roman emperor. The most that
might be argued by way of analogy is that in both instances, one of the principles
of natural justice was eschewed, as the law did not allow its subjects recourse to
independent arbitration by an impartial tribunal. The legitimacy of the unre-
stricted actions of an omnipotent executive is a theme that weaves its labyrin-
thine path through the numerous, graphic murders and mutilations of Titus
Andronicus. From a constitutional perspective, the absence of any institutional
structure, with which to restrain the conduct of Saturninus, poses the obvious
questions: first, does the person of the emperor embody the law, and if so, are
there any lawful limits to his power? Secondly, if he is not the embodiment of law,
but rather a symbol of unity and nationhood (in the words of Sir Edward Coke, ‘a
hieroglyphic of the laws’)12 where does the law exist that can restrain his unlawful
acts? Comparisons between the imperious conduct of Saturninus and the Imper-
ium of the post-Henrician Tudor monarchs were inevitably to be drawn by
contemporaries of Shakespeare. As Thomas Heywood observed, ‘If wee present a
forreigne History, the subject is so intended, that in the lives of Romans, Grecians,
or others, either the vertues of our Country-men are extolled, or their vices
reproved’.13
It is the purpose of this chapter to consider the constitutional significance of
Titus Andronicus, in the historical context of the last decade of Elizabethan rule.
There are three broad themes that I consider. The first is the reaction of those
writers of the early modern period who, faithful to the equitable principles of the
common law and the ancient constitution, opposed the increasing autocracy of
10
Barker, n 8 above, at 168.
11
Richard Wilson argues that the scene was possibly based on a petition for freedom of religion,
drafted by the Catholic Viscount Montague in 1585, and ‘thrust into the Queen’s hand’ as she walked
in Greenwich Park. The petitioner was subsequently imprisoned by Walsingham, and died a prisoner:
Richard Wilson, Secret Shakespeare: Studies in Theatre, Religion and Resistance (Manchester University
Press, 2004) 30.
12
Edward Coke, ‘Postnati. Calvin’s Case’ in Part 7 (1608) of The Reports of Sir Edward Coke, Knt in
English (George Wilson (ed), London, Rivington, 1777) vol IV, 11b.
13
Thomas Heywood, An Apology for Actors (London, N Okes, 1612) sig F3.
206 Paul Raffield
government during the 1590s, expressing a preference instead for limited monar-
chy.14 Act 1 of Titus Andronicus is largely concerned with the succession to the
imperial throne, and would undoubtedly have had contemporary resonances in
Elizabethan England, as the heirless Queen approached the end of her life.
Jonathan Bate describes Titus Andronicus as a ‘descent into imperial tyranny’,15
reflecting speculation about an uncertain future once Elizabeth had died. It
might be added that the descent into tyranny had begun during the last decade of
Elizabethan imperial rule, as the jurisdiction of the prerogative courts threatened
to supersede that of the courts of common law. The existence of an unwritten
law, superior in authority to imperial edict, is a theme that not only resonates
throughout the play; but also underscores The Reports of Sir Edward Coke, which
he was compiling during the 1590s. Coke equated the supreme judicial authority
of common law with the divine provenance of natural law; of which common law
was the rational, earthly manifestation. The failure of natural law to redress the
shortcomings of imperial law is a significant theme of Titus Andronicus, and one
that I consider here in the context of Coke’s belief that law is unerring reason,
adhering to a divine purpose.16
I analyse next the motifs of musical harmony and discord, which provide
important aural images throughout the play. I relate these metaphors to the
Platonic notion of order (kosmos) as a symbol of perfection (areté); the achieve-
ment of which, in the state or in the individual, depends upon the correct
ordering of parts and the performance by each part of its allotted function.17 The
correlation between order, justice and harmony is emphasised and the distinction
drawn between unjust imperial edict (lex) on the one hand, and equitable,
unwritten lex terrae (ius) on the other.
Finally, I consider the symbolic importance of ancient Rome to the develop-
ment in England of a body of literature that might loosely be termed republican
in nature. Livy’s Roman History and Plutarch’s Lives were synthesised by Shake-
speare in order to depict an archetypal state that was recognisably Roman in its
political structure, but not of a specific period in ancient Roman history. The
story of the destruction of Troy, its resurrection in Rome (for which Virgil’s
Aeneid provided most of the source material), and its re-emergence in London as
14
The first extensive treatise on the benefits to English subjects of limited monarchy was Sir John
Fortescue, Difference between an Absolute and Limited Monarchy (c 1471), published asThe Governance
of England (C Plummer (ed), Oxford, Clarendon, 1885).
15
Titus Andronicus, n 1 above, Introduction, at 21.
16
Lex est certa ratio e mente divina manans: title page to Part 1 (1600) of Coke, The Reports, n 12
above. On Coke, natural law and the influence of classical jurisprudence over the substantive
development of English common law in the early seventeenth century, see Paul Raffield, ‘Contract,
Classicism, and the Common-Weal: Coke’s Reports and the Foundations of the Modern English
Constitution’ (2005) 17 Law and Literature 69.
17
Plato, The Republic, Book 4, 427D–434C, 441C–445B.
Troynovant is a literary device that was employed by Elizabethan poets, drama-

tists and common lawyers, as a means of establishing the ancient credentials of
the English state and English common law.
FIN DE SIÈCLE IMPERIAL GOVERNMENT AND

THE COMMON LAW
In a scene of almost unbearable pathos, before his petitions for justice are shot
into the heavens, Titus informs his brother Marcus that Astraea (the goddess of
justice) has left the earth:
Terras Astraea reliquit: be you remembered, Marcus,

She’s gone, she’s fled. Sirs, take you to your tools.
You, cousins, shall go sound the ocean
And cast your nets:
Happily you may catch her in the sea;
Yet there’s as little justice as at land. (4.3.4–9)18
The image of the virgin goddess of justice, fleeing the wickedness of mankind to
attain iconic status in the heavens as the constellation, Virgo (drawn from Book I
of Ovid’s Metamorphoses), was one of the most daring contemporary allusions
that Shakespeare incorporated into any of his plays. As Bate has noted, ‘Queen
Elizabeth was mythologised as the returned Astraea of Virgil’s fourth eclogue’.19
Astraea was so thoroughly associated in the Elizabethan mind with the person
of the Queen that any suggestion that the goddess of justice had abandoned the
world was potentially disquieting.20 Titus Andronicus was by no means the first
dramatic work to represent public concerns about the successor to Elizabeth I. As
early in her reign as January 1561, the Inner Temple had presented, in the
presence of the Queen, The Tragedy of Ferrex and Porrex (also known as The
Tragedy of Gorboduc), by Thomas Norton and Thomas Sackville. The play is of
great literary interest, as it was the first full-length dramatic work to be written in
blank verse. Dramatists were awakening to the suggestive power of the poetic
form and its capacity to transmit political metaphors to a receptive audience. In
The Defence of Poetry, Sir Philip Sidney refers to the ‘wholesome Iambic, who
rubs the galled mind, in making shame the trumpet of villainy, with bold and
18
The pathos is heightened by the tragic-comic spectacle of the one-handed Titus distributing
arrows to his family members and instructing them to ‘loose when I bid’ (4.3.59). Barker refers
accurately to ‘nervous and uncomfortable laughter’, which the play ‘has both engendered and
received’, n 8 above, at 167.
19
Titus Andronicus, n 1 above, Introduction, 28.
20
See especially, Frances A Yates, Astraea: the Imperial Theme in the Sixteenth Century (London,
Routledge and Kegan Paul, 1975) 75–80.
208 Paul Raffield
open crying out against naughtiness’.21 Sidney is especially astute in his assess-
ment of tragic drama and its unique capacity to embody jurisprudential and
political ideals such as justice, equity and liberty; and their antitheses: tyranny,
inequality and oppression. Sidney himself employs two popular poetic images,
the anatomical and the architectural (both of which were used extensively by
Shakespeare, in Titus Andronicus), to argue that ‘Tragedy, that openeth the
greatest wounds, and showeth forth the ulcers that are covered with tissue; that
maketh kings fear to be tyrants, and tyrants manifest their tyrannical humours;
that, with stirring the affects of admiration and commiseration, teacheth the
uncertainty of this world, and upon how weak foundations gilden roofs are
builded’.22
Ferrex and Porrex depicts the terrible consequences of a misguided succession,
which left ‘the land for a long time almost desolate and miserably wasted’.23 More
than 30 years after the Inner Temple’s performance of Ferrex and Porrex, at the
first performance of Titus Andronicus, a debate over the correct form that the
succession should take provides much of the dialogue in the opening scene, when
Saturninus and Bassianus lay claim to the imperial throne. But more closely
linked to the themes of the play, and to the polity of Elizabethan and post-
Elizabethan England, is the issue of the form that governance would take, once
the issue of the succession had been decided. Indissolubly associated with the
particular form of governance are the effects on the constitutional structure of
the state and the lives of individual citizens.
The 1534 Act of Supremacy (26 Hen 8, c 1) had the immediate effect of
severing English jurisdiction from that of Rome, thereby arrogating to the Crown
unrestricted imperial power. Henry VIII annexed all the necessary jurisdictions
with which to fulfil his imperial claims. The idea that the monarch was under
God but not law was axiomatic of Henrician rule. It ran counter to Fortescue’s
theory of mixed monarchy, which was predicated upon the existence of
dominium politicum et regale.24 As John Guy has noted, the success of Henrician
government ensured the enhancement of regale at the expense of politicum.25 The
21
Sir Philip Sidney, ‘The Defence of Poetry’ in Sir Philip Sidney: the Major Works (Katherine
Duncan-Jones, Oxford University Press, 2002) 212–50 at 229. It is noteworthy in the political context
of Gorboduc that Thomas Norton became a notorious persecutor and state-torturer of Catholics, and
was known as ‘Rackmaster’ Norton. See Michael AR Graves, Thomas Norton: the Parliament Man
(Oxford, Blackwell, 1994). For the argument that Gorboduc ‘was probably a source for Titus
Andronicus’, see Dympna Callaghan and Chris R Kyle, ‘The Wilde Side of Justice in Early Modern
England and Titus Andronicus’ in Constance Jordan and Karen Cunningham (eds), The Law in
Shakespeare (Basingstoke, Palgrave Macmillan, 2007) 38–57, at 41.
22
Sidney, Major Works, n 21 above, at 230.
23
Thomas Norton and Thomas Sackville, The Tragedie of Ferrex and Porrex shewed on stage before
the Queenes Maiestie…the xviii day of Ianuarie 1561, by the gentlemen of the Inner Temple (London, J
Daye, 1570) ‘The argument of the Tragedie’, f A1. The political symbolism of Ferrex and Porrex is
discussed in Paul Raffield, Images and Cultures of Law in Early Modern England: Justice and Political
Power, 1558–1660 (Cambridge, Cambridge University Press, 2004) 127–31.
24
Fortescue, n 14 above, at 109.
25
John Guy, Tudor England (Oxford, Oxford University Press, 1990) 13.
imperial theory of kingship was compatible neither with the equitable principles
of justice that were espoused by Christopher St German in Doctor and Student,26
nor indeed with the works of humanist writers, such as Thomas Elyot, whose
political theories were heavily influenced by Aristotelian ideals of civic republi-
canism. The absolute Imperium of the monarch was implicitly criticised in Elyot’s
description of the perfect commonwealth, which he characterised as ‘disposed by
the order of equity and governed by the rule and moderation of reason’.27
The 1559 Act of Supremacy (1 Eliz, c 1) affirmed the divine provenance of
Elizabethan supremacy, in relation to which Parliament was to play the subsidiary
role of a legislative instrument: the institutional manifestation of the royal
prerogative.28 Conscious of the potentially unrestricted political power with
which the theory of divine right endowed the monarch, the Elizabethan cleric
(and Master of the Temple), Richard Hooker, reiterated Bracton’s dictum that
‘The axioms of our regal government are these: “Lex facit regem”’.29 Elizabeth had
from the start of her reign laid particular emphasis on the extensive powers of the
royal prerogative. Fear of invasion from abroad and rebellion from within led, in
the last decade of Elizabethan rule, to its more expansive employment. The
constitutional implications of fin de siècle imperial rule became most apparent as
the Court of High Commission, under the leadership of Bishop Aylmer, sup-
planted the jurisdiction of the courts of common law in ecclesiastical causes.
Notoriously, the ex officio mero prosecutions of High Commission had an
historical basis in Roman canon law, the jurisdiction of which had been severely
limited by the Act of Supremacy of 1534. In procedural terms, the Courts of High
Commission were inquisitory, compelling defendants (on oath) to answer ques-
tions that were put to them by ecclesiastical adjudicators.
The fundamental question, concerning the limits (if any) to the imperial
power of the Queen, was raised in Cawdrey’s Case in 1591, as recorded by Coke in
Part 5 of The Reports. The case concerned the deprivation of a minister’s benefice
by the Court of High Commission. The exercise of the royal prerogative, which
authorised the arbitrary powers of High Commission and its civilian officials,
was justified on the grounds that ‘by the ancient laws of this realm, this kingdom
of England is an absolute empire and monarchy’.30 The 1559 Act of Supremacy
conferred upon the Queen, the ‘power to assign commissioners to exercise and
26
On St German and the constitutional sovereignty of the common law, see John Guy, ‘The Battle
of the Books’ in Reassessing the Henrician Age: Humanism, Politics and Reform, 1500–1550 (Oxford,
Blackwell, 1986) 100–19; see also John Guy, Christopher St German on Chancery and Statute (London,
Selden Society, 1985).
27
Thomas Elyot, The Book Named the Governor (London, Dent, 1962) 1.
28
On Elizabethan Parliaments and the royal prerogative, see John Guy, ‘The Elizabethan Estab-
lishment and the Ecclesiastical Polity’ in The Reign of Elizabeth I: Court and Culture in the Last Decade
(John Guy (ed), Cambridge, Cambridge University Press, 1995) 126–49, at 133–6.
29
Richard Hooker, Of the Laws of Ecclesiastical Polity (AS McGrade (ed), Cambridge, Cambridge
30
Coke, ‘Caudrey’s Case. Of the King’s Ecclesiastical Law’ in Part 5 of The Reports, n 12 above, vol
III, viiib. The constitutional implications of the case are discussed in Guy, n 28 above, at 131–2.
210 Paul Raffield
execute all manner of jurisdiction spiritual, to visit, reform, &c. all schism and
heresy, &c. and enormities’.31 Coke argued, contrary to the notion of unlimited
imperial power, that ‘the construction of ’ the above statute ‘belongs to temporal
Judges’.32 Coke’s intransigent stance on this issue was a principled response to the
constitutional implications of the power vested in High Commission.
The civilians sought for themselves the exclusive right to decide what consti-
tuted an ecclesiastical cause in any particular case. Also, they exercised the power
of imprisonment over a range of offences that were of only peripheral ecclesias-
tical interest, for example, for non-payment of tithes or, as in Sir Anthony Roper’s
Case, ‘for a pension out of a rectory impropriate, of which Sir Anthony was seised
in fee’.33 Coke sought to assign to High Commission a limited role of discussion
and declaration on metaphysical issues, leaving the courts of common law to
resolve matters that were traditionally within their jurisdiction; notably, in the
area of disputes concerning property, and temporal constitutional issues such as
imprisonment of subjects. Coke was adamant that High Commission had no
lawful authority to ‘confound the jurisdiction of the Ordinary’.34 The strong
implication of Coke’s interpretation of judicial decisions in these cases is that the
power of High Commission was arbitrary and irrational. In relation to these
powers, Coke states ‘that it was good for the weal public, that the Judges of the
common law should interpret the statutes, and acts of Parliament within this
realm’.35 In other words, the common law judiciary was the supreme constitu-
tional arbiter and interpreter of legislative intent. By drawing attention to the
good of the ‘common weal’, Coke not only tacitly approves the republican
principle, salus populi suprema lex est;36 implicit also in the above comments is
Coke’s belief in the constitutional supremacy of common law and the hegemony
of common lawyers.
The concerns expressed by Coke in relation to the tyrannical implications of
imperial rule are echoed by Shakespeare in Titus Andronicus. Both writers
employed powerful imagery in order to convey uniquely the nature of govern-
ance and its relationship to the lives of citizens within the early modern English
state. As Allen D Boyer noted in his study of Coke and the Elizabethan era, ‘What
Shakespeare has been to those who write in English, Sir Edward Coke has been to
the lawyers of the English-speaking world’.37 Coke was no dramatist, and was less
than well-disposed towards the theatre and its practitioners. In a speech, deliv-
ered to the grand jury at the assizes in Norwich in 1606, he gave the following
31
Quoted in Coke, ‘Sir Anthony Roper’s Case’ in Part 12 of The Reports, n 12 above, vol VII, 46b.
32
Ibid ‘Nicholas Fuller’s Case’, 42a.
33
Ibid ‘Sir Anthony Roper’s Case’, 46b.
34
Ibid 47a.
35
Ibid 85a–85b.
36
In Part 10 of The Reports, n 12 above, Coke explicitly states that ‘the reason thereof is pro bono
publico, for salus populi is suprema lex’, vol V, 139b.
37
Allen D Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, Stanford University Press,
2003) Preface, ix.
helpful advice: ‘The abuse of stage players, wherewith I find the countrey much
troubled, may easily be reformed: they having no commission to play in any place
without leave: and therefore if by your willingnesse they be not entertained, you
may soone be rid of them’.38 His antipathy towards actors did not dissuade Coke
from using identical imagery to that employed by Shakespeare in order to
represent the equitable social contract that he believed should characterise the
constitutional relationship between magistrate and subject of law. Coke’s insist-
ence that ‘As the ligatures or strings do knit together the joints of all the parts of
the body, so doth ligeance join together the Sovereign and all his subjects’ bears a
striking stylistic resemblance to the anatomical metaphors that are enlisted by
Menenius, in order to describe the body-politic to the rebellious citizenry in
Coriolanus.39
Bate is alert to the legal and historical context in which Titus Andronicus
situates the common law principle of precedent, noting the use by Titus of ‘the
language of the law’ in the final scene of the play.40 Through the systematic
reporting of the ratio decidendi of contemporary cases (however subjective and
opinionated that reporting undoubtedly was), and his emphasis on the antiquity
of common law and the legitimacy that its immemorial nature conferred on the
decisions of its judges, Coke elevated the binding power of precedent to hitherto
unknown levels. Kevin Sharpe makes the important observation that the synthe-
sis between past and present gave to history an exalted status in the governance of
early modern English society.41 If, as Bate suggests, Titus is ‘a dramatic antecedent
to Sir Edward Coke’,42 his solitary quest for justice and equitable governance
marks him out also as the dramatic descendant of the Lancastrian Chief Justice
and apologist for the constitutional supremacy of common law, Sir John Fortes-
cue. In The Governance of England, Fortescue asserts that under dominium
politicum et regale (which he claims provides the English constitutional model), a
‘kynge may not rule his peple bi other lawes than such as thai assenten unto’.43 As
Alan Cromartie has remarked, Fortescue’s office as Chief Justice under Henry VI
provided ‘unimpeachable authority … for a range of near-republican opinions’.44
As Cromartie also notes, and of particular relevance to the initiation of the plot
38
Sir Edward Coke, A Charge Delivered to the Grand Jury at the Assizes Holden at Norwich, 4th
August, 1606; Containing a Just Delineation of Popery (London, JJ Stockdale, 1813) 53.
39
Coke, ‘Postnati. Calvin’s Case’ in Part 7 of The Reports, n 12 above, vol IV, 4b; Coriolanus,
1.1.94–161. For a detailed analysis of Coke’s use of anatomical imagery in Calvin’s Case, see Raffield,
‘Contract, Classicism and the Common-Weal’, n 16 above, at 79–82.
40
41
Kevin Sharpe, Politics and Ideas in Early Stuart England (London, Pinter Publishing, 1989)
174–81.
42
43
Fortescue, n 14 above, at 109.
44
Alan Cromartie, The Constitutionalist Revolution: an Essay on the History of England, 1450–1642
(Cambridge, Cambridge University Press, 2006) 21.
212 Paul Raffield
in Titus Andronicus, Fortescue served the House of Lancaster, the lives of whose
members depended upon the successful claim of King Henry VI to the lawful
succession.45
ORDER, HARMONY AND MUSICALITY
Titus claims that justice, in the form of the goddess Astraea, has fled the earth.
The Andronici fire their shafts into the heavens; attached to each arrow an
injunction to the gods from Titus, enjoining them ‘To send down Justice’. (4.3.52)
It is instructive briefly to consider the philosophical and juristic distinction
between justice and law, as this distinction characterises the political polarity that
engenders the personal animosity between Saturninus and Titus. Saturninus, the
imperial law-maker, is uncomprehending when he reads the contents of Titus’s
divine injunctions. It appears that he is devoid of any ironic intent, when he
remarks of Titus’s arrows that: ‘A goodly humour, is it not, my lords? / As who
would say, in Rome no justice were’. (4.4.19–20)
The representation of justice can be traced to pre-Roman and, indeed, to
pre-Hellenic antiquity. Common to all these depictions of the goddess of justice
is her femininity. For the ancient Egyptians, she was known as Ma’at, and was
usually portrayed holding a sword and wearing an ostrich feather in her hair. The
Roman goddess, Justitia, is probably the most familiar representation: usually
portrayed as holding balanced scales in one hand, a sword in the other, and
wearing a blindfold. The Digest of Justinian confirms the feminine association,
stating that law is the queen of all things divine and human (Lex est omnium
divinarum humanarumque rerum regina, The Digest, 1.3.2).46 But it is the Greek
goddess of justice, Themis, who represents most clearly the ideals of equity,
community and consent, to which the juristic principles of Fortescue, St German
and Coke are traceable.47 Of great significance to the semiotics of legal iconogra-
phy, unlike Justitia (her Roman counterpart), Themis was never depicted holding
a sword: consent rather than coercion was her preferred form of governance.48
For Plato, justice was only one of the four cardinal virtues which the ideal state,
described by him in The Republic, must possess (the others being wisdom,
courage and discipline).49 Plato’s concept of dikaiosunê (justice) was not legalis-
tic; as Alasdair Macintyre has argued, dikaiosunê was concerned with ‘allocating
45
Ibid.
46
On the historical importance of the effigy or statue in legal iconology, see Peter Goodrich,
Oedipus Lex: Psychoanalysis, History, Law (Los Angeles, University of California Press, 1985) 108–15.
47
John Selden, the early modern jurist and legal antiquarian, refers to ‘the Lady Common Law’ in
Titles of Honour (London, W Stansby, 1614) f a3b.
48
On the mythological background of Themis, and her distinction from Dike (princess of
justice), see Cathleen Burnett, ‘Justice, Myth and Symbol’ (1987) 11 Legal Studies Forum 79.
49
Plato, The Republic (Desmond Lee (trans), London, Penguin, 1987) 137, Book 4, 427d–434d.
each part of the soul its particular function: sometimes translated as “justice”’.50
Plato’s idea of justice is inextricably linked to the notion of harmonious relations
between the state and the individual, and between fellow citizens of the state.
Roman justitia was concerned with formal, legal relations; whereas Greek dikaio-
sunê implied the ideal good of society, across a wide range of collective existence,
not merely in terms of laws and their application.
The theme of harmonious relations between governor and governed is central
to Plato’s depiction of the state. He insists that justice should establish in the
minds of all citizens, a ‘natural relation of control and subordination’,51 and that
dikaiosunê regulates the functions of the other three virtues, ‘keeping all three in
tune, like the notes of a scale’.52 The Greek nomos means both ‘tune’ and ‘law’, and
as Trevor J Saunders notes, Plato employed the pun on nomos throughout The
Laws, for example, in his assertion that ‘After the prelude [the preliminary
analysis of the state] should come the “tune”, or more accurately a sketch of a
legal and political framework’.53 The relationship between musical harmony and
the making of good laws is a recurring theme throughout The Laws. Writing
about the legal regulation of music in the Athenian democracy, Plato describes a
‘kind of song too, which they thought of as a separate class, and the name they
gave it was this very word that is so often on our lips: “nomes” (“for the lyre”, as
they always added)’.54 The association of the lyre with the harmonious govern-
ance of society was first recorded in the myth of Orpheus, and remained a central
image in the iconography of common law during the early modern period.
The musical metaphor of the stringed instrument was employed by the
Elizabethan divine, Richard Hooker, with reference to the nature of kingship. In
Of the Laws of Ecclesiastical Polity, Hooker aligns Christian theology with an
Aristotelian model of community.55 The co-existence of church and state is a
central tenet of Hooker’s communitarian ethos. In the ideal commonwealth that
Hooker describes, the monarch is the unifying figure that links the church in an
indivisible bond with the people. Crucially, the subject of power in Hooker’s
commonwealth is not the monarch in person, but the ‘body of the common-
wealth’.56 In such a polity, ‘where the King doth guide the state and the law the
50
Alasdair Macintyre, After Virtue: a Study in Moral Theory (London, Duckworth, 1981) 132. The
other Platonic virtues are sôphrosunê (‘restraint imposed by reason’); andreia (courage); sophia
(wisdom), ibid.
51
Plato, Republic, 161, Book 4, 444d.
52
Ibid, Book 4, 443d.
53
Plato, The Laws (Trevor J Saunders (trans), London, Penguin) 156, Book 5, 735a; see also, ibid,
Notes, ch 9, n 1, 513.
54
Ibid, 107–8, Book 3, 700b.
55
On the influence of Aristotle over the political theory of Hooker, see Tod Moore, ‘Recycling
Aristotle: the Sovereignty Theory of Richard Hooker’ (1993) 19 History of Political Thought 345.
56
Hooker, n 29 above, at 179.
214 Paul Raffield
King, that commonwealth is like an harp or melodious instrument’.57 Hooker’s

allusion to the musical harmony of Orpheus’s lyre demonstrates the potency of
classical mythology and the resonance of its images in the minds of early modern
writers. As George Hersey has noted, the myth of Orpheus and the lyre ‘records
the moment when law was first introduced into the society that invented that
myth’;58 the charmed beasts representing the barbarian state of mankind before
law was introduced.
The playing of music does not figure greatly in Titus Andronicus, but reference
to music does. Where music is played, it is confined to flourishes, which usually
signal the arrival of important personages in the Roman state, such as the
Emperor, senators and tribunes. It is noteworthy that most of the music which
Shakespeare specifically mentions is confined to the first scene of the play; this
scene contains no fewer than eight stage directions that refer to the use of music.
The music of Act 1 scene 1 is of a ceremonial kind, intended to convey the pomp,
power and dignity of the Roman state: in the words of Saturninus, ‘Proclaim our
honours, lords, with trump and drum’ (1.1.278). The exclusive use of drums and
trumpets in the first scene, in the form of brief flourishes of a martial nature,
suggests the imposition of imperial order rather than the natural order of the
Platonic cosmos or the equitable political order of the Aristotelian city-state. Still
less does the Rome of Titus Andronicus resemble the ‘melodious instrument’ of
Hooker’s ideal commonwealth.
Beyond the first scene of the play, there are only six stage directions that refer
to the inclusion of music; three of which are in the final scene and signal the
imminent arrival of a new imperial order, under the rule of Titus’s son, Lucius.
The only contrast with the ceremonial flourishes of trumpets (accompanied by
drums) occurs in the second scene of the play, in which the natural order of the
forest is immediately juxtaposed with the artificial order of the Capitol. The scene
starts with ‘a noise with hounds and horns’ (2.1.0) as Titus’s hunting party enters,
and is soon followed by ‘a cry of hounds, and wind horns in a peal’ (2.1.10), as
Saturninus and his party join them in the forest. The natural harmony of the
forest, implied by the sounds of the hounds and the horns, is soon to be shattered
irrevocably by the murders, mutilations and rape that take place there. In such
inharmonious circumstances, the further use of music would be extraneous and
inappropriate. Instead, the violated body of Lavinia becomes the mute embodi-
ment of a discordant society, in which the intrinsic reason of natural law has been
replaced by the irrationality of tyranny. Referring to the appalling act of mutila-
tion and violation, perpetrated upon Lavinia by her barbaric assailants, Marcus
Andronicus draws our attention to a central metaphor of the play: the body as
57
Ibid 146. On Hooker’s subjection of the monarch to the interests of society, see Peter Lake,
Anglicans and Puritans? Presbyterianism and English Conformist Thought from Whitgift to Hooker
(London, Unwin Hyman, 1988), 109, 201.
58
George Hersey, The Lost Meaning of Classical Architecture (Cambridge, MA, MIT Press, 1988) 5.
the symbol both of the harmonious commonwealth, of the kind envisaged by

Hooker, and of the ordo naturae.59 In contemplation of the terrible and pitiful
sight of Lavinia, he laments that:
O, had the monster seen those lily hands

Tremble like aspen leaves upon a lute
And make the silken strings delight to kiss them,
He would not then have touched them for his life.
Or had he heard the heavenly harmony
Which that sweet tongue hath made,
He would have dropped his knife and fell asleep,
As Cerberus at the Thracian poet’s feet. (2.3.44–51)60
It is especially apt that Shakespeare should refer to Orpheus, the Thracian poet, in
the context of the hideous crimes committed against Lavinia. As Marcus tells the
audience, she was the personification of natural harmony; but such is the level of
barbarity to which the subjects of tyrannical, imperial rule have sunk, that they
do not hear the melodious charms of Orpheus’s lyre. Aurality and orality are
recurring metaphors in the play:61 Lavinia cannot speak of her violation because
her tongue has been cut out;62 unlike Cerberus, in the myth of Orpheus, the
bestial Chiron and Demetrius are deaf to the sweet music of the lyre; Quintus
and Martius, Titus’s sons, are denied the right to speak in their defence against
the wrongful charge of the murder of Bassianus; and Saturninus and the Roman
judiciary refuse to entertain Titus’s oral pleading for justice on behalf of his sons.
Saturninus prejudges the guilt of Quintus and Martius and denies them even
the semblance of a trial: ‘Let them speak not a word: the guilt is plain’. (2.2.301)
The uncaring, unhearing judges process past Titus, on their way to the execution
of his two sons. ‘Hear me, grave fathers’ (3.1.1), he entreats the patriarchs of the
law, prostrating himself as they pass; but they are oblivious to his injunction for
mercy. Lucius reinforces the metaphor of aurality by telling his father, ‘The
tribunes hear you not’, reminding him four lines later that ‘no tribune hears you
speak’. Titus replies that ‘if they did hear, / They would not mark me’ (3.1.28, 32,
59
On the political symbolism of the rape of Lavinia and the subsequent mutilation of her body,
see Andrew Hadfield, Shakespeare and Renaissance Politics (London, Arden Shakespeare, 2004) 121.
60
With reference to the myth of Orpheus, Hersey states that Giambattista Vico, in La Scienza
nuova seconda (1744), developed tropes of the word corda, meaning variously tendons, sinews, lyre
strings and musical chords; all of which implied ‘the union of the cords and powers of the fathers,
whence derived public powers’, quoted in Hersey, n 58 above, at 5.
61
On the importance of the aural metaphor in legal discourse, see Bernard J Hibbitts, ‘Making
Sense of Metaphors: Visuality, Aurality and the Reconfiguration of American legal Discourse’ (1994)
16 Cardozo L Rev 229.
62
Marcus Andronicus refers to the Ovidian myth of Philomela, from which the story of Lavinia is
derived: ‘Fair Philomela, why she but lost her tongue, / And in a tedious sampler sewed her mind’
(2.3.38–9). In Ovid’s story, the compassionate gods turned Philomela into a nightingale and her sister,
Procne, into a swallow, Metamorphoses, Book 6, 423–672, although early Greek sources have Procne
turned into a nightingale and her tongueless sister, Philomela, into a swallow.
216 Paul Raffield
33–4), correctly observing that ‘tribunes with their tongues doom men to death’.
(3.1.47) The absence of an impartial trial before an independent tribunal is a
flagrant breach of one of the basic principles of natural justice, audi alteram
partem (‘hear the other side’): the right to a fair hearing. In the 1590s, it was the
blatant disregard for this right that so exercised Coke, in the cases concerning the
deprivation of liberty by the Court of High Commission.
It is over the issue of speaking and being heard, and the correlation of these
natural human phenomena with justice, that Shakespeare comes closest to
approving the oral tradition of common law, in preference to the civilian
predilection for textual exposition of law. The former represents a jurisprudence
that is spoken by its patriarchs, the judges, having heard the arguments placed
before them by the disputants. It is a flexible system that allows the judges to
exercise their legal imaginations in the interests of justice; delivering equitable
judgments that demonstrate a palpable response to the human complexities of
individual cases.63
THE DEPICTION OF TROYNOVANT
The idea that constitutional theory could be represented through an order of

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

ments in printing technology.67 The creation by Henry VIII of a sovereign
English jurisprudence provided the intellectual impetus for a generation of
writers to imagine and describe the utopian state, and the relationship therein
between ruler and citizen.
Titus Andronicus was the first of Shakespeare’s Roman plays; throughout his
writing career, he was to find the political structure and institutions of ancient
Rome an illuminating metaphor for the human aspiration to create a utopian
state from the ashes of an earlier civilisation. In The Roman History, Livy records
the legendary foundation of Rome by Aeneas, after his escape from Troy. As Bate
reminds us in his introduction to Titus Andronicus, British writers replicated this
myth: accrediting the foundation of Britain to another Trojan fugitive, Brutus.68
Troia Nova, the new Troy, or Troynovant as it was known by Elizabethan writers,
represented an aspiration for a nation that had been reborn in 1534 as a sovereign
nation-state. As Edmund Spenser wrote in The Faerie Queene: ‘For noble Britons
sprong from Troians bold, / And Troynovant was built of old Troyes ashes cold’.69
Elizabeth was depicted not only as Astraea, the goddess of justice, but also as the
‘beauteous Queene of second Troy’.70
The image of a utopian city-state, governed by a benevolent law-maker, found
favour with Coke. As he sought to invest the common law with constitutional
sovereignty, whose legitimacy was bound up with its antiquity, so the Trojan king,
Brutus, became for Coke the prototypical author of the ancient constitution. In
The Reports, Coke argues that ‘Brutus the first King of this land, as soon as he
settled himself in his kingdom, for the safe and peaceable government of his
people, wrote a book in the Greek tongue, calling it the Laws of the Britons, and
he collected the same out of the laws of the Trojans’.71 After landing at Totnes, in
Devon, Brutus had made his way east and founded a new city, Troynovant, on the
banks of the Thames.72 For Fortescue, Coke and other jurists of the early modern
period, Brutus was the father of the Britons, the archetype and icon of English
nationhood. It was Brutus who, according to Fortescue, had founded the
dominium politicum et regale: he was the original personification of constitu-
tional rule.
The influence of Brutus, Troy and Republican Rome over Coke’s perception of
his role as a lawyer (and later as a judge) cannot be overstated. He repeatedly
67
On the socio-political effects of the innovative printing process, see Elizabeth L Eisenstein, The
Printing Press as an Agent of Change (Cambridge, Cambridge University Press, 1979).
68
69
Edmund Spenser, The Faerie Queene (London, Penguin, 1987) III. IX. 38.
70
In Heather James, Shakespeare’s Troy: Drama, Politics and the Translation of Empire (Cambridge,
Cambridge University Press, 1997) 18. See also, David M Bergeron, Elizabethan Civic Pageantry,
1558–1642 (London, Edward Arnold, 1971) 58.
71
Coke, in Part 3 of The Reports, n 12 above, vol IV, Preface, viiia.
72
The tale of Brutus, his exile from Italy, his odyssey and his eventual arrival in England, was
recorded by Geoffrey of Monmouth in 1136: Geoffrey of Monmouth, The History of the Kings of
Britain (L Thorpe (trans), London, Penguin, 1966).
218 Paul Raffield
invokes the ideal of the ‘Publique Weale’,73 or Res Publica, depicting it as the
ultimate purpose of government, law and legislation. On his appointment to the
judiciary in 1606, Coke described himself to the grand jury of the assizes in
Norwich as an unwilling judge, comparing himself to an unnamed young
Roman, who had accepted judicial office, only ‘to give encouragement unto other
Romane citizens by their good credit in the government of Romes Publique
Weale’, but whose reluctance stemmed from the necessity of presiding in judg-
ment over ‘many friends, kinsfolkes, and allies’.74 As so often in his career, Coke
provides the foundations for modern administrative law;75 here he invokes the
rule against bias (nemo iudex in causa sua), stating that ‘amongst friends to iudge,
is a thing nothing more dangerous’.76 This was of considerable relevance at the
assizes in Norwich, as Coke’s family connections with the area would have
involved him in legal disputes concerning those who were known to him.77
Again, he compares his position to that of the ‘young Romaine’ who was made a
judge by the Senate: the reluctant judge was persuaded to accept the post, ‘in thy
love to Rome’s Common-wealth’.78 Coke goes on to describe a peculiarly dra-
matic scene, in which the young Roman judge hosts a valedictory banquet, prior
to his departure from his friends: ‘Thus must I depart from you, and yet continue
amongst you, for by the love, power and authoritie of the Senate, I am appointed
to be a iudge, and in the seat of justice, I must forget the remembrance of your
former friendships … I must with equitie and uprightness, iustly administer
iustice unto you all’.79
It has already been noted that Coke was no friend to the acting profession but,
as the above extract amply demonstrates, he possessed an innate understanding
of the potential for dramatic conflict between the public and private life of the
judge. The scene which he describes finds many echoes in Shakespeare: a
law-maker who has departed from his subjects but is simultaneously amongst
them is redolent of the Duke in Measure for Measure; and the banquet, prior to
the dispensation of justice, is suggestive of the ghoulish feast, staged by Titus
Andronicus in Act 5 scene 3, in which the unjust rule of Saturninus is punished
in spectacular fashion. Also, the decision by the young Roman to depart from his
friends before returning to administer justice is remindful of Titus’s son, Lucius,
who must leave Rome and forget the remembrance of his former friendships,
before returning to restore harmony to a shattered populace: ‘To heal Rome’s
harms and wipe away her woe’. (5.3.147)
73
Coke, Assizes Holden at Norwich, 1606, n 38 above, at 5, 6.
74
Ibid 6.
75
On Coke and the evolution of judicial review, see Jeffrey Goldsworthy, The Sovereignty of
Parliament: History and Philosophy (Oxford, Clarendon, 1999) 111–17.
76
Coke, Assizes Holden at Norwich, n 38 above, at 7.
77
Coke was born in 1552, in the village of Mileham, approximately 20 miles from Norwich. He
was educated at Norwich Free School.
78
Coke, Assizes Holden at Norwich, n 38 above, at 6, 9.
79
Ibid 10.
References to Troy abound in Titus Andronicus. Only a few lines into the play,
Titus compares the loss of his sons in battle to that of King Priam of Troy
(1.1.82–4). The mythical heroes and heroines of Homer, Ovid and Virgil (Aeneas,
Astraea, Dido, Hecuba of Troy, Hector, Philomela) are all mentioned. Contem-
plating his unimaginable grief at the ravaged body of Lavinia, Titus refers to
‘bright-burning Troy’. (3.1.70) Names of characters are reminiscent of Trojan
legend: in Virgil’s Aeneid, Lavinia was given in marriage to Aeneas; in Shake-
speare’s play, Titus’s son, Lucius, has obvious associations with Lucius Junius
Brutus, who expelled the Tarquins from Rome. Indeed, in the play, Lucius makes
the explicit connection between himself and his illustrious counterpart. Before
leaving Rome to raise an army of Goths, he makes the following promise to his
father: ‘If Lucius live, he will requite your wrongs / And make proud Saturnine
and his empress / Beg at the gates like Tarquin and his queen’. (3.1.297–9) Like
the mythical founder of Britain, he is a fugitive from his city.
Finally, towards the end of the play, Shakespeare subtly links Troy and Rome
with Troynovant, or London, giving the following line not to a member of the
imperial family, but to a citizen of the state, a Roman Lord: ‘Or who hath brought
the fatal engine in / That gives our Troy, our Rome, the civil wound’. (5.3.86) The
repeated use of ‘our’ is significant. To the audience at the Rose Theatre in 1594, as
much as to Spenser in The Faerie Queene, ‘our Troy, our Rome’ was England. For
Coke and many common lawyers, England’s ‘civil wound’ was the threat posed to
ancient liberties by excessive use of the royal prerogative; liberties that were
guaranteed (as Coke continually reminds his readers) in Magna Carta but which
had existed since time immemorial. Unlike the Utopia of Sir Thomas More
(literally translated as ‘No Place’) Troynovant was not a fictional realm. It was
recognisably London: the heart of Tudor government. And what was ‘the fatal
engine’, the Trojan horse, that caused the civil wound to which the Roman Lord
refers in the play? It is reasonable to propose that, in a constitutional sense, ‘the
fatal engine’ was the introduction of the regal Imperium into the English state.
Far from enabling a new Troy to spring from the ashes of the old, it facilitated
absolutist rule. By the last decade of the sixteenth century, the ancient liberties
which formed the basis of the unwritten, ancient constitution were under threat
from a rival jurisdiction; one that sought to supplant the sovereignty of common
law and the equitable principles which underlined its practice. Although Troyno-
vant was recognisably London, at a symbolic level it represented the longing for
an imaginary realm, located in a fictional past: the unattained and unattainable
state of ideal governance, to which all rational citizens aspired but which none
would ever experience.
Returning to Act 4 scene 3, moments before his arrows are shot into the
heavens, Titus vows to his brother Marcus:
Yet wrung with wrongs more than our backs can bear.
And sith there’s no justice in earth nor hell,
220 Paul Raffield
We will solicit heaven and move the gods

To send down Justice for to wreak our wrongs. (4.3.49–52)
It would be more than 50 years after the first performance of Titus Andronicus
before justice was finally sent down to ‘wreak’ the wrongs of the royal prerogative,
and exact retribution in the form of the execution of a king and the abolition of
the monarchy. Would a new Troy or, as Milton described it, ‘another Rome in the
west’,80 arise from the ashes of the old regime? That remained to be seen.
80
John Milton, The Readie & Easie Way to Establish a Free Commonwealth (Thomason Tracts,
1659) E.1016 [11], 2.
14
Titus Andronicus vs Le More Cruel
and Les Portugais Infortunés
Humiliation, Punishment and Violence in the

Shakespearean and French Theatre of the Late Sixteenth
and Early Seventeenth Centuries
CHRISTIAN BIET
T HAS BEEN common knowledge for quite some time now, that
the law is strongly evident in the plays of Shakespeare. Current
research on theatre has also established that characters and actors,
as well as playwrights themselves, play with law and reality in order to call them
into question and destabilise them: literature and theatre use the inconsistencies,
or discrepancies, of the law to engender a play on fiction, language and reality. In
the specific case of Shakespeare, the author plays on the literality of language
through moots or the complexity of specific legal cases not only for the pleasure
of the audience, but also to increase the ambiguity of the dramatic discourse.
When Aaron tells the title character of Titus Andronicus that the latter will get
the heads of his sons back if he (Titus) cuts off his own hand, we hope that the
sacrifice of the hand will enable him to save his sons. But we know Aaron from
the beginning of the play, and we know that language is full of traps. That is why
we feel horror, yet at the same time a perverse pleasure, when Titus obtains, in
exchange for his own hand, the severed heads of his two sons. The audience
witnesses not merely a bizarre bargain but also a play on the difference between
the rhetorical and the literal, between a rhetorical figure (a synecdoche) and a
literal statement. Titus understands Aaron’s use of the word ‘head’ as synecdoche
(a part for the whole), ie to mean the entire living bodies of his children.
However, Aaron, who knows that Titus is interpreting his discourse rhetorically
instead of literally, remains on the literal level of discourse. For Aaron the word
‘head’ is not a figure, it is not a synecdoche, rather it signifies a head without any
inference that there is a body attached to it. We, the audience, are horrified, yet we
222 Christian Biet
like puns and enjoy Aaron’s play on words, especially because we see a man, Titus,
caught up in his own linguistic habits, speaking metaphorically and incapable of
understanding a simple, literal discourse. Even at the cost of being guilty of a
perverse pleasure, we enjoy playing with the text delivered by the characters,
actors and playwright; we love to toy with the idea that a text can be performed in
different ways; we enjoy considering the ways in which ambiguity can inform the
narration and interpretation of a case and the ways in which rhetorical figures
and words themselves can be deployed in a fictional, judicial and linguistic
drama.
‘Let fools do good and fair men call for grace’, says Aaron (3.1.205).1 Let fools
believe in rhetorical figures and let fair (?) men ignore the literality of language.
That is the best way to punish them. Aaron doesn’t lie, rather he simply speaks
literally, whereas Titus believes Aaron but takes the latter’s words as a rhetorical
figure. From a single discourse Shakespeare creates two discourses, both of them
true despite radical and terrible differences between them. With the same word,
Shakespeare creates an opposition (of course, he plays on legal ambiguity to great
effect in The Merchant of Venice too). To create opposition from uniform text is
the way the law functions, and therein lies dramatists’ fascination with the
interpretation of legal discourse. Titus, at this moment of the plot, is blind to the
possibility that language can be literal: he gains that insight only through terrible
humiliation and suffering. With that insight, he acquires the means to inflict
terrible humiliation and suffering by way of revenge. Hence at the end of the play,
Titus speaks to his enemies the same way Aaron did and Titus urges them to eat a
meal he has cooked which (unknown to them) contains the flesh of Tamora’s two
sons. ‘Although the cheer be poor, / ‘Twill fill your stomachs’ (5.3.28–9), he says.
The cheer certainly is poor. Titus acts and plays literally, in the fashion of evil
men (who are no fools), showing that with the insight of evil men, ‘fools do good
and fair men call for grace’.
We agree, then, that theatre can take the form of a legal moot performed on
stage using literary and verisimilar fictions. In addition, we can now see that
theatre is not only a moot about a case of law, but also a moot about discourse,
language and the functionality of communication. Shakespeare’s plays, like
European plays of this period in general, give the public the opportunity to
experience an ambiguous pleasure (horror and the pleasure of horror) and the
pleasure of reflecting on moral, political and judicial matters. With this observa-
tion in mind, we have to ask why these moots, these ways of playing on the law
and specific legal cases, discourse, language and communication, are so promi-
nent in Shakespearean drama. Is it in order to destroy the law and language by
moots and fictions? Or to give the audience some means of reflecting upon its
own existence in the theatre and in the world outside the walls of the theatre?
1
Textural references are to William Shakespeare, The Lamentable Tragedy of Titus Andronicus in J
Bate and E Rasmussen (eds), William Shakespeare: Complete Works (Basingstoke, Macmillan, 2007).
Titus Andronicus vs Le More Cruel and Les Portugais Infortunés 223
In this chapter, I will discuss two examples of this ‘Shakespearean’ way to play
with the public; a phenomenon which also occurs in French drama, including
tragedies, of the very same period. I will do so to show that French authors, albeit
probably without any detailed knowledge of Elizabethan plays, are at least aware
of them and engage in the same dramatic practice as their English counterparts,
since they live in the same European sphere and know that retaliation and
revenge are essential elements in the composition of tragedies. In order to show
this, I will examine two French plays which employ the central dramatic device of
the English and French drama of the period, the device which indeed provides
the main dynamic for the tragedies of the time: the process of domination,
humiliation and revenge.
The first example, La Tragédie Française d’un More Cruel, comes more or less
from the same tradition as Titus Andronicus while the second, La Tragédie des
Portugais Infortunés, is seemingly further removed from the Elizabethan drama.
Both plays, however, provide ways of understanding literature’s and theatre’s
capacity to think about the legal and political issues that the law leaves unsolved.
Of course, dramatic literature does not operate to resolve these issues, but rather
to propose ideas that reality and law could have enacted, had the past been
different, or ideas that reality and law might enact in the future, after the play has
been seen or read.
A continual cycle of humiliation and vengeance—the humiliation of one party
and the revenge they take for being humiliated, leading to the humiliation of the
other party and their vengeance upon the first party: this is the typical plot of
dramas and tragedies in England and France during the end of the sixteenth and
the beginning of the seventeenth centuries. This dramatic or ‘dramaturgical’ cycle
is a sort of aesthetic law. It is also a juridical and traditional and perhaps even
anthropological law. Yet as everyone knows and has experienced, this ancient
custom of domination, humiliation and vengeance leads to an unending series of
upheavals, crimes, bloodshed and mass murders.
For the theatre, the first question is how to represent humiliation, which is at
once a type of punishment, judicial retribution and justice. How does one also
represent the fact that the first instance of humiliation and revenge leads to a
dangerous, never-ending cycle? The second question, then, is how one leaves the
cycle of domination and retaliation. It is these questions that tragedy tries to
answer through fiction at the end of the sixteenth and the beginning of the
seventeenth centuries.
What are the principal dynamics of the human and social process of humilia-
tion and revenge? How does tragedy perform this process? An illegitimate
humiliation prompts the victim to legitimate vengeance which is generally more
violent or cruel than the first act. The original aggressor is turned victim by his
victim’s revenge and, being more grossly humiliated than the original victim,
becomes more of a victim than the original victim was and thereby derives
legitimacy to exact revenge himself. So the vicious cycle never ends. This ‘Talion
Law’ is represented in tragedies through the lens of a moral and legal debate. In
224 Christian Biet
reading Titus Andronicus, we see how humiliation is enacted not only through
crime, violence and rape but also through words and discourse. (Modern readers
know that literality can be a weapon.)2 When looking at Titus Andronicus, at the
courtroom scene in The Merchant of Venice or at the anonymous French work
More Cruel (c 1613), we can observe that the authors represent and discuss, using
plot events and the text, a legal and theatrical process which leads to disorder and
doubt. Sometimes, however, in order to break the cycle of domination, tragedy
tries to find a way to escape the terrible and cruel reality of the Talion Law and
propose an alternate vision. To avoid the heavy hand of the ancient, ever-present
Talion Law, theatre invents or proposes, through fiction, a possible, fragile path
which is at once political, moral and philosophical. In order to get a better sense
of this, I shall consider finally Nicolas-Chrétien des Croix’s Les Portugais
Infortunés (1608).3
LA TRAGÉDIE FRANÇAISE D’UN MORE CRUEL

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

even if he does not have the legal right to do so.
Conclusion: If a black slave acts in an unfounded manner as a subject and
misguidedly conceives himself in legal terms, ie as a person, he can be dangerous,
especially because black people are by essence passionate and cruel. In the short
story, the slave rapes the master’s wife and kills his children before committing
suicide himself.
Bandello chooses this example to prove that it is urgent to end black slavery in
Italy (as opposed to distant areas such as Latin America or the West Indies).
Letting black slaves into Western cities is undesirable, not on humanitarian
grounds, but because black people (‘Moors’) do not recognise the laws and
customs of white Western society, much less when they have been beaten and are
furious as a result, regardless of the fact that there was a clear reason for the
beating. His reasoning proceeds to argue that such slaves, swept away by their
passions, having an unlawful conception of themselves as persons, react as
though they were humans, enacting an illegitimate and scandalous vengeance.
When the humiliated individual acts like a person, he constitutes a subject and
can thus avail himself of the custom of retaliation that subjects generally follow;
black people, however, are not considered persons and thus have no basis for
feeling humiliated or avenging themselves.
As I stated earlier, Bandello was widely read in Europe. So it is no surprise that
an anonymous author from Normandy would adapt this story for the stage in
roughly 1610. This author did not read the original text by Bandello, but rather
Belleforest’s version. We can also suppose that the author had read Elizabethan
tragedy, or at the very least probably had heard of the plots of such plays,
including that of Titus Andronicus, where Aaron, a black freed slave, enacts a cruel
vengeance on Titus.
In Bandello’s short story, as we have seen, the black slave is considered wrong
to have acted as a person (since he was not one), wrong to have sought vengeance
(since he had committed a fault himself and had only been beaten once as
punishment) and wrong to have retaliated against his master. That said, whereas
a prose narrative can be written so as to present only one side of an issue, a
dramatic plot needs to mobilise contradictions in order to interest the audience.
The anonymous French playwright knows that this demand forbids him from
constructing a linear plot which simply condemns the slave without any ambigu-
ity, so he adds to the plot of the short story a dramatic conflict between the
former slave and the master. Specifically, the author makes the following two
significant plot modifications:
1. Before the beginning of the play, the slave has been beaten several times by his
master, without any good reason.
2. The master, who feels wrong to have beaten his slave so often, emancipates the
latter at the very beginning of the play and thus lets him attain legal
personality.
226 Christian Biet
This double dramaturgical move casts doubt upon the legitimacy of the master
and makes any possible retaliation on the part of the slave (or former slave)
legitimate. It also makes possible a tragic balance between the two characters:
since the Moor is no longer a slave (he was emancipated by his master), he can act
as a free legal subject. The question that comes to mind in this context is whether
the Talion Law is a tradition or a fundamental law of justice, and if anybody has
the right to avenge himself.
In La Tragédie Française du More Cruel, then, the Moor has his reasons for
seeking revenge, even if the disproportionate extent of his revenge goes far
beyond the eye-for-an-eye logic of the ancient Talion Law, the lex talionis. We can
see that the vengeance enacted on stage is out of proportion. In the first act, the
Moor tells the audience that he has to be avenged for the wounds inflicted to his
body and soul. The Moor has been humiliated and can now, according to the
retaliatory logic of the Talion Law, humiliate his tormentor, his master Riviery.
The slave’s master is a Majorcan nobleman proud of his castle, his wife, his
children and his new-found wealth (wealth obtained through Spanish violence to
the Amerindian people and theft of their gold; witness the contemporary account
of Bartolomé de las Casas). From the point of view of a French author from
Normandy, Riviery is emblematic of the Spanish arch-enemy: he is arrogant,
deluded enough to think Providence can save anyone, and guilty on numerous
counts of slave holding in the metropolitan territory of Spain (slave holding was
at that time forbidden in metropolitan France). Even if the master, believing
himself to be acting in goodwill and favoured by Providence, thinks he atones for
his faults by emancipating his slave, the audience, hearing the Moor’s point of
view, hesitates between two legitimate positions and understands the slave’s
desire for revenge. The playwright, in order to sharpen the contradictions, shows
that the master, proud of having freed his slave, now wishes to reap the benefits of
the good deed by asking his former slave (now a servant) to watch over his family
while he leaves the castle to go hunting. But the Moor doesn’t want to be a kind of
Uncle Tom and doesn’t give up the possibility of revenge. Of course, the audience
knows this and is apprehensive about what will follow in the tragedy. Like the
audience, Riviery’s wife, the damoiselle, is concerned about the Moor and tries to
convince her husband not to leave. But since the newly wealthy Spanish noble-
man is excessively proud and completely set in his ways, he still goes hunting;
putting the lives of his wife and children in the Moor’s hands. The stage has been
set, then, for the ultimate vengeance.
First act of vengeance, a double vengeance: the Moor takes possession of the
castle, rapes the wife and kills the first-born son. Specifically, the Moor raises the
drawbridge and rapes the damoiselle on stage, before the eyes of the audience. He
then throws Riviery’s son to his death from the castle wall. The two remaining
children cry for help from the castle wall and are heard by two men who summon
Riviery to the scene of the crime. The theatrical situation is terrifying: the Moor is
at the top of the wall while the master is down below, between the crime scene
and the audience. Riviery is helpless, impotent. After a moment of rage, the
master realises he has no alternative but to attempt to negotiate with the Moor.
Second act of vengeance, a double vengeance: the humiliation of the master and
the death of the two remaining sons. At this specific moment, the French author
uses a plot device from Titus Andronicus. To enact his vengeance, the Moor offers
to spare Riviery’s wife and remaining two sons if the master cuts off his own nose
(a punishment for slaves who attempt to escape). The Moor swears on Riviery’s
Christian God that he will release the family if the latter cuts off his nose, which
Riviery does, in front of him and the audience. Then, the Moor proceeds to throw
the children off the wall, stating that he is not disloyal or treacherous, since he
swore on Riviery’s God and not on his own, Mohammed.
Third act of vengeance, a triple vengeance: the murder of Riviery’s wife, the
Moor’s suicide, and his triumphal escape from the retaliation of the master. The
tragedy ends when the Moor kills the damoiselle, throws her off the wall and then
jumps into the sea, saying ‘Farewell to all’. The cycle of revenge has ended and the
Moor has escaped punishment by the master and by the law. The former slave has
exacted revenge but it is henceforth impossible for the master to retaliate in turn
and maintain the cycle of humiliation. In dying, the Moor triumphs.
In contrast, the master has lost his pride, his honour (his wife has been raped),
his progeny (his sons have been killed), his property (his castle has been taken
over by his former slave), his right to gain revenge (the Moor has killed himself)
and has little left to do but bury his wife. Case closed. The tragedy and cycle of
revenge have both reached their end, but not the audience’s reflections; having
been enthralled by the striking effects, the spectators now have to think about the
case, debate the moot and make a judgment together.
The play provides plentiful reason for exercising one’s judgement, for it
transforms a slave into a person, a subject; and it questions whether a person has
a legitimate, traditional right to obtain vengeance. The Moor’s revenge is exces-
sive, of course, but that is the nature of vengeance. The slave has his reasons, the
master his faults. The earlier humiliation of the slave is balanced by the humilia-
tion of the master. This terrible, contradictory situation ends the tragedy and
obliges the audience, which has witnessed the crimes without acting, to think
about the judicial process. Having been shaken by the violence of the play, the
audience can reflect upon the consequences of vengeance and upon whether
retribution is legitimate or illegitimate and unlawful. But there is nothing to
replace vengeance, there is no law that can lead to peace. Passion, humiliation and
vengeance create a cycle that only crime, violence and death can end.
The tragedy informs us that even if Christians believe themselves redeemed by
actions they have taken, such as adopting peace as an ideal, or forsaking the use of
force (after they have employed those very means), they still have to atone for
their faults; and those who suffered at their hands may act legitimately, or
overreact. While the conversion to a more peaceful engagement with the world
interests the audience, so does the tension between opposing legitimacies and the
bloody, theatrical spectacle of the overreaction. Humiliation, reaction, vengeance,
228 Christian Biet
cycles, theatrical effects, reflections of the proportionality of the riposte to the

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

revenge and deprivation to continue the cycle and destroy the identity of the
other.
LA TRAGÉDIE DES PORTUGAIS INFORTUNÉS

(1608)
Incredibly violent, concrete and symbolic actions can be invented, then, in order
to destroy the identity, progeny or community of the other. The humiliation in
question takes many forms: rape (one of the ultimate signs of domination, the
subjugation of the body of the woman, who ensures the reproduction of the
community); amputation (of the hands, nose, ears or male genitals); marks
inscribed on bodies or souls; destruction of geographical territory; elimination of
progeny; mass murder and genocide. These are the manifestations of this combat
which, as I said above, is unending.
Theatre deploys its own special fictions to represent the fundamental dynamics
of this process to its collective audience. In addition, theatre attempts to under-
stand and present the facts through cases that are able to be judged. In fact, the
representation of humiliation is a perfect dramaturgical tool for the theatre, an
ideal way of affecting the audience and letting it think about a phenomenon
which is at once anthropological, historical and contemporary. In sum, then, the
dramaturgical pairing of humiliation and vengeance is an important plot com-
ponent in the European tragedy of the end of the sixteenth and the beginning of
the seventeenth centuries; the tragedy frequently deploys this pair on its public
and theatrical stage.
The audience, meanwhile, is consigned to being a mute, powerless witness to
the dynamic unfolding before it and, with the exception of making disruptive
comments, cannot disturb the fictional performance and has to passively accept
the performance of the crime. The spectators are eminently aware of their
position: they realise that they don’t intervene when the crime occurs on stage
and can easily compare the position they take during the performance to the
social and political position they have adopted vis-à-vis historical, real crimes.
‘What did you do when you witnessed these crimes in the past? What did your
parents do? And what will you do in the future to prevent new humiliations and
crimes or to avoid committing them yourself? Will you choose passivity or
action?’ These are the questions the tragedy asks of its audience.
The position of the spectators described here raises the following literary and
historical question: is it possible to break out of the ancient cycle of humiliation,
or is it man’s destiny to remain in an unending struggle where revenge never
leads to peace but only to continued acts of revenge or death? In other words,
230 Christian Biet
how can a character or author change this traditional Talion Law, so characteris-
tic of the historical period? By establishing another law to create peace? By
finding religious arguments for breaking the cycle? In sum, can another law
replace the custom of vengeance?
We will attempt to answer these questions by looking at another tragedy,
Nicolas Chrétien des Croix’s La Tragédie des Portugais Infortunés. In this play, a
way out of the cycle of vengeance presents itself in the aftermath of a struggle
between blacks and whites. Inspired by Montaigne’s Essais, this vision of an
escape from the dynamic of vengeance can perhaps lead to a relative peace. The
tragedy does not herald a new world order, but rather makes a tentative attempt
to reduce violent conflict by representing mankind in its verses.
In Les Portugais Infortunés (1608), Nicolas Chrétien des Croix takes up the
issues of domination and humiliation and looks at them within the context of the
clash of civilisations so familiar to the sixteenth century. This tragedy was written
in Normandy and is based on an event which took place in 1553 and which the
Italian Jesuit, Father Maffei, had written about in 1588 (Historiarum Indicarum,
Book XVI). Des Croix, however, transforms the Portuguese prose narrative into a
French drama. The narrative tells the story of a group of Portuguese, shipwrecked
on the coast of East Africa, who are refused hospitality and food by the black
Manican people and then beaten, robbed and driven to utter humiliation and
death. The story ends with an image of the Portuguese men, women and
children, naked (the Manicans had taken their clothes) and dying. A few
survivors eventually wander through the desert, reach Cefala (today’s Maputo)
and recount their horrible tale.
This type of prose travel narrative is common during the period and describes
in a complex manner the rise of European domination of the world and the
barriers that non-European peoples set up to resist this subjugation. At the same
time, literature is pondering the question of natural rights, reading Las Casas or
Montaigne and comparing the behaviour, appearance, mode of living and social
and legal systems of non-Europeans with those of Europeans. Discovering the
non-European other is not a simple matter and while the experience may be
frightening or violent, it can sometimes also be a philosophical revelation and
lead to new ways of approaching questions of truth, identity, legitimacy and
justice.
Having looked at the travel narrative, we can now compare it to des Croix’s
tragedy. The subject of the drama is as follows: a group of Portuguese are sailing
around the southern point of Africa on their journey home from India. The chief
of the expedition, Sose Sepulveda, is accompanied by his wife Leanor, his children
and the crew of the ship, which is loaded with goods to be sold in Portugal. But
the Spirit of the Cape of Good Hope—the ‘Adamastor’ of Camoëns’ Lusidadas—
sends a tempest as punishment for the poor treatment of his people at the hands
of Portugal. This concludes the Prologue. After the storm, the Portuguese find
themselves shipwrecked, lost and without food on the east coast of Southern
Africa. They are forced to wander through desert lands looking for food and help.
A Manican ‘pontife’ or priest happens upon them: here, then, a black man’s first
encounter with white Europeans is staged. Both sides are surprised, the Manican
even more so than the Portuguese, but after both sides collect themselves they
launch into a discussion on whether the human race was black or white at its
origin.
Of course, what we are dealing with here is not reality, but rather theatre, and
more precisely, a philosophical theatre created to discuss the nature and identity
of mankind. We can observe that the play stages both a first encounter between
races (especially surprising for the Africans thitherto ignorant of the existence of
Europeans), and the first experience of humiliation by one of these races. When
the Manican Priest meets the whites, he gazes at them, dips his fingers in water
and touches one of the Portuguese men’s cheeks to see if he is wearing make-up
on his face. The black Priest cannot anticipate that some men are white by nature.
For the audience of the time, this gesture is ironic and theatrical; black characters
are usually played on stage by white actors wearing black make-up. Thus, in a
gesture at once theatrical and philosophical, the play inquires into the identity of
the human species; and, not without significance, it is the black character who
initiates the inquiry.
Of course, the Portuguese answer is that they are not wearing make-up. A
debate then ensues about whether the first humans were black or white and
about which race first settled the Earth after its divine creation. A character
representing what we might call the religious Portuguese faction argues for the
idea that black people derive from Ham’s race and are more or less a secondary
(and punished) race. A second character, belonging to what could be termed the
reasonable faction, posits a different idea, arguing that blacks were originally
white but that through living in Africa their skin was ‘roasted’ by the sun and
turned black. Despite these differences, the white Europeans present a unified
front in telling the African Priest that his race came after the white one and
therefore enjoys inferior rights on the Earth. The Priest, who was hoping for a
mutually beneficial interaction, is instead humiliated in his very first contact with
the Europeans. He finds that they are arrogant and that the bargain they propose
amounts to little more than extortion: their gifts in return for his food and help.
Therein lies the primary project of the tragedy: to show how whites misunder-
stand blacks and try to dominate the latter through their discourse, myths and
scientific knowledge. White people are portrayed as using these means to
persuade blacks to find food for them. The whites assume that the blacks should
procure food for them not only because it is customary to help people lost in the
desert but also because blacks are essentially inferior beings. The black Priest
understands that a process of domination is under way, even though he benefits
from the exchange by receiving gifts from the Portuguese. From this very first
scene, the tragedy shows a path that the white people could have taken yet chose
not to take: the path of equity, the refusal to dominate and humiliate the
non-European other. That, in sum, is the first philosophical and dramatic move
made by Nicolas Chrétien des Croix.
232 Christian Biet
Despite the tragedy of the scene we have just discussed, the Priest goes back to
his King in order to fulfil his pledge to help the Portuguese. The King, however, is
not disposed to help the Portuguese, as he is aware of their reputation as
conquerors and fears them. He also fears that the foreigners will enslave his
people as they had other black cities in Africa. To avoid this scenario, the King
sends a peace-making expedition, with music and dancing, to meet the Europe-
ans in order to ascertain who they really are. However, when the Africans
approach the Portuguese camp, a new misunderstanding is born and fear sets in
on both sides yet again: the Portuguese, afraid of the music and dancing of the
African group (they interpret the peaceful sounds and the gestures of peace as
threats of violence) fire on them. The relations between the two groups deterio-
rate radically; although no one is wounded, the Manicans retreat in terror.
At this point, the spectator is sure that the two sides are on the verge of armed
conflict. But it is at this moment that Nicolas Chrétien des Croix chooses to
momentarily suspend the action and present a possible solution, an alternative
which ultimately fails but which could have been a means to escape the cycle of
domination, vengeance, war, crime and punishment.
The alternative in question is a conciliatory scene between two women, an
episode that is funny and lively yet should also be taken seriously, since it takes up
the issue of the equality of humans and the relativity of culture and beliefs and
thereby opens up a possible new world based on Montaigne’s philosophy and
humanism. The episode commences when the Queen of the Manicans asks her
husband’s permission to meet Eleanor, the wife of the Portuguese leader, Sose
Sepulveda. The Manican Queen is curious and eager to see a white woman for the
first time in her life. Even though her husband considers the Portuguese danger-
ous and plans to defeat them by hook or by crook, he grants her request. The
meeting between the Manican Queen and Eleanor takes place before the eyes of
the Manican court. Immediately, the Queen makes an unusual request, which is
an allusion to a passage from Montaigne’s Essais.5 She asks Eleanor to expose her
breasts so that she, the Queen, can compare them with her own. African women,
the Queen says, have long breasts, while white women are supposed to have
round ones, something she wants to verify. She is familiar enough with the long
breasts appreciated by African men, but she is curious to see the round ‘tits’
(‘mamelles’) that European men find so beautiful. Although the prudish Eleanor
refuses to show her breasts in front of the court, she lets the Queen feel them and
the two women then discuss the relativity of taste among the different nations of
the world. At that point, the European noblewoman gives the Queen a watch and
explains how to use it; the Queen doesn’t treat this device as a useful measuring
instrument but as a jewel: saying, in effect, ‘who cares about the European notion
of time in African countries?’ At any rate, the two women converse and enjoy
5
See Montaigne, Les Essais, III, VI ‘Des Coches’; Les Essais, I, XXX, ‘Des Cannibales’, édition
étable par Jean Balsamo, Michel Magnien, Catherine Magnien-Simonin (Paris, Gallimard, Pléiade,
2007).
friendly relations with each other, thereby finding a hypothetical way to abandon
the human history of violence. As stated above, however, this effort comes too
late for this tragedy: at this point, the Manicans are poised to punish the
Portuguese.
While colonial history tells us that it was usually white people who enslaved
blacks, in this tragedy it is the Manicans who triumph in the great game of
domination and humiliation, albeit only in this particular situation. The Mani-
cans understand Machiavellian theory and put it into practice better than the
Europeans, and reveal themselves to be skilled at negotiation and extortion. As
the Manicans are in a position of superior strength, they can tell the Portuguese
that they will only receive food if they give up all their weapons; the Portuguese
have no choice but to accept. Act 4 of the play closes with a final confrontation in
which the Manicans triumph over the unarmed Portuguese and strip them of all
their possessions, even their clothes. Then the Manicans leave the stage, abandon-
ing the naked and plaintive Portuguese men, women and children. Deprived of
all means of survival, most of the Europeans will die in humiliation during a long
fifth Act. Just a handful of them will leave the stage at the end of the tragedy and
even fewer will reach the city of Cefala. The curtain falls.
Although much research has been done on the subject, it is still unknown if
this tragedy was ever staged at the beginning of the seventeenth century. It is
clear, however, that the play was published to be performed and that actors of the
period could wear flesh-coloured body suits (costumes de chair) when playing
naked characters. However, even if the drama was never performed, its strength
lies in the image, so vivid for the reader, of disarmed, naked, humiliated people,
deprived of virtually all their humanity: an image of disaster. But what, then, is
the process of humiliation in this tragedy? And how does Nicolas Chrétien des
Croix attempt to break it?
We can easily see that des Croix uses the process of humiliation to show that
the Portuguese, who have humiliated blacks elsewhere in Africa, are now humili-
ated and punished themselves by their victims. A question that naturally arises
here is the relevance of this situation to France, which, like Portugal, harboured
colonial ambitions. From the perspective of a French author like des Croix,
Portuguese and French modes of colonisation differ. First of all, the two countries
were rivals for the possession of Canada and, secondly, Henri IV’s colonisation of
Canada was intended to proceed smoothly, without recourse to violence or
slavery. Thus, the playwright imagines that the violent process of humiliation and
domination demonstrated in his theatrical representation of Africa could have
been avoided if the Portuguese had seen the blacks from a different, French,
perspective.6
6
See the section ‘Chacun est en pareil de grandeur différente: Les Portugais et les Africains saisis
par le spectacle des corps’ in C Biet and S Requemora, ‘L’Afrique à l’envers ou l’endroit des cafres,
tragédie et récit de voyage au XVIIe siècle’ in Alia Baccar Bournaz (ed), L’Afrique au XVIIe siècle,
234 Christian Biet
In summary, then, this tragedy draws, with all the methods and power of the
theatre of its time, two main conclusions from the action shown on the dramatic
stage. The first is that the domination game has been a powerful force throughout
history, that any side can triumph in this game and that such victory is always
temporary. The main thing that humans have in common is their savageness and
inhumanity.
Nicolas Chrétien des Croix shows the process of humiliation for what it is: a
tragic and violent means through which humans enact their inhumanity. In
addition, he tells the audience that retaliation can continue endlessly if no one
stops it. The fate of mankind, consequently, is that it will remain by nature savage
and inhuman so long as it takes as its only social rule the natural law of
retaliation, the Talion Law.
Yet at the same time, human nature can also be positive, since it is also
characterised by diversity and curiosity. The second conclusion, then, is that the
diversity of human nature and the relativity of human behaviour and beliefs
allow us to envision ways of breaking the cycle of natural, savage humiliation and
revenge. This tragedy has shown us several suggestions for freeing man from the
Talion Law. At different moments of the play, hypothetical or potential means of
escaping the inhumanity of man are presented: one moment is when the two
women engage in an exchange of ideas, another, at the conclusion, arises out of
the very desolation of the white people in the form of hope that some of them
will be saved. When Sepulveda’s wife, naked and utterly humiliated, cries over the
body of her son and laments the fate of her people and herself, something in this
tragedy says that there is a way for different humans and races to be, act and
behave; one that is far removed from this terrible story. Perhaps the clearest
message is that humiliation, like the process of domination, doesn’t solve
anything and has to be abandoned. The main idea, then, could be a renunciation,
after the story and the play, of domination and humiliation and an acceptance of
man’s differences in the aftermath of the chaos caused by domination.
Ultimately, Les Portugais Infortunés suggest a path towards a non-dominant,
constructive appropriation of one culture by another7 and intimates that there is
hope after the domination process has ended. In sum, Nicolas Chrétien des
Croix’s tragedy envisions a different world inspired by Montaigne’s philosophy
and thought, and it invites the audience and readers to construct that world. It
shows that they must write a new law and perform it in the city, outside of the
theatre.
mythes et réalités: actes du VIIe colloque du Centre International de Rencontres sur le XVIIe siècle, Tunis,
14–16 mars 2002, PFSCL, Biblio 17 (Tübingen, Gunther Narr, 2003) 371–402.
7
See Stephen Greenblatt, Marvelous Possessions: The Wonder of the New World (Chicago,
University of Chicago Press, 1991); Tvetan Todorov, La Conquête de l’Amérique. La question de l’autre
(Paris, Seuil, 1982).
VI
The Merchant of Venice and the Infinite

Meanings of ‘Law’
15
The Law of Dramatic Properties in
The Merchant of Venice
GARY WATT
HE MERCHANT OF VENICE is a fairy tale. There is no more

reality in Shylock’s bond and the Lord of Belmont’s will than in
Jack and the Beanstalk’.1 The opening words of Granville-
Barker’s commentary on The Merchant of Venice serve as a warning to lawyers
who might be tempted to mine the play for technical references to law. Yet the
play is not mere fairy-tale. There is a tangible reality to the dramatic properties
or ‘props’ which appear in the play—including rings, bonds, seals and scales—
and these same props were significant in the law of Shakespeare’s England.
There may be no more reality in the world of law than in the world of the play,
but there is at least a real connection between those worlds. Props make the
bridge. This chapter will examine props which have one foot on the shore of
the play and one foot on the shore of law. It will be shown that despite the
different ways in which they perform, the props are constant to one thing on
both shores. This constant, which we might call a law of dramatic properties,
is the use of a part to signify the whole: partem pro toto. This ‘law’ of props is,
of course, a subset of the rhetorical trope synecdoche, just as synecdoche is a
subset of metonymy, and as such it must be significant that synecdoche
occupies the very heart, or more properly the very head, of English law. In the
law of England there is nothing higher than ‘the Crown’. The Crown is
synecdoche for the monarch in Parliament, and the monarch in Parliament is
representative of the people. It is hardly surprising, then, that the crown as
prop forms a well-trodden bridge between the worlds of stage and law in
Shakespeare’s plays.2 In The Merchant of Venice we will discover bridges less
travelled.
1
H Granville-Barker, Prefaces to Shakespeare (London, BT Batsford Ltd, 1958) vol I, 335.
2
When the ‘crown’ prop takes centre stage in Shakespeare’s plays and is expressly referred to as
being part of the present scene, it is surprising how rarely it symbolises the attainment or
238 Gary Watt
A PLAY FRAMED BY PROPS
At the start of Shakespeare’s The Life of King Henry V, the chorus invites the
audience to imagine that the small stage and the small band of actors and the
small span of the play can convey the full time and space and properties of
France:
Into a thousand parts divide one man / … Turning th’ accomplishment of many years /
into an hourglass. (Prologue 24–31)
Parallel language (right down to the duplication of ‘hourglass’) is employed with

parallel purpose at the very beginning of The Merchant of Venice. Salerio,
imagining himself in Antonio’s place, muses:
I should not see the sandy hour-glass run, / But I should think of shallows and of flats,
/ And see my wealthy Andrew, docked in sand, / Vailing her high-top lower than her ribs
/ To kiss her burial; (1.1.26–30)3
Salerio’s musings imply an invitation to the audience to join him in imagining

that a great matter, a shipwreck, may be figured in a small thing, here the sand in
an hourglass. They also introduce the significant metaphoric and allegorical use
of the wrecked ship to indicate Antonio’s wrecked body (the wooden ‘ribs’ of the
ship’s hull presage the ribs from which Shylock threatens to take the pound of
flesh). As The Merchant of Venice begins with the warning that a small thing can
portend the ruin of a man, so the play ends with the same warning. The final
lines are Gratiano’s: ‘while I live I’ll fear no other thing / So sore as keeping safe
Nerissa’s ring’. (5.1.324) The final word is a prop, and its physicality serves to
bring the play full circle. It may be that Gratiano and Bassanio have learned their
lesson (we doubt that they have), but clearly Antonio, who claims in the opening
lines of the play that he ‘will learn’, has learned nothing. Having put his flesh to
hazard at the outset, at the end he hazards his soul: ‘I dare be bound again, / My
soul upon the forfeit’. (5.1.265–6) Ring-like, the Belmont circle of friends are
bound within the confines of their closed world (from which, crucially, Shylock is
maintenance of royal authority. It does occasionally, of course (Henry VI Part 1, 4.1.1–2; Henry VIII,
4.1.42; Titus Andronicus, 1.1.18), but sometimes with unease (King John, 5.1.3; Richard II, 4.1.176–98),
and once jovially (Pericles, 2.3.12: the dominant view is that George Wilkins wrote most of the first
two Acts of this play; see FD Hoeniger (ed), The Arden Pericles (London, Methuen, 1963) ln–lvi).
When the crown prop is at its most central to the stage action it is usually employed to represent the
loss of royal authority (eg Richard III, 5.3.365–6; Henry IV Part 2, 4.2.195–280; Henry VI Part 3, 4.3.50;
Hamlet, 3.2.112–11; Antony and Cleopatra, 5.2.316, 358–9) or to mock pretension to royal power
(Henry VI Part 3, 1.4.95–6). References throughout this chapter are to J Bate and E Rasmussen (eds),
The RSC Shakespeare: Complete Works (London, Macmillan, 2007), unless otherwise stated.
3
The wealthy Andrew mentioned here is reputed to refer to the Spanish ship the San Andrés,
captured during the English expedition to Cadiz in 1596.
The Law of Dramatic Properties in The Merchant of Venice 239
shut out). There are other significant rings in the play, including the ring that
Shylock received from his wife Leah which Jessica is alleged to have taken and
sold (the text says that Shylock received it when he was ‘a bachelor’ (3.2.80),
inviting comparison with the ring that Portia gives to Bassanio). There is also the
signet ring which we can assume that Antonio pressed into the blood-red wax of
the bond. In such auspicious company, Nerissa’s ring might seem a surprising
choice on which to end, but the musings of the common man Gratiano upon the
ring of his commonplace wife bring home the message to the common man in
the audience, that he should take care of what he values in life and not risk losing
it. Read in this way, the final line sounds more like the moral at the end of a
fairy-tale than the ‘obscene pun’4 that can be read into it. Yet it is Portia’s ring, the
one she gave to Bassanio, that signifies most.
PORTIA’S RING
Portia’s ring exemplifies the principle partem pro toto. Bassanio says of the ring,
‘[t]here’s more depends on this than on the value’ (4.1.443),5 and it turns out that
a very great deal is conveyed by this one small prop. Portia’s ring is nothing less
than the symbolic representation of her whole person and of all of her property
too. Portia expresses as much when she declares to Bassanio: ‘This house, these
servants and this same myself / Are yours, my lord. I give them with this ring’
(3.2.173–4).
As a gesture of largesse the declaration seems plain enough, but ‘there’s more
depends on this’. For one thing, Portia is usurping her father’s patrimonial
authority over her. The whole point of the casket test was to convey Portia in the
form of the portrait prop in the leaden casket, but here Portia purports to convey
herself in the form of another prop; and, crucially, Portia’s choice of prop is more
figurative and therefore more totemic. The transfer of the portrait obviously
symbolises the transfer of the whole, but a portrait is just too obvious. It lacks the
figurative dimension that one associates with a genuine instance of synecdoche. A
miniature picture of the whole leaves very little to the imagination as compared
to an abstract prop that symbolises the whole, so the portrait lacks the dramatic
force of partem pro toto. It does not obey the law of dramatic properties, and,
compared to the ring, it suffers for it. The conveyance of Portia’s ring is the truly
powerful conveyance in terms of its representational power and its place in the
plot. Portia complains in her first scene that her will has been ‘curbed by the will
4
Karen Newman, ‘Portia’s Ring: Unruly Women and Structures of Exchange in The Merchant of
Venice’ (1987) 38(1) Shakespeare Quarterly 19, 32. It cannot be denied that Gratiano favours a sexually
suggestive strand of synecdoche, as when he threatens to “mar the young clerk’s pen” (5.1.249).
5
This line might also be a ‘metatheatrical joke’, given that the ‘gold’ ring prop was probably made
of copper or other cheap metal (see C Ronan, ‘Anatomizing Shakespeare’s Jewelry’ (2006) 23(2)
Discoveries (online)).
240 Gary Watt
of [her] dead father’. (1.2.16–17) This subjection to her father’s will provides the
dramatic tension for the first part of her story. Later, immediately the casket test
is concluded, she takes matters into her own hand by voluntarily conveying
herself by the ring. We will see that by the transfer of this prop she pays formal
lip-service to the legal world of men while in substance subverting it; and this
provides dramatic tension for the second part of her story.
The name Portia has a number of candidate etymologies. One derives from the
Latin porcus meaning ‘pig’,6 which confirms a stark opposition to the Jew Shylock,
whom she brings to ruin. Another alludes to the lex Porcia, a name given to a
number of pre-Christian Roman laws which forbade scourging of Roman
citizens and placed significant restrictions on the capital punishment of Roman
citizens; because the lex Porcia was a law of mercy, it evokes Portia’s rhetoric of
mercy and her legalistic intervention to spare the flesh of the citizen Antonio.7
However, the most obvious significations for the name Portia, and the most
pertinent for present purposes, are not etymological at all. They are the senses
‘portion’ and ‘porter’ which are evoked by the very sound of her name. These
senses are pertinent because Portia is a whole transported as a part or ‘portion’ of
the whole. The word-play culminates in the fact that Portia is represented as a
‘portrait’, and there may even be an oblique reference to the financial ‘marriage
portion’ that a wife brought to an Elizabethan marriage by way of dowry.8 But
Portia is not merely the transported ‘portion’; she is also the ‘porter’ who carries
and conveys herself with great purpose through the play. Her name captures her
conflicting characteristics of independent self-determination and vulnerable
subjection. When, in her opening line, Portia confides in Nerissa that her ‘little
body is aweary of this great world’ (1.2.1) she objectifies herself and alienates
herself from the body, the small frame, that she carries and is conveyed by others.
Crucially, though, she is aware that her weariness is attributable to the fact that
she is a portion bound to be conveyed in the merchant world of men. We recall
that Antonio, in his opening lines, felt the same weariness, but, unlike Portia,
lacked awareness to see its source: ‘In sooth, I know not why I am so sad. / It
wearies me, … / And such a want-wit sadness makes of me / That I have much
ado to know myself ’. (1.1.1–7) It takes his friends to point out that his weariness
(like Portia’s) is caused by the work of great forces upon his small frame. Salerio
informs Antonio that his ‘mind is tossing on the ocean’ bound up with his
‘argosies with portly sail’. (1.1.8–9) To which Salanio adds, ‘had I such venture
forth, / The better part of my affections would / Be with my hopes abroad’.
6
The name Portia is said to derive from the Roman clan, the Porcii, who were breeders of pigs
(Newman, n 4 above, at 23 n17).
7
However, just as the lex Porcia showed no mercy to non-citizens (including, significantly, Jesus
of Nazareth), so too the ‘lex Portia’ extended no mercy to the non-citizen Shylock. In this respect the
Jew Shylock is more Christ-like than the Christian Antonio.
8
L Engle, ‘“Thrift is Blessing”: Exchange and Explanation in The Merchant of Venice’ (1986) 37(1)
Shakespeare Quarterly 20, 33. See also, Germaine Greer, Chapter 4.
(1.1.15–17) From the perspective of transporting portions and the principle

partem pro toto, phrases like ‘portly sail’ and ‘better part’ suggest new significance.
But now to the law.
Portia’s line, ‘[t]his house, these servants and this same myself / Are yours, my
lord. I give them with this ring’ (3.2.173–4) appears in a passage containing the
terms ‘in gross’ and ‘converted’, both of which carry technical significance in the
law of property,9 so we should not be surprised to find that the line itself contains
legal allusion. Indeed, it is from a legal perspective that Portia’s giving of the ring
achieves its real power and its supremacy over her father’s capricious casket test.
When Shakespeare was writing, the public giving of a ring was a well-known
method of transferring title to freehold land. It was a symbolic method, a piece of
legal theatre, but its effect was real. It is, of course, physically impossible to
transfer legal title to land or even to transport the land itself (even if all the soil
were moved, the physical space that is the land would remain), so a ritual was
devised (known as ‘livery of seisin’) by which title to land could be transferred by
the public, symbolic delivery of a physical part: partem pro toto. Frequently the
part was a sod or turf cut from the land with a knife (as one might cut a pound of
flesh) or a twig was cut from a tree growing on the land. As William West puts it
in Symboleography, published shortly before Shakespeare wrote The Merchant of
Venice:10
we may well define Liverie of seisin to be a Ceremonie in our law, used in the conveying
of lands or tenements … The usuall maner of deliverie of seisin of houses, lands,
tenements is, that the feoffor and feoffee if they be present … do come to the house or
place whereof seisin is to be delivered: And there in the presence of Sundry good
witnesses openly reade, or cause to be read, the deed of feoffement, and letter of
Atturney thereof, or to declare the verie effect thereof before them in English: Which
being so done, the feoffor or his Atturney must take a clot of earth, or a bough, or a twig
of a tree thereupon growing, or the ring or hasp of the doore of the house, and deliver
the same with the said deed unto the feoffee or his Atturney, saying: I deliver these unto
you in name of possession and seisin of all the landes and tenements contained in this
deed to have and to hold according to the forme and effect of the same deede. If the
feoffment be without deed (as it may well be) then at the time of the deliverie of seisin,
must bee expressed the very estate which the feoffee must have thereby.11 (emphasis added)
9
Where a property right exists ‘in gross’ it exists independent of any need to show that it is
derived from a greater title. Portia gives herself ‘in gross’ in the sense that she gives herself as an
independent whole. ‘Converted’ carries a similar meaning in law to that which it carries in religion. It
denotes a fundamental change of substance even though the outer form remains unaltered. According
to the ‘doctrine of conversion’, ‘equity will in certain circumstances regard personal property as real
property’: G Watt, Trusts and Equity (3rd edn, Oxford, Oxford University Press, 2008) 545; Fletcher v
Ashburner (1779) 1 Bro CC 497, per Sir Thomas Sewell MR at 499. The audience is prompted to
imagine a similar alchemical transformation when Portia hands over the ring.
10
See the main text accompanying n 35 below.
11
W West, Symboleographie, which May be Termed, the Art, or Description, of Instruments etc
(revised edn, London, Richard Tottle, 1592) Part I, Book II, 251.
242 Gary Watt
In the first part of his Institutes, Sir Edward Coke says that the feoffor may go on
the land and take ‘the ring of the doore or turfe or twigge of the land and deliver
the same upon the land to the feofee in name of seisin of the land’;12 citing
Bracton’s phrase ‘per ostium et per haspam vel per anulum’.13 Portia’s words,
spoken on the soil of her Belmont estate, are clearly reminiscent of the livery
ceremony, but the authors of The Law of Property in Shakespeare and the
Elizabethan Drama14 seem confident that ‘Shakespeare does not refer to [livery of
seisin] at all’15 and another author is equally confident that Shakespeare ‘never
mentions the subject’.16 It is true that the words ‘livery of seisin’ do not appear in
Shakespeare’s works, but Portia’s reference is express enough, and at least one
other author thinks so.17 But will a finger ring suffice or must it be the ring of the
door to the house? Holdsworth recorded that ‘a sod from the churchyard will do,
or a knife without any sod, or a glove, or indeed any small thing that lies handy’.18
The fact that a knife or glove will suffice indicates that the token of transfer needs
no direct connection to the land. The knife is merely a prop to symbolise the
cutting of land and the glove is nothing more than a token (unless it is meant to
symbolise the ‘handing over’ of the land). Could a gold ring perform in a similar
way? Apparently it could. In his book The Seisin of the Freehold, Joshua Williams
observes that ‘[i]t was not … necessary that the article delivered should be
anything concerning the land … the delivery of a parchment deed or of a gold
ring in the name of seisin, was quite sufficient for the purpose’.19 As authority for
this observation Williams cites a case decided towards the end of Shakespeare’s
lifetime.20 In fact, the case he cites makes no reference to a gold ring. It does,
however, mention that a piece of gold or silver will suffice (which seems highly
appropriate given how closely gold is physically bound up with land),21 and it is
12
Sir Edward Coke, The First Part of the Institutes of the Lawes of England (1628) 59, 60.
13
‘[B]y the door, the hasp, or the ring of the house’: Henry de Bracton, De Legibus et
Consuetudinibus Angliae li 2 ca18 s 12.
14
PS Clarkson and CT Warren, The Law of Property in Shakespeare and the Elizabethan Drama
(New York, Gordian Press, 1968). This is the corrected reprint of the 1st edn (Baltimore, John
Hopkins Press, 1942).
15
Ibid 113
16
Arthur Underhill, ‘Law’ in S Lee and CT Onions (eds), Shakespeare’s England: an Account of the
Life and Manners of his Age (Oxford, Clarendon Press, 1916) 381 at 404.
17
AG Harmon, Eternal Bonds, True Contracts: Law and Nature in Shakespeare’s Problem Plays
(Albany, State University of New York Press, 2004): ‘The significance of the contractual token, the
ring, is more than symbolic in these terms. It becomes a requirement to the contract’s solemnization.
Similar to English land transactions of Medieval and Renaissance times’ (at 92); ‘it entailed the
delivery of a clod of earth, a twig, a hasp of the door or—most significantly, for my purposes—its
ring, which symbolized the whole of the land conveyed’ (at 12).
18
WS Holdsworth, A History of English Law (London, Methuen, 1923) (rewritten 3rd edn of vols
II–III) 86, cited in SE Thorne, ‘Livery of Seisin’ in Essays in English Legal History (London, The
Hambledon Press, 1985) 31–50.
19
Joshua Williams, Esq, ‘The Seisin of the Freehold’ in Twelve Lectures Delivered in Gray’s Inn Hall
(London, H Sweet, 1878) 99.
20
Thoroughgood’s Case (1611/12) 9 Coke’s Rep 136b, 137b, in the Court of Wards (also reported at
77 Eng Rep 925).
21
See Carolyn Sale, Chapter 9.
plausible to suppose that a gold ring, being gold in a readily available and easily
retainable form, was sometimes used. Portia’s giving of her estate by the ring now
makes perfect sense. If it is an allusion to any legal rite, it is an allusion to livery of
seisin. Certainly it makes more sense, in terms of legal symbolism, than to regard
it as a simple betrothal ring. Leaving aside the fact that the ring was passed from
the woman to the man, a betrothal ring would not have been intended to pass
legal title to real estate; and a wedding ring, which did entail a moral (though not
a legal) transfer of property (the Tudor ceremony contained the words ‘With thys
ring I thee wed: Thys golde and siluer I thee geue: with my body I thee wurship:
and withal my worldly goodes I thee endoew’),22 was of course not passed until
the marriage ceremony itself. The play makes it clear that Portia’s transfer of the
ring precedes her marriage.23
Nor should we doubt that livery of seisin was a common public spectacle in
England during Shakespeare’s lifetime. Its popularity had decreased somewhat
after the Statute of Uses (1535) permitted conveyance by deed in certain
situations, but formal documentary conveyance was not a requirement until the
Statute of Frauds (1677).24 It must still have commanded popular recognition
and respect in 1583, because public delivery of a twig and turf was the very
method chosen by the colonists at St John’s Harbor to perform the first English
settlement of the New World.25 And it must still have been well known in 1616
when Ben Jonson mentioned it in The Devil is an Ass,26 and in 1623 when The
Devil’s Law Case, John Webster’s play of merchants and lawyers, was first
published. In that play the merchant Romelio has the line ‘Keep your possession,
you have the door by th’ ring; / That’s livery and seisin in England’. (1.2.117–18)
Thus Webster makes express what Shakespeare implies. Of course, Webster does
not get the expression quite right. The law is ‘livery of seisin’ not ‘livery and seisin’,
but Webster was in good company in this respect. Edmund Spenser made the
same mistake in Book VI of The Faerie Queene,27 published around the time
Shakespeare was writing The Merchant of Venice.
The case for livery of seisin is clearly made out, but we should not forget that
the transfer of Portia’s ring was not merely, or primarily, a stage rendition of legal
theatre, it was also the passing of a prop intended to denote the figurative passing
22
Prayerbook of Edward VI.
23
3.2.310.
24
Even then, livery could be used alongside the deed. Livery of seisin was finally abolished in
1926, by the Law of Property Act 1925, s 51(1).
25
Sir Humphrey Gilbert ‘had delivered unto him (after the custom of England) a rod [small twig]
and a turf of the same soil’: Richard Hakluyt, The Principall Nauigations, Voiages and Discoueries of the
English Nation (Hakluyt Society Publications, Glasgow, 1904 (1598–1600)) vol VIII, 53–4; cited by P
Seed, ‘Taking Possession and Reading Texts: Establishing the Authority of Overseas Empires’ in
Stanley N Katz et al (eds), Colonial America: Essays in Politics and Social Development (5th edn) (New
York: McGraw-Hill, 2001) 19, 20–1.
26
Fitz-Dottrell says ‘get the Feoffment drawn, with a Letter of Atturney, / For Livery and Seisin’.
(4.5.16–17)
27
(1596) Book VI, iv, 37.
244 Gary Watt
of Portia’s whole person, partem pro toto. As Bassanio says: ‘when this ring / Parts
from this finger, then parts life from hence’. (3.2.186–7) Yet Portia’s words are not
as generous as at first they seem:
Myself, and what is mine, to you and yours / Is now converted. But now I was the lord
/ Of this fair mansion, master of my servants, / Queen o’er myself, and even now, but
now, / This house, these servants and this same myself / Are yours, my lord. I give them
with this ring, / Which when you part from, lose, or give away, / Let it presage the ruin
of your love / And be my vantage to exclaim on you. (3.2.169–77)
Portia confirms that, up until this moment, she has been ‘lord’, ‘master’, ‘Queen
o’er myself ’. Despite formal subjection to her father’s will, she lacks no confidence
in her own authority and independence. It is fitting, then, that the outward giving
of herself by the ring turns out to be in substance a taking of Bassanio by the ring.
The dynamic is one of taking by giving.28 Shakespeare allows Portia the advan-
tage of dramatic foresight to anticipate the loss of the ring and she anticipates her
entitlement to berate her lover in that event. The result is a subversion of the
outward show of gift and with it a subversion of the legal world of men (a
subversion which will shortly be perfected in her courtroom performance as the
lawyer ‘Balthasar’). The moment Bassanio accepts Portia’s ‘gift’ of her ring, he is
bound to her; paralleling the way in which Antonio’s ‘gift’ (the loan) to Bassanio
binds Bassanio to Antonio, and Shylock’s ‘gift’ (the waiver of interest) in favour of
Antonio binds Antonio to Shylock. Portia’s ring on Bassanio’s finger, no less than
Antonio’s signet ring with which he sealed the bond, forms a link in the chain of
enthralment that runs through the play.
THE SCALES
When Bassanio says ‘beauty [is] purchased by the weight’ (3.2.90–1), he perfects
the equation of Portia and wealth, and, further emphasising the play’s broad
theme of ‘human as commodity’, his words can be read as an allusion to the
Roman ceremony of mancipatio, by which property (including slaves) was
purchased by striking a weight of copper (aes) against a set of scales held by the
libripens in the presence of five adult witnesses (cives).29 The copper weight
symbolised the purchase price, but apparently was not actually handed over,
28
The same dynamic operates when Shylock lends money without interest. It is a shame that
Antonio did not follow the example of ‘Father Abraham’ of the Old Testament. Abraham (and
Shylock, it can be assumed) understood the danger of accepting a gift from a member of a foreign
tribe (see Genesis 23:13–16, discussed in G Watt, ‘Breed of Metal and Pound of Flesh: Faith and Risk
in Metaphors of Usury’ (2007) 2 Polemos 95, 112).
29
WW Buckland, A Manual of Roman Private Law (Cambridge, Cambridge University Press,
1928) 121.
being purely symbolic of the real payment to follow. This is where mancipatio
differed from traditio. Traditio— which is the etymological origin of two central
and conflicting themes in The Merchant of Venice: ‘trade’ and ‘tradition’—
involved an actual handing over of the ‘prop’, the symbol of conveyance (hence
Bracton identified livery of seisin as a direct descendant of the Roman traditio).30
When Shylock appears in the courtroom carrying a knife and a set of scales he is
no doubt a parody of the iconic goddess Justitia (she with sword and scales), but
now we can also see in his props a symbol of Roman slavery (the scales) and of
English land transfer (the knife). It is doubtful that Shakespeare had the latter
signification in mind, but allusion to mancipatio of slaves is hinted at in Shylock’s
line ‘You have among you many a purchased slave, / Which, like your asses and
your dogs and mules, / You use in abject and in slavish parts, / Because you
bought them’ (4.1.91–4). It is tempting to suppose that ‘asses’ was chosen because
Shakespeare sub-consciously recalled the ‘aes’ from the mancipatio ceremony.
More plausibly, we can find a joke in the line: Shylock is alluding to the fact that
the so-called ‘free’ citizens of Venice, Antonio and Portia included, not only trade
in slaves but also trade themselves as if they were slaves.
THE POUND OF FLESH
Shylock’s security is, as he tells Antonio, ‘an equal pound / Of your fair flesh, to be
cut off and taken / In what part of your body pleaseth me’. (1.3.141–3) The
pound is, as Shylock says, only a part of the whole, but we know as well as he that
the part represents the whole. This becomes clearer when Shylock chooses for the
allotted part the flesh nearest Antonio’s heart. The pound is Antonio, partem pro
toto. The choice of the word ‘pound’ emphasises the synecdoche: it tells us that
Antonio is figuratively ‘made of money’; Antonio admits as much when he
exclaims ‘my purse, my person’ (1.1.140). Of course Antonio’s person, and
presumably his purse, are both visible on stage, but his pound of flesh never is. It
perhaps follows that the pound of flesh cannot qualify as a prop stricto sensu, but
in some ways its invisibility, through corporeal occlusion, serves actually to
enhance its dramatic power. An object is created in the imagination by outlining
an empty space in the mind into which that object, and that object only, can fit.
Thus, absence can create a stronger sense of presence than presence itself. The
rhetorical device of ellipsis operates in the same way.31
30
Henry de Bracton, De Legibus et Consuetudinibus Angliae li 2 ca 18.
31
A pound of animal flesh can be employed as a prop in the play. An example appears in the
opening scenes of the 2004 film production starring Al Pacino as Shylock, where he is shown
purchasing a weight of animal flesh at market. The use of flesh as a prop can assist in the imaginative
process of substantiating Antonio’s pound of flesh, but the risk is that the prop will usurp the
imaginary space reserved for Antonio’s pound of flesh and thereby defeat its dramatic object.
246 Gary Watt
We have already observed that from the very start of the play, Antonio’s body is
paralleled with the physical form of his absent ships. In this way Shakespeare
captures the imagination of the audience from the outset through the drama of
anticipation: either Antonio’s ships must ‘appear’ or his pound of flesh must.
When we hear the rumour that Antonio’s ships are wrecked off-stage, our
expectation is heightened that we will soon see Antonio’s body wrecked on stage.
Antonio’s discomfiting associates, Salerio and Solanio, develop the rumour at the
end of Act 2 scene 8, and in the very next scene the casket game resumes at
Belmont. This juxtaposition of the ‘shipwreck’ scene with the quest to reveal
Portia’s hidden portrait heightens the expectation that Antonio’s hidden pound
of flesh will shortly make an appearance on stage. Two short scenes later, Portia’s
portrait is at last discovered and Antonio’s letter reaches Belmont with the news
that Antonio’s ships have all been wrecked. So the moment Shakespeare sates our
appetite to see the hidden part that represents Portia’s all (the portrait in the
casket), he intensifies our appetite to see the hidden pound of flesh that
represents Antonio’s all. Bassanio’s language reveals that his imagination has
already foreseen the worse: ‘Here is a letter, lady, / The paper as the body of my
friend, / And every word in it a gaping wound, / Issuing life-blood’. (3.2.268–71)
Obedient to the law of dramatic properties in the play, Bassanio is blatant in
using the letter prop partem pro toto as synecdoche to embody Antonio’s utter
ruin.
It is not only Antonio’s friends who see Antonio embodied in his ships.32
Antonio makes the link himself. The letter read out in Belmont reports that his
‘ships have all miscarried’ (3.2.322) and that word ‘miscarried’ he later applies to
his own body: ‘I once did lend my body for thy wealth; / Which, but for him that
had your husband’s ring, / Had quite miscarried’. (5.1.263–5) The purse, the letter
and the pound of flesh are parts which represent Antonio’s whole in accordance
with the dramatic law of partem pro toto, but the ship might be said to function as
a more mundane form of metonymy. At first sight there is no synecdoche, no part
representing a whole, but this is where the law comes in again.
Shakespeare borrowed the ‘pound of flesh’ bond, as he borrowed so much of
the plot of The Merchant of Venice, from a medieval Italian tale in Ser Giovanni’s,
Il Pecorone;33 hence the undeniable fairy-tale qualities of the play. Just as the
Italian tale was drawing on folk-memory of the flesh-bond in early Roman law,34
so Shakespeare drew upon the nature of legal bonds ancient and modern. It
would be a mistake to attempt an exact identification of the Antonio-Shylock
32
See, further, n 3 above.
33
The Pecorone of Ser Giovanni (WG Waters (trans, London, Lawrence and Bullen, 1897).
34
The Twelve Tables provided for creditors to take shares in the corpse of an insolvent debtor:
‘tertiis nundinis partes secanto: si plus minusque secuerunt, se fraude esto’ (‘on the third market day let
them cut the shares. If they have cut too much or too little, be it free from blame’, RW Lee (trans)). Lee
makes the point that the last words ‘anticipate and avoid’ Portia’s unreasonable assertion that Shylock
would have to die if he took so much as a hair’s weight too much of Antonio’s flesh (4.1.330–8). See
RW Lee, The Elements of Roman Law (4th edn, London, Sweet and Maxwell, 1956) 428.
bond with any particular form of legal bond, but it has similarities with several
that were current at the time the play was written. First published in 1590,
William West’s Symbolæography appeared as a corrected second imprint in
1592,35 around six years before Shakespeare finalised the text of The Merchant of
Venice.36 West’s book was, amongst other things, a handbook on forms of legal
instruments, and it describes several forms of bond. Some are reminiscent of
Antonio and Shylock’s transaction before the notary, especially a form of bond
known as ‘Statute Merchant’:
A Statute is a Bond of Record sealed, testifying the Debtor to ow unto the Creditor a
certaine summe of mony, And the same Bond is knowledged before such persons & in
such manner as is appointed by Statutes in that behalfe made. And thereof bin such
bonds termed Statutes, & they be of two sorts, that is to say, Statutes Marchant, and
Statutes Staple. A Statute Merchant is a Bond knowledged before one of the Clerkes of
the Statutes Merchant and Maior or chiefe Warden of the Citie of London, or two
Marchants of the said City for that purpose assigned, or before the Maior, chief Warden
or Maister of other cities or good towns, or other sufficient men for that purpose
appointed, And sealed with the Seale of the debtor … The execution upon Statutes
Merchant is first to take the bodie of the debtor if he be lay & can be found, if
otherwise, then upon his lands and goods.37
There are also parallels between the Antonio-Shylock bond and an Elizabethan
maritime bond; parallels which have hitherto escaped scrutiny. The bond is
known as the ‘bottomry bond’.38 The essence of the bottomry bond is that the
owner of a ship borrows money in some emergency and grants the keel or
bottom of his ship as security for the loan. If the bottom is lost, so is the ship. If
the ship is lost, so is the loan. The great risk taken by the lender is offset by
exemption from the normal rules against usurious rates of interest. The bottomry
bond and the ‘pound of flesh’ bond are in no technical sense the same (for one
thing, the Antonio-Shylock bond was interest-free), but they have striking
features in common. Both operate partem pro toto and in both cases the lender
derives no material benefit from possession of the security: a lender with a
bottomry bond does not want the bottom of a wrecked ship, and neither is there
benefit to Shylock in Antonio’s flesh (1.3.155–9)—apart, perhaps, as bait for fish
35
West, Symboleography, n 11 above.
36
Henslowe’s Diary refers to ‘the venesyon comodey’ performed on 25 August 1594, which may
have been an early version of Shakespeare’s The Merchant of Venice. Even so, we can be fairly sure that
certain elements were not added until 1596 (see eg, the reference to the ship The Andrew, discussed in
n 3 above) and it is reasonable to assume that the play was corrected right up until it was submitted
for printing on 22 July 1598 (it is entered in the Stationer’s Register on that date: Arber’s Transcript,
vol iii, 122). Of course, the play might even have received further minor amendment prior to its actual
print publication in 1600.
37
West, Symboleography, n 11 above, Part I, Book II, 151.
38
The bottomry bond is no longer used in practice, but in theory it remains a part of the
jurisdiction of the Admiralty Court. The Supreme Court Act 1981, s 20(2)(r) refers to ‘any claim
arising out of bottomry’.
248 Gary Watt
(3.1.37). Another point in common is that the borrower in both cases retains
possession of the security (the boat and the pound of flesh respectively) even
after the bond is sealed.39 Parallels between the fictional bond and the bottomry
bond are made possible because Shakespeare had the idea (he did not derive it
from Il Pecorone) of employing Antonio’s ships as metonymy for Antonio’s body.
There is no evidence to suggest that Shakespeare had actually heard of the
bottomry bond, but we do know that the bodemerij bond was widely used in
Holland in the 1590s,40 by which time it was already very well established there,41
so it must have come to the attention of London merchants by the time
Shakespeare wrote the play. The bond is recognised in an English court report in
1614 (though not by name),42 and it must have been very well known to English
merchants by 1622, when Malynes wrote his seminal text on merchant law,
Consuetudo vel Lex Mercatoria. By then it had been Anglicised as ‘Bottommarie’
and had enjoyed an extensive commercial history. Malynes records that it had
already been associated with widely varying interest rates:
The name Bottommarie is derived by the Hollanders from the Keele or Bottome of a
ship . . . The money so taken up by the master of the ship, is commonly done upon
great necessitie … the use payed for the same is verie great, at 30, 40, and 50 pro cent.
without consideration of time.43
39
In other words, the security takes the form of hypothec rather than pledge.
40
JI Israel, Dutch Primacy in World Trade 1585–1740 (Oxford, Clarendon Press, 1989) 76–7. Israel
notes that the interest on bottomry loans for voyages to Russia in the 1590s was around 15 per cent
(citing Simon Hart, Geschrift en getal (Dordrecht: Historische Vereniging Holland, 1976) 299–300).
He refers to one loan made in 1598 (the year The Merchant of Venice went to press) that was at 44 per
cent interest (GA Amsterdam NA 80, fs 134–5). For recent commentary, see W Fritschy, ‘Holland’s
Public Debt and Amsterdam’s Capital Market 1585–1609’ in C Sanz Ayán and BJ García García (eds),
Banca, crédito y capital. La Monarquía Hispánica y los antiguos Países Bajos (1505–1700) (Madrid,
Fundacion Carlos de Amberes, 2006) 39–59.
41
Bottomry is listed in the Amsterdam archives many years before modern-style insurance is
mentioned. JP Vergouwen notes that ‘In the . . . Amsterdam Ordonnantie (mid-15th century),
bottomry, or an early form of bottomry, is mentioned. Insurance is not mentioned in any way’. (De
Geschiedenis Der Makelaardij in AssurantiënHier te Lande Tot 1813 (Zuid-Hollandsche Uitgevers Mij.
’s-Gravenhage, 1945) 13 n 2). The same author makes a similar observation in relation to an
Amsterdam ordinance of 26 January 1579 (Municipal Archives of Amsterdam, By-laws, Book C, f
191). Vergouwen states, at 29, that ‘in the quite elaborate list of brokers’ fees, as determined by the
Amsterdam by-law of 26th January 1579, bottomry is listed, but insurance is not’. Another author has
found an ordinance issued by the Heeren van de Gerechte (municipal authorities) dated 28
October 1578 which states that a broker will not lend on bottomry to shippers (masters/captains)
‘whom they know to be broke and to have spent too much, or of whom they have such suspicions’
(‘De maekelaers (art 4) zullen geene schippers, die sij weten berooyt ende de beurs ten achteren
geteert te hebben, ofte daervan wij sulx vermoeden hebben, helpen aan eenige bodemerij’, from Th
Stuart, De Amsterdamsche Makelaardij (Amsterdam, 1879). He states that the ordinance is to be found
in the Keurboek (Municipal Archives of Amsterdam, By-laws) Book F, f 160, of 28 October 1578. For
finding and translating these sources, I am most grateful to Sabine Go, a graduate student of the Vrije
Universiteit, Amsterdam.
42
Bridgeman’s Case (1614) Hob 11, and 1 Roll Abr 350 [(C)], pi 2; 80 Eng Rep 162.
43
Gerard Malynes, Consuetudo vel Lex Mercatoria (London, Adam Islip, 1622) 171.
The notion of taking the ship itself as security was not a new one; it goes at least
as far back as the Romans.44 What was new was the language of taking the keel or
bottom of the boat and by the time Blackstone comes to define bottomry in his
Laws of England, he makes express the fact that the keel or bottom of the ship is
offered ‘partem pro toto’.45 When Antonio boasts that his ‘ventures are not in one
bottome trusted’ (1.1.43) the word ‘bottome’ was certainly being used as standard
Elizabethan vernacular for boat (indeed the whole phrase ‘in one bottom’ is later
used by a number of Elizabethan and Jacobean dramatists, and by Malynes
himself, to indicate dangerously undiversified risk), but Shakespeare might also
have had the bottomry bond in mind. Even if he did not, it is highly likely that
merchants in his audience did.
At the end of the courtroom scene in Act 4, Shylock finds himself in the
position in which he had imagined Antonio. By taking Antonio’s pound of flesh
he would have killed Antonio, partem pro toto. Now with the threat that his house
will be taken from him, Shylock anticipates that his life will pass with his house,
partem pro toto: ‘You take my house when you do take the prop / That doth
sustain my house. You take my life / When you do take the means by which I live’.
(4.1.382–4) In Tudor England, the props were the wooden foundations upon
which the whole house was built; so just as Antonio’s life was built upon the
wooden bottoms (the ‘ribs’) of his ships, so Shylock’s life was built upon the
wooden foundations of his house; in both cases partem pro toto, in accordance
with the law of dramatic properties.
In summary, we can see that the bridge between the play and the law is built
out of ‘properties’ or ‘props’ in multiple senses of the word. The ‘dramatic
properties’ (props) have the dramatic property (quality) of synecdoche, which is
to say that they obey the dramatic law of partem pro totem, and by this property
they link the play to the law of property that governs such things as rings and
ships. Finally, the whole world of the play from Shylock’s house to Antonio’s
ships, even the stage itself, is built upon wooden props.
ACT 6 OF THE MERCHANT OF VENICE
It is all too easy for lawyers to treat Act 4 scene I of the play as if it were the whole
play. Andrews’ book falls into this trap.46 Taking a wider view, Weisberg stresses
the need for lawyers in particular to rediscover the significance of Act 5,47 and
44
Dig 22, 2 Code, iv; Dig 45.I.122.I.
45
Sir William Blackstone, Commentaries on the Laws of England (1765–69) Book II, cap xxx.
46
ME Andrews, Law Versus Equity in The Merchant of Venice (Boulder, University of Colorado
Press, 1965).
47
Richard H Weisberg, Poethics (New York, Columbia University Press, 1992) 94–104.
250 Gary Watt
Kornstein invites us to imagine an Act 6.48 Just as the play begins and proceeds
with an invitation to imagine the progress of Antonio’s ships off-stage, so it
concludes in a way which forces us to contemplate the action off-stage after the
play’s conclusion. The imagination is compelled to this by the total and profound
absence of Shylock from Act 5. So if we accept the invitation to imagine Act 6,
what do we find? We find that the most significant action of Act 6 is Shylock’s
forced conversion to Christianity, in accordance with the cruel condition that
Antonio set upon the commutation of Shylock’s capital sentence. (4.1.393–4) The
forced conversion is significant in many ways, mostly because it contains a chill
echo of the Venetian inquisitions49 and the first Jewish ghetto (with the terrible
significance which that now carries for the modern reader), but also because it
obeys the law of dramatic properties that runs through the play, the law of partem
pro toto.
The conversion of Shylock would have entailed two of the most significant
public rituals in Elizabethan England: Baptism at the font, followed by the
Eucharist. If we assume that Shylock did indeed submit to the sentence of
conversion he would, in receiving the sacraments of Baptism and the Eucharist,
have received what Sir Francis Bacon called the ‘seals to the covenant’.50 Thus,
Shylock’s faith in the resilience of the wax seal on Antonio’s bond (4.1.141) comes
back to haunt him in the form of a truly inviolable seal. In his book, The Stage
Life of Props, Andrew Sofer, calls the Eucharist wafer the ‘ur-prop of post-classical
Western drama’.51 It is certainly a candidate for that label, and in the course of
this chapter we have discovered why. The Eucharist wafer is the embodiment of
synecdoche as it is the embodiment of Christ. 1577 saw the publication of
Christoph Rasperger’s Roman Catholic pamphlet, Ducentae Paucorum,52 which
comprises an annotated catalogue of theological interpretations of Christ’s words
‘this is my body’. One interpretation is listed as ‘corpus scilicet accipiendum esse
pro pane et corpore simul, partem pro toto’ (‘the body is of course accepted to be in
essence bread and flesh at the same time; a part for the whole’).53 Antonio is not
convincingly Christ-like at heart, but he is figured to represent or parody aspects
of the New Testament account as Shakespeare’s audience would have understood
it, including taking on another’s debts to the point of laying down his life at the
hands of a Jewish adversary and an ‘Italian’ judge. It follows that when Shylock is
forced to eat the Eucharist wafer, and is therefore eating the body of Christ
(figuratively or really depending upon one’s theology), he is also eating Antonio’s
flesh insofar as Antonio was intended to portray Christ. The audience watching
48
Daniel J Kornstein, Kill All the Lawyers?: Shakespeare’s Legal Appeal (Princeton, Princeton
University Press, 1994) ch 4. In his ‘Act VI’ he posits an appeal by Shylock to a modern court.
49
See B Pullan, The Jews of Europe and the Inquisition of Venice 1550–1670 (London, IB Tauris,
1997) 264 (reprinted edn of the 1st edn, 1983).
50
The Advancement of Learning (1605) cap XXV.
51
A Sofer, The Stage Life of Props (Ann Arbor, University of Michigan Press, 2003) 31.
52
Ducentae paucorum istorum, et quidem clarissimorum, Christi verborum: Hoc est Corpus meum.
53
Cap VI interpretatio lxxix.
Act 6 will see Shylock acquire the pound of flesh at last, and with it the desolation
of Antonio’s life: partem pro toto. Antonio is sad at the start of the play, and
Shylock takes his sadness at its conclusion. This is no ‘fairy-tale’ ending.
16
Shylock in Transylvania:
Anti-Semitism and the Law in East
Central Europe
ISTVÁN POGÁNY*
JEWS AND GENTILES IN SHAKESPEARE’S

EUROPE
HAKESPEARE WROTE The Merchant of Venice in the last decade

of the sixteenth century. At the time, only small numbers of Jews
lived in England following the wholesale expulsion of the country’s
Jewish population in 1290. This mass expulsion, or ‘ethnic cleansing’ as we would
now label it, had been the culmination of a period in which England’s Jews were
subject to pogroms, false accusations and multiple, judicially-sanctioned execu-
tions, while their assets were progressively appropriated by the Crown in a
process that was as cynical as it was rapacious.1
In Shakespeare’s time, most of the Jews living in London were Marranos.
Descendants of Spanish and Portuguese Jews who had been forcibly converted to
Christianity, many Marranos continued to practice Judaism in the privacy of their
homes.2 However, the position of Jews in late sixteenth century England, whether
Christian converts or not, was precarious. In 1609, little more than a decade after
The Merchant of Venice was written, ‘Portuguese merchants in London who were
suspected of Judaizing … were expelled from the country’.3 In 1593–94, as
* All translations from Hungarian and French, unless indicated to the contrary, are by the
author. I am grateful to Dr Paul Raffield for his helpful comments on an earlier draft of this
chapter and to the British Academy for a grant that enabled me to undertake research in Hungary
and Transylvanian Romania.
1
Cecil Roth, A History of the Jews (rev edn, New York, Schocken Books, 1970) 207–9.
2
See, generally, on the Marranos, or ‘new Christians’, LP Gartner, History of the Jews in Modern
Times (Oxford, Oxford University Press, 2001) 12–17.
3
Roth, n 1 above, at 301.
254 István Pogány
Shakespeare and his audiences would have been aware, Dr Roderigo Lopez, a
Jewish physician who had treated Queen Elizabeth I, was arrested, tortured and
executed, ‘the victim of a notorious anti-Semitic witch-hunt and treason trial’.4
Although the actual number of Jews in late sixteenth and early seventeenth
century England was modest, the country’s fledgling Jewish population was
viewed through the prism of entrenched anti-Semitic stereotypes:5
There were only a couple of hundred [Jews], but their small number bore no relation to
the threatening aura that attached to them—the product of a long history of anti-
Semitism in England going back to the blood libels of the Middle Ages.
In his history of anti-Semitism, Léon Poliakov emphasises that anti-Jewish feeling

flourished in England despite the virtual absence of Jews: ‘leur fantôme contin-
uait à troubler les imaginations longtemps après leur départ’.6 After the wholesale
expulsion of the Jewish community from Spain, in 1492, Henry VII of England
denied exiles the right to settle in his dominions.7
Unlike England, Spain or Portugal, Venice did not expel its Jewish community.
The notional setting for The Merchant Venice had been an important hub of
trade since the early Middle Ages. Nevertheless, despite their acknowledged
commercial usefulness to the city state, Jews were subject to numerous restric-
tions and legal disabilities, including the requirement to pay special taxes. In the
early sixteenth century, Venice’s Jews were required to move to a specially-
constructed ghetto.8 All windows that looked outwards were blocked up, while
Jews were only permitted to quit the new ghetto during the day in order to earn
their living.9 The cost of leasing the ghetto and of hiring Christian guards to
patrol its perimeter, to prevent Jews from leaving during the hours of curfew, was
borne by the Jewish community itself.10
Whatever Shakespeare’s personal views may have been concerning Jews, either
individually or collectively, it is evident that, ‘[l]ike all English people of his age,
Shakespeare was brought up in an anti-Semitic culture’.11 To varying degrees and
in various forms anti-Semitism was an integral feature of the intellectual and
moral landscape of medieval and renaissance Europe, including that of Eng-
land.12 As Sir John Hale notes, in his history of renaissance Europe, Jews were
4
Paul Johnson, A History of the Jews (London, Phoenix, 1995) 276.
5
Michael Wood, In Search of Shakespeare (London, BBC Books, 2005) 221.
6
Léon Poliakov, Histoire de l’antisémitisme (Paris, Calmann-Lévy, 1981) vol 1, 353.
7
Ibid.
8
Roth, n 1 above, at 273.
9
Johnson, , n 4 above, at 235.
10
Ibid.
11
Wood, n 5 above, at 221.
12
See generally, Friedrich Heer, The Medieval World (J Sondheimer (trans), London, Weidenfeld
and Nicolson, 1993) ch 13; John Hale, The Civilization of Europe in the Renaissance (New York,
Atheneum and Maxwell Macmillan International, 1994) 167–9.
Shylock in Transylvania 255
routinely ‘rounded on as scapegoats when wars went wrong or when food

shortages pushed prices sky-high’.13 At such times, ‘preachers called for vengeance
upon the crucifiers’.14
The religious, ie Christian, component of medieval and sixteenth century
anti-Semitic discourse was pronounced. The Catholic Church’s fourth Lateran
Council adopted a decree in 1215 requiring Jews to wear a form of dress that
clearly distinguished them from Christians. The consequences of this enforced
physical differentiation were all too predictable: ‘The distinctive yellow patch,
horned cap and other emblems of Cain invited the hostility of those who saw the
Jews as the “murderers of Christ”’.15
Religious reformers of the sixteenth century, including Martin Luther and
numerous followers of Calvin, were no less robust in their opinions concerning
Jews.16 In the latter years of his life, Luther exhibited an almost pathological
hatred of the Jewish faith and its adherents.17 In 1543, Luther published a lengthy
pamphlet entitled Against the Jews and their Lies in which he called for a number
of radical steps to be taken against them:18
First, that their synagogues be burned down, and that all who are able toss in sulphur
and pitch … Second, that all their books, their prayer books, their Talmudic writings, also
the entire Bible, be taken from them, not leaving them one leaf … Third, that they be
forbidden on pain of death to praise God, to give thanks, to pray, and to teach publicly
among us and in our country.
As emphasised above, English society in the second half of the sixteenth century,
like the countries of continental Europe, was permeated by anti-Semitism. The
audiences that attended the first productions of The Merchant of Venice in the
1590s, as Shakespeare would have been well aware, were intimately familiar with
the image of the Jew as usurer, as miser and as Christ-killer.19
13
Hale, n 12 above, at 168.
14
Ibid.
15
Heer, n 12 above, at 255.
16
Hale, n 12 above, at 168–9.
17
Poliakov, n 6 above, vol 1, at 364–73.
18
Martin Luther, Against the Jews and their Lies: available at www.humanitas-international.org/
showcase/chronology/documents/luther-jews.htm
19
Of course, Christians in England, as in Europe more generally, were sharply divided in their
loyalties and beliefs in the late sixteenth and seventeenth centuries. As Norman Davies observes:
‘Religious discrimination was the norm in early modern Europe. England was no exception’: Norman
Davies, The Isles: a History (London, Papermac, 2000) 604. Catholic enmity towards Protestantism
was mirrored by Protestant detestation of Catholicism. The grisly execution of ‘heretics’ became a
well-established practice in Tudor England as in various parts of continental Europe, along with the
wilful destruction of religious artworks that were deemed ‘ungodly’. Hale, n 12 above, at 460–3.
256 István Pogány
POPULAR CONSTRUCTIONS OF THE JEW IN THE

MERCHANT OF VENICE
Whether The Merchant of Venice should be read as an anti-Semitic or as a

philo-Semitic text has aroused considerable interest and speculation. In his recent
book, In Search of Shakespeare, Michael Wood poses the following question:20
is it anti-Semitic? Some characters support the removal of strangers, but others reject it.
Perhaps such theatrical conflict was what he [Shakespeare] was aiming for. But then
again, this was drama written for a popular audience, and Shakespeare typically
harnessed the dramatic excitement of anti-alien feelings.
However, as Wood acknowledges elsewhere in the same book, Jews in Shake-

speare’s day were not merely hated or despised because they were ‘alien’. Jews were
not analogous to the Dutch, the Danes or the Portuguese in the popular
imagination. Jews represented a distinct and particularly egregious category of
‘foreigner’, one that continued to reject Christ and which had been collectively
complicit in his death. Jews were also widely detested because of their association
with the practice of usury. In a general and rather diffuse sense, English society in
the latter part of the sixteenth century was ‘anti-alien’. However, the English
society of that time was also unabashedly anti-Semitic, with Jews understood in
terms of a series of well-worn negative stereotypes that find ample expression in
The Merchant of Venice.
Various commentators have noted that Shakespeare sometimes reflected the
‘prevailing view’ of Jews in his plays, ‘using the word “Jew” as an oath in jokes that
suggest the deprecating attitude to them that was part of normal Christian
speech’.21 It is this ‘prevailing view’ of Jews in late sixteenth century England and
the notion of ‘normal Christian speech’ that are of particular interest here, a
‘normality’ that, at least in the experience of the author, survived pretty much
intact in 1960s England.22 By contrast, this chapter is not directly concerned with
the question of Shakespeare’s personal beliefs concerning Jews or anti-Semitism
as reflected in The Merchant of Venice. Such matters, however tantalising, are best
left to specialist literary scholars.
20
Wood, n 5 above, at 221–2.
21
Ibid 221.
22
In the mid 1960s, as I well recall, middle and upper middle class grammar school boys of my
acquaintance, in a mostly affluent part of Cheshire, routinely used the term ‘Jew’ to denote meanness
a mere 20 years after the Holocaust, a subject never broached at school. A ‘Jew’s arse’, another
expression then in use, referred to the tip of a cigarette that had become unpleasantly moist due to an
excess of saliva. The popular image of the Jew as mean, avaricious and cowardly, depicted in The
Merchant of Venice in late sixteenth century England, had survived intact over the course of four
centuries.
Shakespeare’s intent in The Merchant of Venice may have been subversive: to

challenge and subvert the anti-Semitic stereotypes of his day. As Jonathan Bate
points out, the Christians in the play are ‘no better’ than the Jews while Shylock,
the Jewish money-lender, is a complex figure, ‘one of the most memorable
characters in all literature’.23 Peter Ackroyd’s assessment of Shylock is eloquent
and astute:24
he [Shylock] could never become a caricature; he is too filled with life and spirit, too
linguistically resourceful, to be conventionalised. He is altogether too powerful and
perplexing a figure. It is almost as if Shakespeare fully intended to create a character
drawing upon conventional prejudices about an alien race, but found that he was
unable to sympathise with such a figure. He simply could not write a stereotype … That
is why he [Shylock] is perhaps, like so many of Shakespeare’s principal figures, beyond
interpretation. He is beyond good and evil. He is simply a magnificent and extravagant
stage representation.
Whatever Shakespeare’s aims in the play may have been, or his personal views (if
any) regarding Jews and their faith, it is clear that many of the characters in The
Merchant of Venice express conventional, anti-Semitic sentiments of the type that
would have been commonplace in the England of the late sixteenth century.
Whether we consider the observation of the merchant, Antonio, in Act 1 scene 3:
‘The Hebrew will turn Christian, he grows kind’, or his comment in Act 4 scene 1:
‘You may as well do anything most hard / As seek to soften that—than which
what’s harder? / His Jewish heart’, the play expresses the popular view of Jews as
callous and vindictive. Gratiano’s warm and appreciative comments about Jes-
sica, Shylock’s daughter, in Act 2 scene 6: ‘Now by my hood a gentle and no Jew!’
evokes the widespread identification of Jews with ignoble feelings and behaviour.
In a lighter vein, for this was an era in which anti-Semitism fuelled humour as
well as drama, Shylock’s servant, Launcelot Gobbo, rounds on his father, in Act 2
scene 2, for bringing Shylock a present: ‘My master’s a very Jew. Give him a
present? Give him a halter! I am famished in his service; you may tell every finger
I have with my ribs’. The Jew as miser, unwilling to deal fairly, let alone
generously, with those around him is yet another familiar anti-Semitic libel that
finds expression in the play.
While Shakespeare may have been encouraging his audience to revise their
anti-Semitic prejudices, The Merchant of Venice presents us with copious evidence
as to what those prejudices were. The play represents a window onto English
society in the late sixteenth century, a society in which antipathy towards Jews
and their faith was casual, unthinking and almost universal.
In itself, there is nothing particularly surprising in the fact that Shakespeare’s
England should have been steeped in anti-Jewish stereotypes. Rather, it is the
23
Jonathan Bate, The Genius of Shakespeare (London, Picador, 1998) 127.
24
Peter Ackroyd, Shakespeare: the Biography (London, Vintage Books, 2006) 272.
258 István Pogány
survival, growth and mutation of anti-Semitic prejudices, over the course of

succeeding centuries, which should give us pause for thought. The history of
Europe’s Jews should on no account be understood as an uninflected narrative of
marginalisation, discrimination, ghetto-isation and expulsion, culminating in the
genocide unleashed during the Second World War. However, neither should we
lose sight of the fact that the legal emancipation of most of Europe’s Jews, in the
nineteenth century, was followed by a resurgence of anti-Semitism across much
of the continent.25 Unlike the mostly religious Jew-hatred of the late Middle Ages
and the renaissance, anti-Semitism in the late nineteenth and early twentieth
centuries was, for the most part, predominantly secular in character, a product of
the new nationalist discourse that frequently labelled Jews as antithetical to the
‘nation’.26 In addition, secular anti-Semitism had its roots in the perception,
especially strong in East Central and Eastern Europe, that Jews were the agents
and principal beneficiaries of unwelcome socio-economic changes that threat-
ened traditional, agrarian cultures.27 After the passage of emancipation laws that
granted Jews full legal equality, including access to the professions and to posts in
the public administration, anti-Semitism also fed on the fears of entrenched
economic interest-groups who feared new and unwelcome competition.28
In the increasingly chauvinistic political climate of inter-war Europe, The
Merchant of Venice was seized upon by anti-Semitic regimes and their supporters
who used the play as a crude ideological tool. The Merchant was staged no fewer
than 20 times in Germany in 1933, the year in which Hitler came to power.29 In
the next five years, German theatres mounted the play on more than 30
occasions, while further productions of The Merchant were put on during the
war. The ambivalence that lies at the heart of Shakespeare’s art, perhaps of all
great art, was eschewed in favour of crude anti-Semitic stereotypes. Rather than
serving as a vehicle for the exposure of European hypocrisy, racism and anti-
Semitism, The Merchant of Venice became an adjunct to the Nazi propaganda
arsenal, irrevocably tainting the play in the eyes of many of the continent’s
surviving Jews and of numerous anti-Nazis.
25
Gartner, n 2 above, at 217–38.
26
Eric Hobsbawm, Nations and Nationalism since 1780 (2nd edn, Cambridge, Cambridge Univer-
sity Press, 1992) 105. See also, HM Sachar, The Course of Modern Jewish History (rev edn, New York,
Vintage Books, 1900) 256.
27
Peter Pulzer, The Rise of Political Anti-Semitism in Germany and Austria (rev edn, London, Peter
Halban, 1988) 286.
28
I Pogány, ‘Poets, Revolutionaries and Shoemakers: Law and the Construction of National
Identity in Central Europe during the Long 19th Century’ (2007) 16 Social and Legal Studies 94, 105.
29
Tibor Egervari, ‘Shakespeare’s The Merchant of Venice in Auschwitz’ (A Léger (trans)), available
at www.canadianshakespeares.ca/a_auschwitz.cfm
FROM THE MERCHANT OF VENICE TO THE

DEATH CAMPS: JEWS, ANTI-SEMITISM AND THE
LAW IN TRANSYLVANIA
Law, Anti-Semitism and Jewish Emancipation in Transylvania

prior to the Second World War
Long contested by Hungary and Romania, Transylvania lies at one of Europe’s
crossroads. In accordance with modern practice, ‘Transylvania’ is to be under-
stood as the totality of territories Romania gained from Hungary in the peace
settlement following the First World War. These territories included part or all of
the Hungarian counties of Máramaros, Szatmár, Bihar, Arad, Krassó and Temes,
as well as the former Principality of Transylvania. The latter, sometimes referred
to as ‘historic Transylvania’ in the literature, enjoyed a curious, semi-independent
existence for a little over 100 years, from the middle of the sixteenth century, until
its absorption into the Habsburg Empire.30
Jewish settlement in Transylvania can be traced back to the fourteenth and
fifteenth centuries when the region formed part of the medieval Kingdom of
Hungary.31 Initially, the Jewish settlers were of German, or Ashkenazi, extraction.
However, in the sixteenth and seventeenth centuries, increasing numbers of
Sephardic Jews, originating from the Iberian Peninsula, migrated to the region.
One of Transylvania‘s most dynamic and effective rulers, Gábor Bethlen, issued a
decree in June 1623 permitting Sephardic merchants from Ottoman Turkey to
settle in the town of Gyulafehérvár. Bethlen‘s explicit purpose, apparent from the
preamble to the decree, was to utilise the skills and capacities of the Sephardic
Jews, as well as of other foreign elements, to rebuild a land laid waste by war and
foreign intervention.32
Jews in Transylvania, as in much of Europe, were subject to additional taxes
and to an extraordinary range of legal disabilities until as late as the middle of the
nineteenth century.33 This reflected, in part, economic opportunism on the part
of cash-strapped governments and their realisation that Jews were uniquely
vulnerable to such exploitation. In effect, Jews were taxed simply for being Jews.
In Transylvania and Hungary, now subject to Habsburg rule, these taxes took the
30
See generally, Peter Sugar, ‘The Principality of Transylvania’ in Peter Sugar et al (eds), A History
of Hungary (Bloomington, Indiana University Press, 1994).
31
Moshe Carmilly-Weinberger, A zsidóság története Erdélyben (1623–1944) (Budapest, MTA
Judaisztikai Kutatócsoport, 1995) 33.
32
For the text of the decree (in Hungarian) see ibid 63–6.
33
For an overview, see eg Johnson, n 4 above, Part Five. Not infrequently, the authorities of states
that had enacted Jewish emancipation laws chose to disregard them, allowing discrimination to
continue in economic affairs and in the public sector. This prompted increasing numbers of Jews to
convert to Christianity as the only sure means of social and professional advancement: ibid 312–13.
260 István Pogány
form of a toleration tax from the middle of the eighteenth century.34 Special taxes
had been levied on Transylvania’s Jews since the Middle Ages.35
In addition to bearing a heavier tax burden than their Christian peers,
Transylvania’s Jews had to contend with far-reaching restrictions on their free-
dom of residence. Until the final decade of the eighteenth century, Habsburg
authorities only permitted Transylvania’s Jews to settle in 170 villages and in 20 of
the smaller towns, aside from a 150-strong community in Gyulafehérvár.36 The
right of Jews to settle virtually anywhere (the royal mining towns remained
off-limits) was not granted until a royal decree issued in 1790.37 However, as
recently as a decade earlier, Habsburg monarchs had actively supported plans to
confine all of Transylvania’s Jews to Gyulafehérvár and to expel any Jews who had
not been resident in the former Principality for at least 30 years.38 In April 1780,
Transylvania’s governor had warned Vienna that the number of Jews was increas-
ing at an alarming rate and stood at 221 families.39 As a result of heavy taxes and
other measures, most of the region’s Jews had been reduced to poverty, owning
no more than a single horse or cow.
Anti-Semitism in Transylvania, as in Austria-Hungary and Romania more
generally, retained a strong religious component, albeit infused with secular
elements.40 In particular, the myth of Jewish ritual murder, which had its origins
in the religious Jew-hatred of the medieval era, continued to be widely accepted
across much of Central and Eastern Europe as late as the final decades of the
nineteenth century. More surprisingly, perhaps, such sentiments were not con-
fined to ignorant, semi-literate peasants living in remote hamlets or villages but
extended to lawyers and highly-educated public officials.41 Time and again, Jews
in both Transylvania and Hungary were put on trial, accused of the ritual
sacrifice of Christian children.42
For example, in February 1791, the body of a 13-year-old Christian boy was
found in the Transylvanian village of Szilágypere.43 Rumours began to circulate
that the boy had been killed by local Jews as part of a religious rite. Following a
criminal trial held in the town of Zilah (Zalău in Romanian), four Jews were
sentenced to death; they were only acquitted following a lengthy appeal.44
34
Carmilly-Weinberger, n 31 above, at 137–41.
35
Ibid 134–41.
36
Ibid 143.
37
Barna Mezey et al, Magyar Alkotmány Történet (4th rev edn, Budapest, Osiris Kiadó, 2002) 191.
38
Carmilly-Weinberger, n 31 above, at 114–18.
39
Ibid 114.
40
On anti-Semitism and the Austrian Catholic Church, in the latter decades of the nineteenth
century, see Pulzer, n 27 above, at 156–63.
41
On the medieval roots of the blood-libel against Jews, see Johnson, n 4 above, at 208–11.
42
From 1867 until the First World War, Hungary exercised self-government within the framework
of the Austro-Hungarian Empire and was entrusted with administrative control over Transylvania.
43
Carmilly-Weinberger, n 31 above, at 122.
44
Ibid 123.
In 1882, in the eastern Hungarian village of Tiszaeszlár, the disappearance of a

14-year-old Catholic girl provoked accusations that she had been ritually mur-
dered by Jews. Fifteen Jews were charged with her murder and put on trial. The
sole evidence put forward by the prosecution was the testimony of a five-year-old
boy, the son of one of the accused, who was isolated from his family by the
authorities, intimidated and physically abused.45 The eventual acquittal of the
accused, who had been tortured in order to elicit confessions, provoked several
days of rioting by anti-Semitic crowds in Budapest.46
In August 1901, in certain villages in Transylvania, rumours circulated once
more that Jews had been responsible for the ritual murder of a local Christian
girl. Endre Ady, one of Hungary’s greatest poets, responded by denouncing the
‘feudal’ climate that allowed such superstitious nonsense to flourish. Ady, who
was then working as a journalist in the city of Nagyvárad (‘Oradea’ in Roma-
nian), heaped scorn on the country’s practice of blaming Jews for society’s ills: ‘If
there’s trouble, here are the Jews. Hunger, poverty, all our sins, let’s make
ourselves feel better by blaming it all on the Jews’.47
If The Merchant of Venice had been written at a time when anti-Jewish feeling
was almost universal in Europe, by the latter years of the nineteenth century
anti-Semitism provoked fierce intellectual and political debate, even in such
comparative European backwaters as Transylvania and Hungary. The principal
defence counsel at the Tiszaeszlár trial, Károly Eötvös, was one of Hungary’s most
prominent liberal politicians and a member of its House of Representatives. As
noted above, the rumours of ritual murder in Transylvania, less than 20 years
later, provoked the fiery intervention of the radical poet and journalist, Endre
Ady.
At the close of the ‘long’ nineteenth century, anti-Semitism remained a
powerful social and political tool. Transformed in the inter-war era into a central
doctrine of Germany’s Nazis and of fascist movements across continental Europe,
it was responsible for unprecedented crimes against Europe’s Jews in the Second
World War. Increasingly, anti-Semitism came to be identified with conservative
and reactionary voices as well as fascist and Nazi ideologies that were informed
by pseudo-scientific racial theories. Peter Pulzer rightly dismisses such theories as
‘anti-science … drawing with bewildering eclecticism on biology, anthropology,
theology and psychology to construct a theory of “race”’.48 By contrast, those
professing liberal, socialist, revolutionary or communist beliefs, ranging from
Eötvos to Ady, no longer countenanced anti-Semitism, at least publicly.
45
Raphael Patai, The Jews of Hungary (Detroit, Wayne State University Press, 1996) 349–50.
46
Ibid 350, 353.
47
The article, which first appeared in the Nagyváradi Napló, is reproduced in Endre Ady, A Fekete
Lobogó (Budapest, Szépirodalmi Könyvkiadó, 1952) 131, 132.
48
Pulzer, n 27 above, at 286.
262 István Pogány
Law, Anti-Semitism and the Holocaust in Transylvania, 1918–45

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

ill-fated Hungarian government in 1956, anti-Semitism, allied to a potent and
characteristically Central European strain of anti-democratic nationalism, was
the common denominator able to unite all classes and interest groups in Central
and Eastern Europe:50
Pour tous les individus, groupes et classes, des grandes propriétaires terriens aux petits
bourgeois, des officiers aux professeurs d’histoire . . . un système antidémocratique et
antisémite apparaissait comme une explication lumineuse à tous les problèmes qui se
posaient, et aussi comme leur solution naturelle.
[For all individuals, groups and classes, from the owners of great estates to the petits
bourgeois, from officers to history teachers…an anti-democratic and anti-Semitic
belief system represented an illuminating explanation to all the problems that presented
themselves, and also as their natural solution. (trans)]
If Jews had been convenient ‘scapegoats’ in renaissance Europe ‘when wars went
wrong or when food shortages pushed prices sky-high’, as Sir John Hale asserts,
49
Ibid. On the fragility of liberal democratic ideology in Europe during the inter-war era and in
the Second World War, see Mark Mazower, Dark Continent: Europe’s Twentieth Century (London,
Penguin Books, 1999).
50
István Bibó, Misère des petits États de l’Europe de l’Est (G Kassai (trans), Paris, Albin Michel,
1993) 297.
much the same remained true almost four centuries later.51 However, in place of
the preachers who had ‘called for vengeance upon the crucifiers’ in the sixteenth
century, anti-Semitism now assumed a predominantly secular guise, albeit
infused with religious elements. In accordance with these secular anti-Semitic
narratives, Jews were variously perceived as a threat to the economic, social,
cultural or moral wellbeing of society, or as a biological danger to the ‘racial
health’ of the nation.
Christian clerics, as the self-appointed custodians of society’s moral and
spiritual values, were frequently in the vanguard of ‘modern’ anti-Semitic move-
ments and campaigns, whether in Vichy France, Slovakia, Croatia or, to a more
limited extent, Hungary. For example, in April 1939, Hungary’s Upper House,
which included several leading members of Hungary’s Christian denominations,
debated the proposed Second Jewish Law whose subsequent adoption led, inter
alia, to the ousting of 60,000 Jewish salaried workers, professionals and unskilled
personnel from their jobs and the destitution of their families. Speaking in the
Upper House, the head of Hungary’s Catholic Church, Cardinal Jusztinian
Serédi, stated that the measures contemplated by the Bill were no more than
‘legitimate national self-defence’.52 The Cardinal went on to accuse a section of
Hungary’s Jews of corrupting Hungarian society and mores:53
in literature, in poetry, in the theatre, in cinema, in music and in painting [they] cast
doubt on, or discredited, practically everything which is holy to Christians, including
God, the saints, religious faith, the Church, marriage, the family.
Cardinal Serédi also charged a segment of Hungary’s Jews with attempting to

destroy ‘Christian values’ in the economic life of the country.54 The Cardinal
declined to elaborate on this elusive spiritual phenomenon which, in any event,
was strikingly at odds with the stark economic realities of Hungarian society
stripped of its Jewish influences. Jews, who undoubtedly played an important role
in the industrialisation and economic modernisation of Hungary, had not been
responsible for the semi-feudal economic structures that obtained in rural areas
until as late as the end of the nineteenth century and which were characterised
not by ‘Christian values’ of any recognisable kind, but by the ruthless exploitation
and oppression of the impoverished rural masses by a tiny, privileged elite.55
Bishop László Ravasz of the Reformed Church also expressed his support for
the proposed Second Jewish Law during the debate in Hungary’s Upper House.
Bishop Ravasz lamented the fact that, ‘it is not the Jews who have assimilated to
51
Hale, n 12 above, at 168.
52
Quoted in István Pogány, Righting Wrongs in Eastern Europe (Manchester, Manchester Univer-
sity Press, 1997) 86.
53
Ibid.
54
Ibid.
55
László Kontler, A History of Hungary (Basingstoke, Palgrave Macmillan, 2002) 304–6.
264 István Pogány
the Hungarian spirit, but rather the Hungarian spirit which has assimilated to the
Jews’.56 The Bishop characterised the Jewish spirit as ‘decadent’ and ‘degenerate’.57
Following the Second Vienna Award, brokered by Hitler in August 1940,
Romania was forced to cede northern and eastern Transylvania to Hungary. The
territories transferred to Hungary, pursuant to the Award, amounted to well over
43,000 square kilometres with a total population of two and a half million
people.58 According to a census, conducted in 1941, there were 153,333 Jews
living in areas of Transylvania now governed by Hungary.59 In addition, 40,000
Jews were resident in southern Transylvania, which remained subject to Roma-
nian jurisdiction.60
As a result of the Second Vienna Award, the great majority of Transylvania‘s
Jews, concentrated in northern and eastern Transylvania, were now subject to the
anti-Jewish laws that were already in force in Hungary. These included the
so-called Second Jewish Law, referred to above, which entered into force in May
1939.61 The Second Jewish Law, or ‘Law on the Restriction of the Expansion of
the Jews in Public Life and Economic Affairs’, imposed far-reaching restrictions
on the participation of Jews in the professional, economic, political, educational
and cultural life of the country. For example, Jews were permitted to occupy no
more than 6 per cent of places at universities and colleges, while they were
excluded altogether from certain areas of professional activity concerned with the
cultural or intellectual life of the country.62 As a direct result of the Second Jewish
Law, no Jew could be the editor or publisher of a newspaper or journal. Similarly,
no Jew could be the director of a theatre or of any commercial company engaged
in making, distributing or selling films.63 Further and severe restrictions were
imposed on Jews employed in the professions or as white collar workers, while
56
Quoted in Pogány, n 52 above, at 86.
57
Ibid.
58
Joseph Rothschild, East Central Europe between the Two World Wars (Seattle, University of
Washington Press, 1977) 183.
59
Gábor Barta et al, Erdély rövid története (2nd edn, Budapest, Akadémiai Kiadó, 1993) 600.
According to another estimate, there were 165,000 Jews living in Hungaran-administeed Transylvania.
Carmilly-Weinberger, n 31 above, at 289.
60
Anti-Semitic persecution in areas of Transylvania that remained under Romanian control, as in
other parts of Romania, was generally less thorough and relentless than in territories governed by
Hungary. As a result, a significantly larger proportion of Jews survived the war in Romania than in
Hungary or in areas of Transylvania governed by Hungary during the Second World War. See
generally, on the treatment of Jews in wartime Romania, Radu Ioanid, The Holocaust in Romania
(Chicago, Ivan R Dee, 2000). However, it should not be forgotten that ‘The Holocaust in Romania
culminated in a series of devastatingly cruel deportations carried out under murderous conditions’.
Ibid 35. Deportations of Romanian Jews were focused on certain parts of Romania, including
southern Transylvania. Ibid.
61
For the text of the statute see Ezer Év Törvényei, available at www.1000ev.hu/
index.php?a=3&param=8098
62
For the limits placed on Jewish access to higher education by the Second Jewish Law see 1939:
IV t-c, s 7.
63
Ibid ss 10, 11.
Jews were barred outright from seeking employment in much of the public
sector, including the civil service, local government and the judiciary.64
The Second Jewish Law not only reflected the belief that Jews occupied an
unduly privileged place in the Hungarian economy but, more importantly, the
conviction that their values and ways of thinking were alien and harmful to
society at large, hence the provisions excluding Jews from leading positions in the
theatre, newspapers, etc. As such, the Second Jewish Law, along with statements
by its ecclesiastic cheerleaders in the Upper House, reflect views that are dia-
metrically opposed to the humanistic sentiments expressed by Shylock in Act 3
scene I:
I am a Jew. Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses,
affections, passions? Fed with the same food, hurt with the same weapons, subject to the
same diseases, healed by the same means, warmed and cooled by the same winter and
summer as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not
laugh? If you poison us, do we not die?
If Hungary’s Second Jewish Law reflected a belief in the intrinsic differences

between Jews and Gentiles, Shakespeare’s Shylock asserts the overriding commu-
nalities of the human condition.
In addition to the exclusion of Jews from certain sectors of employment, in
accordance with the Second Jewish Law, able-bodied Jewish males in northern
and eastern Transylvania, as in other parts of Hungary, were liable for service in
auxiliary labour batallions attached to Hungary’s armed forces.65 The legal basis
for the creation of these batallions was provided by an Act on National Defence,
adopted in 1939.66 Section 230 of the Act stipulated that men aged over 21,
deemed unsuitable for military service, should undertake work in the public
interest. The maximum age for Jews serving in such labour battalions was
gradually increased from 25 to 60.67 In all, some 130,000 Jewish males served in
these battalions of whom up to 40,000 perished.68
Many of the Jews conscripted into the Hungarian labour batallions, including
Jews from Transylvania, suffered or died because of the sadism or indifference of
their guards, although other Jewish conscripts were treated comparatively
humanely. Fourteen Jewish men in Labour Battalion No 101/5 died as a result of
inadequate food, lack of shelter and constant beatings.69 Men serving in some of
these battalions were worked from dawn till dusk and fed on nothing but
unsweetened black tea and contaminated flour. German officers reportedly
64
Ibid ss 4, 5, 9, 17.
65
On Jews serving in Hungary’s auxiliary labour battalions, see eg Raul Hilberg, The Destruction
of the European Jews (rev edn, New York, Holmes and Meier, 1985) vol II, 808–11.
66
For the text of this statute, see www.1000ev.hu/index.php?a=3&param=8096
67
Hilberg, n 65 above, vol II, at 808.
68
Ibid.
69
László Karsai, Holokauszt (Budapest, Pannonica Kiadó, 2001) 222.
266 István Pogány
warned the Hungarians in charge of some of the battalions that they had to
choose between beating the Jews and working with them.70
Conditions in other auxiliary labour battalions were reasonable by compari-
son. An elderly Jewish survivor of one such battalion, who still lives in the
northern Transylvanian village where he was born, recalls that the 300 Jews he
served with were not physically mistreated by their guards, although several of
the guards stole what they could from the Jews: ‘some [of the guards] were
decent, others were robbers, pure robbers!’71 For the most part, the men in his
labour battalion were fed adequately: ‘the food was good, it was OK. We didn’t go
without or experience hunger, no, no. We were fed three times a day: in the
morning, at mid-day and in the evening. And there was enough bread’.72 The
men were not issued with uniforms, although they were supplied with civilian
clothes from time to time. For the most part, the battalion was employed digging
anti-tank ditches to impede the advance of the Soviet forces.
By the spring of 1944, service in an auxiliary labour battalion offered protec-
tion from deportation to Auschwitz-Birkenau or to other death camps. Jews in
Transylvania were amongst the first Jews to be rounded up by the Hungarian
authorities and to be deported to these camps, in accordance with a plan drawn
up by Adolf Eichmann. By 7 June 1944, almost 290,000 Jews had been deported
from Transylvania and from other territories annexed by Hungary during the
War.73 According to conservative estimates, of the 110,000 to 130,000 Jews
deported from Hungarian-controlled Transylvania, between 90,000 and 100,000
died in the Nazi camps.74
By comparison with the genocide of Transylvania’s Jews, in which the Hungar-
ian administration and gendarmes collaborated with Eichmann and his associ-
ates, the casual, mocking anti-Semitism displayed by some of the characters in
The Merchant of Venice appears mild, almost innocuous. In The Merchant,
Venetian society aspires to convert Jews, to turn them into Christians. By contrast,
in those parts of Europe controlled by the Nazis and their allies, including
northern and eastern Transylvania, even devout Christians ‘tainted’ by Jewish
blood were earmarked for extermination, along with Jews who had stayed loyal to
their faith.75
70
Ibid.
71
Interview conducted in Hungarian with former member of a Hungarian auxiliary labour
battalion (Maramureş, Romania, March 2007). In accordance with his wishes, neither the name of the
interviewee nor the village in which he lives are given. The interviewee provided the author with
documentary evidence confirming his service in an auxiliary labour battalion during the war.
72
Ibid.
73
LS Davidowicz, The War against the Jews 1933–45 (10th edn, London, Penguin Books, 1990)
455–6.
74
Barta et al, n 59 above, at 600.
75
The rigid, racially-grounded anti-Semitism of the Nazis and their allies was to lead to friction
with the Christian Churches. In Hungary, for example, while the Churches warmly supported the
First and Second Jewish Laws, they expressed their opposition to the Third Jewish Law, enacted in
1940, which proscribed marriages between Christians and Jews who had converted to Christianity. As
THE MERCHANT OF VENICE: SHYLOCK IN

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

including comedies, histories and tragedies, continued to be performed on a
regular basis.
Allocated to Romania in the peace settlement following the First World War,
Transylvania contains a large ethnic Hungarian minority that is served by
Hungarian-language theatres in towns and cities including Cluj-Napoca, Oradea,
Tîrgu-Mureş, Satu-Mare and Sfîntu-Gheorghe.79 Productions of many of Shake-
speare’s plays, as well as works by other major foreign dramatists, including Shaw,
Ibsen, Gogol, Chekhov, Racine and Molière, were mounted by these theatres
during almost half a century of communist rule.80 However, The Merchant of
Venice was not performed at all during this period. Unlike King Lear, Hamlet,
Othello, Macbeth, A Winter’s Tale, The Merry Wives of Windsor, A Midsummer
Night’s Dream and other plays by Shakespeare, The Merchant of Venice does not
feature amongst the works that were mounted by the Hungarian theatres in
Transylvania.81
The Merchant was excised from the theatrical repertoire because, as suggested
above, it raised uncomfortable memories in a society that was complicit in the
Holocaust and that was governed after the war by communist regimes intent on
reshaping historical memory in accordance with their own ideological precepts.
As the historian, Tony Judt, points out: ‘It is not that the horrors and crimes of
the war in the east were played down [by communist rulers]—on the contrary,
they were repeatedly rehearsed in official rhetoric and enshrined in memorials
and textbooks everywhere. It is just that Jews were not part of the story’.82
Jews, having been physically eliminated from most of the CEE region as a result
of the Holocaust and of post-war emigration by most of the survivors, were now
also subject to cultural and intellectual excision as well. During the communist
era, Jewish themes were generally discouraged, whether in the theatre or in the
academy, rendering The Merchant of Venice anathema.83 For the most part, the
region’s remaining Jews were encouraged to assimilate, a process that was
79
On the Hungarian minority in Transylvanian Romania, see eg, George Schöpflin, Nations,
Identity, Power (London, Hurst and Company, 2002) 412–14.
80
A record of the plays mounted by the Hungarian-language theatres in Transylvania, from the
late autumn of 1944 until the early 1990s, is available in Lajos Kántor and József Köto″, Magyar Szinház
Erdélyben 1919–1992 (Bucharest, Editura INTEGRAL, 1998) 118–201. These Hungarian-language
theatres also functioned during the period 1940–44, when Hungary reoccupied northern and eastern
Transylvania.
81
For example, in Cluj, a lively university city and the undisputed cultural and intellectual capital
of Transylvania, there were performances of The Taming of the Shrew at the city’s State Hungarian
Theatre on 22 April 1946 and on 3 March 1965; of Richard III on 2 April 1949; of Romeo and Juliet on
10 March 1951 and 27 May 1967; of Othello on 30 March 1958; of A Winter’s Tale on 12 December
1969; of King John on 4 March 1977; of Much Ado About Nothing on 28 November 1979; and of
Hamlet on 23 February 1987. Kántor and Köto″, n 80 above, at 118–41.
82
Judt, n 77 above, at 822.
83
See generally, on the Jewish experience in communist states in the post-war era, Bernard
Wasserstein, Vanishing Diaspora (London, Penguin Books, 1997) ch 9.
welcomed by many Jews themselves because it seemed to offer the best or only
prospect of a life free from anti-Semitism.
The tenacity of anti-Semitic sentiment in the CEE region, even after the
Holocaust, was also a factor in the reluctance of communist authorities to
sanction performances of The Merchant of Venice, as suggested above. The play
was not performed in the Hungarian-language theatres of Transylvania and
rarely mounted elsewhere in the CEE area because the anti-Semitic stereotypes it
contains had not lost their currency. It could not be assumed that audiences
would find the well-worn anti-Semitic clichés in The Merchant uncomfortable or
embarrassing. There was a very real danger that, far from sympathising with
Shylock and his plight, many in the audience might see the play as a vindication
of their anti-Semitic prejudices.
The factors that resulted in the neglect of The Merchant of Venice by theatres in
Central and Eastern Europe also shaped literary scholarship in the CEE region,
particularly during the communist years. In the mid-1960s, Methuen and Co
published an English-language text, Shakespeare our Contemporary, by a leading
Polish scholar, Jan Kott. In the Preface, Peter Brook, the English theatre director,
describes Kott as ‘quick-witted and combative’. However, Kott’s combativeness
apparently functioned within orthodox limits. His book simply ignores The
Merchant of Venice with its deeply uncomfortable themes of racism and Jew-
hatred. While Kott discusses many of Shakespeare’s plays at length there is only a
fleeting reference to The Merchant.84 Even Kott’s tiny comment on The Merchant
is confined to the ‘safe’ topic of eroticism, scarcely a central strand in the play.
This is surprising and not a little disappointing in view of the obvious relevance
of The Merchant to the tragic course of Polish-Jewish history. Up to three million
Polish Jews were killed in the Holocaust, while anti-Semitism had been pro-
nounced in pre-war Poland.85 Only a couple of years after Kott’s book was
published, a fresh outburst of state-sanctioned anti-Semitism led to the enforced
emigration of over 20,000 Polish Jews, many of whom had been hounded from
their jobs.86
CONCLUSIONS
The themes raised by The Merchant of Venice remain extraordinarily relevant in

our own times. It has become clear that public knowledge of the Holocaust has
failed to dispel entrenched anti-Semitic beliefs and stereotypes, even in the
84
Jan Kott, Shakespeare, Our Contemporary (B Taborski (trans), London, Methuen and Co Ltd,
1967) 196.
85
Davidowicz, n 73 above, at 472–4.
86
Jonathan Kaufman, A Hole in the Heart of the World (Harmondsworth, Penguin Books, 1998)
189–90.
270 István Pogány
United Kingdom. According to recent studies, anti-Semitism is actually on the

increase.87 Other examples of racism or religious chauvinism, such as anti-Roma
prejudice in Central and Eastern Europe or anti-Shia sentiment in parts of the
Islamic world, also remain deeply entrenched.88 The Merchant’s generous,
humanistic vision, one strand in a complex and ambiguous play, remains an
important moral counterweight to racist and chauvinistic ways of thinking. For
lawyers, the ongoing challenge must be to ensure that enlightenment ideals of
non-discrimination, pluralism and inclusion continue to inform our laws and the
conduct of both public and private institutions. Shylock’s famous lament: ‘Hath
not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections,
passions?’ could just as meaningfully have been uttered by a member of the Roma
minority in Slovakia, by a Dalit in India, a Shia in Saudi Arabia, by a Zoroastrian
in Iran or by a Catholic in parts of Northern Ireland.
87
Report of the All-Party Parliamentary Inquiry into Anti-Semitism (September 2006), available at
http://thepcaa.org/Report.pdf
88
On the plight of the Roma of the CEE states, see I Pogány, The Roma Café: Human Rights and
the Plight of the Romani People (London, Pluto, 2004). On anti-Shia sentiment in parts of the Islamic
world, including Pakistan and Saudi Arabia, see Minority Rights Group International, State of the
World’s Minorities 2007 (London, Minority Rights Group International, 2007) 85, 114.
17
Shylock as a Politician
ANTON SCHÜTZ
‘ALETHURGY’ – ARTS OF HANDLING THE TRUTH
HEN, IN SOPHOCLES, Oidipous exposes the old shepherd, the

person who had saved his life as a newborn, to a relentless
interrogation, the chorus, Teiresias the seer, the messenger from
Corinth, Jokasta herself, all warn Oidipous of the dire consequences his inquiry is
bound to give rise to. In vain, since Oidipous wants to know, he wants and craves
the truth, and nothing, or more adamantly still, no one, will stop him. Not
accidentally is he called ‘Oidipous tyrannos’, a syntagma of proper name and
improper title, which must or might have been connected to a second interpre-
tation, highly fraught with meaning, and according to which Sophocles’ title,
instead of remaining untranslated, should read, in English, something like
‘Swollen-foot, the ruler by chance’. The Shepherd, on the contrary, is besieged by
truth, exposed to truth’s inhuman threat, he must defend himself against truth, is
aware of ‘more than enough’ truth, and in consequence would, in Herman
Melville’s perfectly fitting words, ‘prefer not to’ answer his lord’s questions. When
Michel Foucault analysed Sophocles’s Oidipous tyrannos in the first lecture of his
yet unpublished 1979/80 lectures at the Collège de France, he looked specifically,
both at subjection and assujettissement in the Shepherd’s preference for not-
knowing, and at subjectivity, in its classic-Athenian design, in Oidipous’s own
exercise of unconditionality in matters of knowing and therefore extorting the
truth, an exercise of unconditionality that is, as Foucault was to explain later,
paradigmatic for the classic-Athenian idealisation of activeness in matters of
social relationships.
Foucault’s analysis takes truth to be a question of society, company, communi-
cation, of the government of oneself and others; people are working on truth, or
with truth, or in the medium of truth. Thereby, truth becomes a medium of
distribution of activeness and passivity, a matter of constant social reference, and
indeed the central prop of the constant actual construction of the self, not part of
272 Anton Schütz
the subject’s internal equipment but effective stake of the care for others and
oneself. This truth as a matter of active handling was introduced by Foucault
under the term of alethourgia, an expression of exquisite rarity, not, however, one
that is absent from the post-classical vocabulary (it is used, though equally
sporadically, both in Alexandrine philology and, much later still, in the Greek
fathers—Foucault’s source). The relentless knowledge-hunter Oidipous embod-
ies what Foucault calls the alethurgy of the master; the Shepherd embodies, as a
refugee of knowledge, the alethurgy of the slave. Oidipous’s unflinchingly pursued
endeavour of inviting, exploring, obtaining, revealing, confronting, embracing
truth, is in contrast to the Shepherd’s entry into truth which stands under the
sign of reluctance, pressure, duress and torture. With Oidipous, we find a will to
actualise or ‘spend’ truth, an act of making it happen, directly, actively, offensively
and no matter the price. Even when Oidipous blinds and exiles himself as a
consequence of the truth he has found out, the possibility of repenting for having
chosen to discover the fateful truth and thus to enable its destructive prise-de-
pouvoir to unfold, will not even occur to him. With the Shepherd, we find, on the
contrary, a passive, defensive, ‘preventive’ act of truth; truth as a matter of
permanent suspension and latency, conservation and reserve, as a potentiality
that prefers to remain unactualised and needs to be forced, extorted, in order to
manifest itself. Oidipous’s truth requires discovery, self-exposure, courage. The
Shepherd’s is related to awe and distance, fate, oppression and self-protection.
An attempt to transport this classic-Athenian pattern of reading to Hellenistic
and Roman times,1 let alone to our own, hits an immense rock, or rather a
mostly-covered iceberg. Shakespeare features, in spite of the most extensive
detective inquiries, few Sophoclean fingerprints, a fact that should put a question
mark on the very common notion of a (single) continuous history of European
theatre, where all we find is a sequence of discontinuous campaigns, or life-cycles,
each closed upon itself and of limited extension and duration. There is, of course,
one factor that brings Sophocles, Shakespeare and some further authors, increas-
ingly closer to each other, namely us. The common feature is their common lack
of precisely that sense that enables us to invest so much interest in them: the
absence of ‘historical consciousness’ that would have enabled them to ask a
question of the sort that we ask (about them!). They encountered no equivalent
of the pressure we feel upon us to prove the well-founded, rather than purely
dogmatic, character of our own constructions. And yet, we cannot avoid, we even
have, it seems, no ambition to avoid, our own dogmatism, which commands us
to cast the one identical gaze that we are capable of, into every conceivable
historical subdivision that has managed to deposit a documentary trace in our
archives. No less than any other generation, we are the prisoners or perhaps the
1
Foucault’s subsequent years of Lectures at the Collège de France would explore this evolution,
alongside vols II (The Use of Pleasure), III (The Care of the Self) and IV (unfinished, not published) of
his History of Sexuality.
Shylock as a Politician 273
citizens of our own categories, only this is a fact that had been flatly unproblem-
atic (even invisible) to previous generations, while to us it is highly problematic.
So where, if not amongst ourselves, should we look for authorisation and
confirmation of our inquiries? As Stanley Fish (and everyone else) knows, the
texts themselves will agree with whatever the interpretive community agrees with.
I shall ask with Foucault, obey Melville’s injunction to ‘follow your master’, and
apply to Shakespeare’s Shylock, an oppressed and humiliated slave like the
Theban Shepherd, but also a steadfast, intractable tyrant like King Oidipous, the
categories of the two separate and diametrically opposed approaches to truth,
master’s and slave’s alethourgia. There are, roughly speaking, two ways to under-
stand Shylock and his fate. Either he entertains, like the Shepherd, a relationship
to truth based on perennial suspension and unactualised potentiality. Should not
his name indicate such ‘shyness’?2 Or Shylock is a fully acted-out test case of the
institutional system, and deserves the same transferential supposition or credit
which Freud had placed in Oedipus alone.
SHAKESPEARE’S VENICE: THE INCONSISTENT

TOTALITY OF THE MODERN CITY
Difficult to deny is the distance in depth of focus that separates the autochthonous
Venetians, each of whom comes complete with a rich ‘personality’, and the Jew,
two-dimensional like a figure in a wood-cut, with little personal, rather than
‘Jewish’, features, the most decisive being the fact that Shylock is someone who is
not prepared to change religion unless and until he is unambiguously invited to.
From this viewpoint, the comparison of Shylock, via the Venice reference, with a
commedia dell’ arte character, Pantaloon (a popular exercise amongst Shakespeare
2
Shylock’s is the only English name in the list of characters. Tubal is not an Italian name—and
that, too, is not accidental. But in Shylock there is a ‘Sh’, a ‘y’ and a ‘ck’ (or, in the First Folio, ‘cke’), all
of which have in English full standing as instances of the common phonetic currency, while they are
obviously unknown to Italians (obviously enough to exclude any relevant doubt even in the ears of a
public bathing in English monolinguism). Apart from ‘shy’ and ‘lock’ and their meanings, the name
Shylock has, as Dietrich Schwanitz reminds us in Shylock: Von Shakespeare bis zum Nürnberger Prozeß
(Hamburg, Krämer, 1989) 20, also a potential biblical (Noachide) genealogy. Salah, Shalah, or Shelah
is, according to Genesis 10:24 and 11:12–13, the oldest son of Sem’s third son Arphaxad or
Arphakhsad (thus a Semite in the strictest sense) who, in addition, is also part of the patriarchal
chain, being Abraham’s great-great-great-great-grandfather, according to Genesis 11:14—27. In
addition, ‘Shylock’ has been accorded various later echoes, conscious or not, some of which go
undetected, such as Sherlock, first name of Conan Doyle’s detective. Another Sherlock figures as the
author of The Case of the Allegiance due to Soveraign Powers (1691), on whom see G Straka, ‘The Final
Phase of Divine Right Theorie in England’ (1962) 77 English Historical Review 642. Schigolch is a
character in early twentieth century German playwright Frank Wedekind’s comedies Erdgeist and Die
Büchse der Pandora, as well as in Alban Berg’s Opera Lulu.
274 Anton Schütz
scholars)3 makes sense: it draws our attention to the fact that one does not find
the corresponding commedia dell’ arte characters for Antonio, Bassanio, Portia,
Lorenzo and Nerissa, for example. They do not make it to tragic depth—this is a
comedy, after all—but this means that Shylock can, even less, grow tragic. He is
not meant to. He is intended as a dramatic enabling device, whose role is over
with Act 4 and who is endowed with the appropriate, limited amount of
‘Eigenleben’ or personal complexity.
Yet the key difference between the Venetians and the Athenian, it seems to me,
is located in the dissociation between power and truth. Let me quickly introduce
a third and fourth example. In Molière’s Don Juan, in Mozart’s and da Ponte’s
version, too, we find an equivalent of Oidipous, a hero/villain who wanders down
his road until its end, which will be his end as well, for he will encounter a will
equivalent and a power superior to his own. What do we find in Shakespeare’s
Venice? A precarious collective power, in fact a vacancy of power scantily
disguised by the image of a lively, hyperactive civil society brimming with
communication and commerce, attraction and aversion, decision and adventure,
intrigue and guile. Its effective population by no means corresponds to the
representative image the Republic tends to give of itself on the ceremonial level,
boasting its magnificoes (cf stage direction, Act 4 scene 1) and signors, or
members of the Venice Signoria (referred to, as metaphor for Antonio’s ships, by
Salarino (1.1.10)). It is splendidly reigned over, more than efficiently governed,
by the majestic, but all-powerless Doge, holder of a merely nominal dignity and
under whose authority a usurper of judicial power, the cross-dressed Portia, is
allowed to ask the question that can be understood as the mystical foundation of
Venetian or perhaps Western law, ‘Who is the merchant, and who is the Jew?’, and
rules accordingly.
From this pseudo-unity of a supposedly structural, yet in fact largely celebra-
tory institutional setting, Shakespeare is careful to distinguish the moving parts
of the place, as so many partes extra partes or elements without totality. Solanio,
Salarino, Graziano and Lorenzo, ‘gentlemen of Venice’, Bassanio, an ‘Italian lord’,4
count as the latter. By dint of this Y-shaped structure, of the one Venice dividing
into two, Shakespeare’s Venice is an excellent illustration of that inbuilt gradient
which, according to Alain Badiou, sets apart situation and state of the situation,
divides between all that is (or those who are) effectively present in a given
situation, caught in it as its elements, and the fragment earmarked as the official
image which the situation deigns to give of itself, as which it represents itself.5
The official self-representation of a socio-historical situation, either Venice or
London or any other place, in 1597 or almost at any other moment, is established
3
See William Shakespeare, The Merchant of Venice, The New Cambridge Shakespeare (MM
Mahood (ed), Cambridge, Cambridge University Press, 2003) Introduction, 1–65, at 12, with further
literature.
4
As named in Q3, 1637.
5
Alain Badiou, Being and Event (New York, Continuum, 2005); (‘Meditation eight’; ‘appendix’).
under the imperative of justifying the legitimate action of rightful government,

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

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

but depositories of a unique obsolescent historical glory, a glory without subjects.
There is a history of decadence built into The Merchant’s Venice, a history of
abandon and de-subjectivation the city has already gone through, giving rise to a
community sans aveu ni oeuvre, in the moment at which the curtain goes up. All
that these orphaned lost ones,6 who are thus fated to become unrelenting social
climbers, are left with, are two classes of symptoms, objects that matter: namely
such fetishised articles as caskets, rings, pounds of flesh, money, and bodies that
matter, more exactly one body that matters, namely Shylock. In one important
sense Shylock is, possibly together with Portia’s father, the loser in the newly
emerging communitarian and control society structure replacing the solid gov-
ernment of earlier times.7 The gentlemanly, which is also to say male,8 place
which is the Venice that Shakespeare drew, is presented as the site of a post-
subjectivity, a desert of erring subjects longing de profundis, from the depths of
their widower-hood, for a master to follow—before tearing him to pieces, like
Aktaeon’s dogs. Once the political master has given in and compromised, we are
left with the weak consensus of a merchant collective in constant need of an
external founding and funding agency. Shylock’s defeat will nourish this Danaïds’
cask on both counts, for the length of one more Act.
WOULD SHYLOCK HAVE CUT?
The most fascinating ingredient of The Merchant of Venice, the effective problem
underlying the play (one of the once so-called ‘problem plays’) is the fact that the
play shows a trial taking place, a punishment being meted out, a person’s social
existence reduced to bare life, without his having ever left the realm of words and
entered that of deeds. On the one hand, Shylock is two-dimensional, a figure
without personal depth, a generic Jew.9 On the other hand, Shylock’s misdeed,
6
Whatever or whoever has deserted or ‘lost’ the Lost Ones of Samuel Beckett’s great prose
fragment of the same title (1973?) via its initial French title, Le dépeupleur, Beckett’s work responds to
Alphonse de Lamartine’s ‘You miss one single being, and everything is depopulated’: ‘Un seul être
vous manque, et tout est dépeuplé’. The question of the dépeupleur’s identity must remain open in
order to give rise to the community of the deserted or the abandoned that is imagined by Beckett. In
contrast, it is by means of Shylock’s defeat that Shakespeare’s Venice’s mafioso jeunesse dorée make the
career-step of becoming what they are in Act 5.
7
Shylock, as much as the Eternal Jew—the Ewige Jude, whose myth originates from Hamburg’s
Ghetto more or less at the same time at which Shylock’s is grafted into Venice’s (cf Dietrich Schwanitz,
n 2 above, at 21)—is a dispossessed remnant of earlier evolutions, the counter-hero of the
socio-Darwinian struggle for survival via adaptation.
8
Jessica is Jewish, Portia and her servant are from Belmont; we do not find a single gentile
Venetian woman in the list of characters.
9
See John Gross, Shylock: Four Hundred Years in the Life of a Legend (London, Vintage, 1992) 37,
who however hastens to add that ‘there were other conventions that Shakespeare rejected’. For
instance, ‘[Shylock] is one of the few stage-usurers who is not described as physically repellent’.
which costs him so much, is a would-be felony, made out of mere words.
Criminal law is, of course, perfectly familiar with such crimes. On the one hand,
as in the case of hate-speech, ‘words are deeds’ (Wittgenstein) also, in the sense
that they constitute punishable conduct. On the other hand, in a wide variety of
cases, a punishable act which in itself is not speech, can also be committed by
spoken or written words. What sets Shylock’s case apart is the fact that whatever
he has committed, he has done so in front of what he believes is a judge, in
arguing a contractual claim. True, if it is upheld, then no one could stop Shylock
from acting in a way that would mutilate and kill Antonio. For, if no one had
stopped him, as fortunately Portia alias Balthazar can and does, then, clearly,
Shylock would kill Antonio, ‘having an oath in heaven’, having ‘sworn an oath’ to
do so.
It is thus a genuine happy end to see Shylock’s claim, and following this,
Shylock himself, undone. Yes or no? Not quite. Throughout 400 years of per-
formance history, only some eccentric voices had as much as considered the
possibility that the answer could as well be no, Shylock might refrain from
cutting, were he allowed to cut.10 The moment at which you see the Shylocks
wielding their knives and the Portias intercepting them, as if they were so many
restagings of the Angel stopping Abraham’s knife-wielding arm, is situated just
before Portia’s ‘tarry a little, there is something else’ (4.1.301):
PORTIA you must cut this flesh from off his breast;
The law allows it, and the court awards it.
SHYLOCK Most learned judge! A sentence; come, prepare.
PORTIA Tarry a little, there is something else.

This bond doth give thee here no jot of blood.
What happens between Shylock’s ‘come, prepare’ and Portia’s ‘Tarry a little’? The
paper is blank there. We are in the state of exception in which actors and stage
directors are allowed and required to make the law. But even here, not everything
goes. Theatre, as an art, as a genre, is inseparable from an economy—an economy
of maximising the dramatic effect. And, as an effect of this economy, Shylock is
stopped by Portia in extremis, just before planting the knife in Antonio’s breast.
Theatre’s unique endowment has here the effect of leading to a straightforward
re-enactment of the pogrom tradition. And who would, by Jove, not agree that a
stage-pogrom is very different from a pogrom?
Shylock’s birth in Shakespeare is the late outcome of a long sequence of
repetitions of a tradition, of a series of adaptations and reworkings of a solid
tradition. A whole genre of late sixteenth century literature both of the dramatic
10
Cf ‘Structural Terror: a Shakespearean Investigation’ in Lior Barshack, Peter Goodrich and
Anton Schütz (eds), Law, Text, Terror (New York, Cavendish, 2005).
278 Anton Schütz
and the epic genre include the cruel money-lending Jew.11 The Jew, in his
majority interpretation, Christian or simply current, is representative of what is
known as literal or carnal relation to the text. Interpreting a text, paying attention
to the letter, this means that what counts is not the uninhibited pure intelligence
of a text’s essence, but the welcome offered to the minimal element of the text, its
ultimate particles, whose claims should be considered. What is meant by the fact
that literal interpretation is also ’carnal’ according to the anti-Jewish polemics
since the age of the Christian Fathers, is partly the rejection of the text’s spiritual,
anagogic or progressive understanding. Yet, there is also the fact that those who
are not confessing self-submission under the text’s meaning, abuse it by reducing
principle into contingency; ‘flesh’ stands for capriciousness of the cut, spirit for
the integrity of principle.12 The literal enforcement of his contractual rights
would allow Shylock to cut into Antonio’s body. Literalism is allowed and indeed
welcome to the extent to which it is spiritually instrumentalised, as a mere
‘technique’, as the service of literalism paid to the anti-literalist campaign.
The art in which the disguised Portia excels, frustrating the evil literalist intent
by borrowing its own means, looks back on a long pre-history in miracle and
morality plays dealing with the force, the ruse, the merely effective (unprincipled,
but successful) power used by the angelic agents after the protagonist sinner’s
death, in stealing his soul away from its rightful owners, the devils.13 But the
frustrated devils remain what they are; only The Merchant’s defeated Jew-culprit
is forced to use his human right of converting to the common economic salvation
of becoming a Christian. In addition, his indictment for a merely speech-internal
misconduct, based on the mere presumption that he would have cut, is a victory
gained over a solitary half-pariah, the weakest of enemies. It provides his
adversaries with an apotheotic and humiliating triumph, not second to that of a
Roman general after having won an exceptional victory on the battlefield. Yet, it is
to be seen as essential to the play’s economic equilibrium, the more so as it
pre-emptively compensates for Act 5’s ‘wearing thin’ in matters of happiness, by
providing Act 4 with a vicarious happy ending.
That Shylock would have cut if not physically stopped from doing so carries the
weight of the dramatic argument. It was thus necessary to invest it with the
dramatic credit of a ‘here and now’, to make the scene happen between real
citizens of a real city in a real courtroom. It is exactly this ‘here and now’ that had
been lacking in the earlier, religious tradition. The spectacle of the devilish claim
to the soul finally frustrated by the secret service of Saint Michael’s angels, as it
had been staged 100 or 200 years earlier, had taken place in the no-man’s-land or
11
Cf John Russell Brown, Introduction to the Arden Shakespeare Merchant of Venice (1955/1961).
12
See Daniel Boyarin, ‘“This We Know to be the Carnal Israel”: Circumcision and the Erotic Life
of God and Israel’ (1992) 18 Critical Inquiry 474.
13
Maximilian J Rudwin, Der Teufel in den deutschen geistlichen Spielen des Mittelalters und der
Reformationszeit. Ein Beitrag zur Literatur-, Kultur- und Kirchengeschichte Deutschlands, Schriften zur
germanischen Philologie (Göttingen, Hesperia, 1915, and The Merchant of Venice, n 3 above,
Introduction, at 12.
threshold zone of the judgment of the individual soul, the judgment which
immediately follows a person’s death (as opposed to the collective, one-off last
judgment, for all men, at the end of time).14
Was Shakespeare aware that he was in a sense secularising what had formerly
been the scene of Saint Michael’s and his servant angels’ charitable fraud and
commendable cheating against the devils? In any case, he manages to avoid
excessive simplicity by artfully supplementing the finally overcome trials of the
Venetian gentlemen’s gang with the seeds of future difficulties for the gentlemen,
arising from the newly acquired authority, as well as knowledge, of Portia and
Nerissa.
AN ENDLESS INHERITANCE OF
EMBARRASSMENT
This secularisation of the case of the rightful but devilish claimant operates by
transposing the site of judgment into the real world, and by replacing the devil
with a Jew. This change can be read with various sets of parameters. On the one
hand, Venice, the model city, with its openness and egalitarian ambition, endows
every citizen of any nation with which bilateral trade relations existed with the
full exercise of the right of a Venetian citizen. There were Jews, legitimately living
amidst the Christian population. On the other hand, the question posed by the
worldly transposition of the evil force is the question of their social status, not a
problem in connection with devils. They are dispossessed, indeed illegally so,
which does not impinge on their situation. But a dispossessed and publicly
shamed human is likely to fall into the status of slavery. This question of slavery is
implicitly and explicitly omnipresent in The Merchant of Venice (4.1.89–100).15
The issue now is: what can a slave be trusted to intend and perform in relation to
14
Jérôme Baschet, Les Justices de l’au-delà. Les représentations de l’enfer en France et en Italie,
Bibliothèque des Écoles françaises d’Athènes et de Rome (Rome, École française de Rome, 1993)
fascicule 279.
15
The theme of a mandatory active ‘rightlessness’ (as opposed to passive toleration) for Jews, one
of the few great themes that epitomise old-European anti-Judaism in patristic and later theological
and legal (canonical) elaboration, boils down to the claim that the ‘slaves of the letter’ be reduced to
slavery in every other, but especially the technical-legal sense, as well. Launcelot Gobbo impersonates
an entire library of passages from the Fathers, councils’ and synods’ decrees, canonical and theological
commentaries, judicial decisions, that ask the question of a Jew’s capacity to have Christian servants,
and its resolution in the negative.
280 Anton Schütz
truth? What wish to produce truth can he have, considering his status, as an
outsider to the sphere of respected enjoyment which endows life with its
charm?16
If one looks at the numerous earlier narratives where the flesh-bond story
plays a role, what is striking is not that most versions, after sounding all chords
offered by Christian piety and theology, equity and common law, stage the ironic
or paradoxical adoption of Jewish literalism against the Jew and in favour of the
Christian cause (as does Shakespeare), but that they end with the dismissal of the
money-lender’s claim. Shakespeare, in contrast, has Shylock subjected to a session
of shaming defacement, a session which strains current sensibilities and apprais-
als beyond return, and indisputably so, as has been shown once again by the
general outcry after the leaking of the photographs from Abu Ghraib. That
appraisals and sensibilities changed after the Second World War and should best
be simply admitted as a matter of fact. There is no need to justify this change by
the ostentation of a ‘holier-than-thou’ type of compassion. On the other hand,
what is lost if one admits that Shakespeare wrote scenes that were to be deeply
embarrassing to people living four centuries after him? There is no good reason
to take sides with our embarrassment against Shakespeare. Such an argument
would abusively elevate our embarrassment to legal status, and would lead, if to
anything, only to censorship or deliberate euphemistic misreading. That is why
none of the many well-meaning attempts to save Shylock against Shakespeare has
ever been entirely convincing. But to take sides ‘for’ Shakespeare and against our
embarrassment is equally misguided. ‘We are still painfully aware that Shylock
has attempted murder, and it would be a deep affront to our sense of justice if he
now said, “I’ll stay no longer question”, gave his characteristic shrug, and walked
out of the courtroom’,17 says Mahood in relation to Shylock’s ‘manifest proceed-
ing’ (4.1.354) to kill Antonio in cold blood. What use is such an apology? Or,
when the judge lets Shylock know that the law has another hold on him, what is
the point of claiming that ‘Our normal, human reaction here is, again, satisfac-
tion’.18 The claim that such a satisfaction is a ‘normal, human reaction’ or the
claim that the Duke’s ‘mercy’ to leave Shylock his life (a life, patently, of life-long
hostageship, humiliation and exposure) should be taken at face value, but remain
somehow theoretical. Any hint on how precisely to go about feeling about
Shylock, on the way in which it is ‘normal’ and ‘human’ to feel about Shylock,
would be greatly appreciated.
The idea of imposing, to earlier works of art, scholarship, literature, science,
politics, by some informal type of retroactive legislation, standards of political
16
Agamben, in Homo Sacer, Sovereign Power and Bare Life (Stanford, Meridian, 1997), highlights
the famous passage of Politics where Aristotle refers to euemeria, bliss/Glück/bonheur as an explana-
tion why people are so attached to life/zoe. Agamben comments on Aristotle’s understanding of the
relationship between bios and zoe, not on the social status involved, which is the other topic present in
1278b30–31.
17
The Merchant of Venice, n 3 above, Introduction, at 18.
18
Ibid.
correctness, is one of our days’ most powerfully monstrous ideas. It would subject
especially (yet in no way exclusively) the performing arts to the most unbearable
form of censorship. What is on the other hand barely the appropriate response to
this is to take sides, with Shakespeare on Shylock, with Mozart on Monostatos
(etc), simply and deliberately ignoring the embarrassment they give rise to. Yet
nothing excludes other suggestions, such as that of examining in depth Shylock’s
situation, situation-bound interests, potential moves. Why would he try to kill
Antonio: does he misconstrue the situation he would thereby create to the point
of assuming that he could survive the result and aftermath of taking Antonio’s
life? Yet, if killing Antonio was not his plan, what is the point of Shylock’s
repeated refusal to show mercy?
In spite of all these at first incompatible requirements, there is one account of
Shylock’s way of acting which, I think, allows a coherent and ‘rational’ explana-
tion of the strategy underlying his unsuccessful campaign. Shylock’s position in
Venice is severely overshadowed by his constant humiliation as a Jew, a money-
lender, a usurer. What if each of his steps was chosen to fit into one overriding
strategy, a strategy chosen to emancipate himself (plus, possibly, all Jews of
Venice) from his difficult condition? In this case, the only way that could possibly
lead in this direction would be to invert the usual pattern of dependence, work
his way out of passive toleration to active mastery. One way of doing so is to
succeed in becoming, be it only for a short moment, master over the life of one of
the Christian Venetian gentlemen, who make his life a misery. Is it surprising
that, as soon as it is offered to him by the need in which Antonio finds himself on
behalf of Bassanio, Shylock eagerly grasps the possibility of doing exactly this? Is
it surprising that he suggests the crude and exorbitant penalty? That he firmly
rejects the prospect of mercy when the situation becomes increasingly difficult
for Antonio? The only way in which his project of enforcing equal recognition
can succeed is to hold Antonio’s life in his hand, be it for a second, then letting go.
Shylock’s story never passes the threshold, separating the ‘would do’ from the
‘does’, the word from the deed, the oath from the action. Shylock remains a
prisoner of ambiguity: he will kill Antonio. But if he doesn’t, if he drops the
dagger, then he will force Antonio to take his forfeited life back, as a gift from
Shylock’s own, free hands. In the latter case, one might ask oneself: just how
much would Antonio have liked to be seen at that?
What Shylock does not see is that, in the eyes of his Christian compatriots, his
project is the most adverse, the most dangerous, the least acceptable, even worse
than a potential courtroom homicide committed against the person of Antonio.
In one, decisive sense the uninterrupted continuation of Shylock’s state of
humiliation is the overriding, the structural stake for the Venetians. The only
thing to be avoided absolutely is not one Venetian man’s death, even if he is
popular. It is to see the Jew partake, as an equal amongst equals, in the give and
take of Venice. This is why Shylock has to be stopped before he can take the
position that allows him to choose between taking Antonio’s life or leaving it to
him. It is true that Shylock’s oath and his repeated reference to this oath make it
282 Anton Schütz
easy for Portia/Balthazar to find good reasons to stop him before this happens.
Yet, these declarations were indispensable for the pursuit of his project; without
them he would not have been able to avoid accepting one or the other offer of
negotiation or demand for mercy.
STAGING PREORDAINED INCUMBENCIES
Shylock never makes it to the effective knifeman and remains a potential one all
along. He would cut, and is tried for this. Supposing, for a second, that having
been allowed to cut, Shylock had effectively maimed or killed Antonio, where
would this attempt have taken him? The cut would have happened at court,
within the session, coram judice, in front of the judge, even coram duce, in front of
the Doge, supreme chief of executive power, and in the midst of ‘court officials’.
Where would that have led him? The point to understand here is the central
mystery of legal rule located in the law courts. Courts are, as invariably as
incurably as unadmittedly, in exception from law: the merest gaze at what
happens in a courtroom, if it has freed itself from formalist apologetics and
institutional or (for lawyers) professional narcissism makes clear that legal
procedure is much more largely determined by ‘practical routine’, ie merely
factual possibilities of action, than by law.
The question what Shylock would have done is thus our horizon indépassable.
Comparison with Angelo in Measure for Measure helps. In both plays, neither of
which is a tragedy, heinous crimes and bloodshed are bound to remain uncom-
mitted. In Measure for Measure, both of Angelo’s culpable actions, murder and
rape, are, as far as his own contributions are concerned, perfectly committed; if
the first is thwarted, the second is converted into a marital encounter, this
happens, as lawyers would put it, outside of Angelo’s sphere of action. Everyone,
at the end of the play, understands what Angelo had been up to, what he had
wanted, and did not and never will get. He, too, knows this, with the effect that
there is no obstacle to his resocialisation. But Shylock? What did he want? No one
knows, it seems, or wants to. Yet, to kill Antonio would surely be a suicidal move
on his side, and is Shylock really either a suicide candidate, a potential suicide
killer, technically speaking, or simply stupid enough to put his life at peril by
bloodshed at court?
But why, then, did Shylock even make claim to cut into Antonio’s breast as
stipulated in his bond? What becomes clear, at last, is that there is something that
expresses itself in the manifest action, the bond, the forfeiture, the courtroom
proceeding; a second, more fundamental structure that makes some certainties
appear as nothing more than mere rationalisations. This structure is in the
service of the painfully inadmissible and therefore silent order, according to
which even Christian mercy makes no exception to the rule that, in order to
become legal, to prove itself superior, to be victorious, or simply to flourish
institutionally, a body of truth needs to measure itself against an addressee of

justified if exceptional mercilessness, a merciless antagonist. The Christian posi-
tion stands in need of, is vitally dependent on, ‘addicted’ to, a manifest antagonist
that plays the merciless role of a foil to Christianity’s mercy. Who can embody
such mercilessness? Shakespeare feels that a simple individual character alone
would not be sufficient in the employment. What helps out is the role-
distribution, underlying the unseen overall orientation of Western Christianity,
more specifically the immemorial history of the Judaeo-Christian divorce.
A COMMUNITIY’S INCOGNITO
It is well known that Greek theatre, and especially classical tragedy in its Athenian
Urszene, was not a cultivated after-office pastime, but located within the very
centre of the public’s lives, involving the spectator’s entire existence. It was
constitutional in the full legal sense of the word.19 If Mikhail Bakhtin has left his
study of the Carnival in Rabelais, with its ‘carnivalisation of literature’, without an
equivalent exploration of theatrical literature,20 he has nonetheless provided the
conditions for a reappraisal of early modern theatre by understanding it other-
wise than as a well-separated internal site within society, a series of micro-
happenings unconnected to the macro-happening of history, a mere facultative
supplement at the periphery of peoples’ lives. It is this otherwise that has led to
interpreting theatrical literature no longer as an inventory of scripts destined to
fit out this internal supplement with changing contents. Theatre appears in this
view not as a second reality within ‘reality’, or a stage within a stage, but as part
and parcel, and indeed as a moving part, of the societal community’s own history.
Accordingly, the art of reading the plays of the past is today predicated on the
notion that they illustrate the compassing society/reality/history itself; and this in
modernity, whether early, late, or post-, no less than, for example, in classical
Athens.21
In addition to mean the world, the stage is here seen to be the world! If we
accept this view, a play like The Merchant of Venice presents itself in guise of a
liturgy, a ceremonial order, a ritual, a solemn and powerful statement of self-
manifestation of the community that stages it; of that compassing community
19
See eg, Suzanne Said, ‘La tragédie de la vengeance’ in Gérard Courtois (ed), La vengeance, Etudes
d’ethnologie, d’histoire et de philosophie (Paris, Cujas, 1984) 47–90.
20
Mikhail Bakhtin, Rabelais and His World, trans Hélène Iswolsky, (Bloomington, IN, University
Press, 1993; on Bakhtin’s silence about theatre, see Peter von Moellendorf, Grundlagen einer Aesthetik
der Alten Komödie (Tübingen, Gunther Narr, 1995) 67–72.
21
Cf the volume edited by Christian Biet (with Charlotte Bouteille-Meister), Théâtre de la cruauté
et récits sanglants en France: XVI-XVII siècle (Paris, R Laffont, 2006).
284 Anton Schütz
that is formed not only by stage and auditorium, actors and public, but also by
the life outside the theatre, ‘the people’ at large, to which the theatre relates as pars
pro toto.22 The community stages itself.
This liturgical understanding of theatre as the self-staging of a society, as the
real life ceremony presented under only the most indistinct of incognitos or
masks, becomes visible when one looks into a category of theatrical production,
which is admittedly rare and obviously peripheral, namely such dialogues with
Shakespeare’s plays, as have chosen to adopt themselves the dramatic form
(rather than that of the commentary). David Henry Wilson’s Shylock’s Revenge is
an example.23 The play was first performed in Hamburg in 1989. It uses the
resource of replying in kind to the ‘treatment’ that a character receives from his
author. The effect is stunning. The play proves capable of undoing what has been
done in Shakespeare’s. Whereas, quite obviously, no commentary has the force of
negating the text it comments on.
In order to stage itself, the community proceeds masked, incognito. Between
the theatrical practice of masks and roles, of incognito and suspended identity,
and society at large, there is no such thing as a pre-established relationship, no
equidistance. In early modern times, invisibility conquers society, far beyond the
borders of the sole theatrical culture. The new continent that will eventually have
grown out of this is modern economy. The role of invisibility in the history of
liberal economy is discussed in Michel Foucault’s explorations of the issues of
modern government.24 Giorgio Agamben’s recent inquiries part ways with
Foucault on one single—important—point. The praxis of non-political govern-
ment in the West, the history of management or oikonomia, of the emergence of
an inconspicuous but for that only the more effective, provisional, urgency-
managing or trouble-shooting practice in the shadow of ineffective, but visible
power, far from being an exclusivity of early modern or modern times, grows its
roots well before modernity, and is traceable throughout the Common Era.25 In
the theatrical ‘version’ of this art of non-political government, we find figures
such as Mephistopheles, or precisely Shylock, who, unwilling, although not
necessarily unwitting, harbingers and instruments of salvation, at once objection-
able and indispensable, strike us as so many visible prosthetic embodiments, or
enlargement devices, of the invisible hand. Their obvious prototype is Judas.
Without Judas, no resurrection: that is why it is important that Judas is buried
22
Theatre considered as visible epitome of the otherwise unseen, as procedural-legitimate aveu or
‘admission’ of that which constitutes the community as communauté inavouable.
23
Published as an appendix in Dietrich Schwanitz, Shylock: Von Shakespeare bis zum Nürnberger
Prozeß (Hamburg, Krämer, 1989) 235–93.
24
See especially, Michel Foucault, Naissance de la biopolitique: cours au Collège de France,
1978–1979 (Paris, Gallimard, 2004) 286 et seq. (On the question of the invisible hand in Adam Smith,
see the lecture of 28 March 1979).
25
Cf Giorgio Agamben, Il Regno e la Gloria: Per una genealogia teologica dell’economia e del
governo (Milan, Neri Pozza, 2007).
correctly.26 Without Shylock, no Belmont, and without Belmont no Act 5, but

also, no complex theatrical investigation into the Christian art of arts, that of
directing the half-transparent conscience of guilty Christian souls, of delving into
the hypomnestic Zwielicht between Christian morals (not: Christian religion) and
urban life and survival strategies; an art which Shakespeare makes his own with
relish in Act 5.
‘LEGALISM’ – JEWISH OR CHRISTIAN?
These negative but indispensable characters are not easy to do on the stage, as
Hegel has seen. Yet they can show in action what the sociologist Talcott Parsons
had, half a century ago, dubbed with the endearing label of ‘evolutionary
universals’. The way to liberal salvation—the advent of God’s government of the
world, in theological terms, or, in secular and economic terms, the global
achievement of Pareto-optimal conditions—is not top-down, it is via embodied
self-interest. Why, better: How is Shylock important and, in Parsons’s sense,
path-breaking? The answer is: against his will, and indeed by means of his defeat,
by being sacrificed to the greater glory of what he seeks with all his means to
oppose. The striking defeat of Shakespeare’s Shylock or Goethe’s Mephistopheles,
meant to be only moderately striking, is all that is left under Christian and
post-Christian conditions, from the tragic fall of Medea or Oidipous Tyrannos.
The theatre of modernity has supplemented what the Greek had not dreamt of
identifying in Medea’s or Oidipous’s downfall: a cosmological meaning.
Shylock, a character which in the overall economy of the plot features as a
laboriously unfolded enabling device for Belmont to happen,27 poses, in his own
terms, a problem of what might be termed transmissional correctness. This
problem, which concerns the ‘Interpretation of Shylock’ by Jewish interpreters, is
included in the more extended question whether, under the conditions of the
Diaspora, a Jew will (can, should) ‘feel represented’ by any non-Jewish artefact
representing Jews, or Jewishness, or some aspect thereof.28 The Jewish villain
26
David Daube, ‘Judas’, Collected Works, Vol 2, 783–799 (787ff.)
27
In assigning to Shylock the role of an unwilling go-between or negotiator, Shakespeare follows a
model that can be followed back at least until Augustine who bestows upon the Jews the role of
carrying the books which are fated to prove, against their will, the truth of the Christian message to
the Pagan candidates for Christian conversion. Yet the book-carrying Jews themselves are, of course,
blind to this truth, and it is this blindness which makes of them, at once, in the eyes of the Pagans, the
perfectly credible, because unwilling, witnesses for the Christian truth and, in the eyes of the
Christians, the equally perfectly efficient instruments of its propagation. Cf Augustinus (Sermo 201),
Migne, Patrologia Latina, vol 38, cols 1032–3.
28
Two recent examples: Martin D Yaffe, Shylock and the Jewish Question (Baltimore, Johns
Hopkins University Press, 1997), who, focusing more on Shakespeare’s opinions and ideas than on
Shakespeare the dramatist, hastens to defend Shakespeare against the claim that he might have been
‘somehow morally obtuse toward Jews’ (at 163); Avraham Oz, ‘The Merchant of Venice in Israel’ in
286 Anton Schütz
Shylock presents a specifically difficult case in this respect. In the name of which
sombre fidelity or solidarity, should a Jew feel closer to him than does anyone
else? If an uncertain sense of tua res agitur seems connected to the Jewish
experience of seeing the Jew Shylock subjected to mistreatment, is it mandatory,
is it even justifiable, to accept this gambit of identification? Different from earlier
takes on the play, many Jewish interpreters of The Merchant of Venice today
relinquish the insularity of a ‘merely’ particular position and prefer to claim their
undiminished right to a universal, ‘unpreconceived’ approach to the play and its
characters, ‘as anyone else’. It is hard to contradict this claim, but it is not
uninteresting to look at its implications. What exactly happens when the non-
Jewish artefact Shylock is no longer recognisable as a Jew by Jews, when Judaism
has lost its status as an ingredient of both Jewish and non-Jewish culture, when
self-made identities and received identifications are as a matter of principle no
longer permeable to each other? The page, if not of Diaspora Judaism, of a
certain art and science of living it, has been turned. One question would be why
join mainstream interpretation, when the very concept of it can only be justified
as long as there are other ‘streams’ as well?
Richard Weisberg’s reading of the play is emphatically not in line with these
dis-communicative tendencies. He refuses to subscribe to the assumption that the
Judaeo-Christian tension is a historical construction that can be crossed or
crossed out, deconstructed or levelled down to the status of one level amongst
others. His interpretations stick to the notion of a Shakespearean Venice popu-
lated by Christians and Jews, and to that of our own world and readership being
still under the call of the historical divorce of Christians and Jews, although at a
different level of the multilayered palimpsest to which the eminently communi-
cative process of a divorce gives rise.29 But Weisberg does not stop at this point.
Far from only invalidating the typical Christian, anti-Jewish blame of legalism
with arguments in favour of legalism and on the dilemmas inherent in the
anti-legalist campaign, Weisberg disattributes the legalism-reproach from the
Jews and returns it to (against) the Christians. Not Shylock’s, but on the contrary
Antonio’s and his friends’ attitudes are marked by legalism. In doing so, Weisberg
avoids subscribing to the established categories, turning upside down the imme-
morial choreography of the Judaeo-Christian divorce. His position is no longer
limited to taking sides in a polemical debate that underlies near two millenia of
interpretational antagonism: by returning the accusation of legalism to the
Christian side, he ventures to change the very terms of this debate, committing
himself to an audacious step. The reproach of legalism, which, since time
Dennis Kennedy, Foreign Shakespeare: Contemporary Performance (Cambridge, Cambridge University

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

tradition, is unmasked as the effect of a classical projection. On one level, things,
Weisberg tells us, are much simpler than we had thought: the dominant,
Christian side has attributed to its opponent a feature that was its own, but that
the Christians refrain to acknowledge in themselves.
It is true that the rabbis never seem to have made that point. Their argument
has been, pretty consistently, that literalism is right, and if this position was
qualified as ‘legalistic’, then the worse for the qualifiers. One looks in vain for the
claim that the usual Christian categories misrepresent and invert the effective
positions; that the Christian interpretation, which prides itself for its spirituality,
should be understood as really legalistic, and that the Jewish approach, which
prides itself for never siding with ideas against letters is, on the contrary, really
anti-legalistic. This does not invalidate Weisberg’s point, but spells out what is at
stake in his contention. For instance, the unequal distribution of power between
Christians and Jews, and the ensuing precariousness of the Jewish side accounts,
could arguably have prevented the Jewish side from making the argument. Even
the reticence some might feel today to acquiesce with Weisberg’s conjecture
might be grounded in the fear that by spelling out the end of a certain game, the
situation is not improved, only rendered less legible. Following Weisberg’s
conjecture, the history of the Judaeo-Christian opposition had been vitiated from
the outset; it has been based on one big and fat misunderstanding, commonly
shared by all concerned.
Neither had the Christians been spiritual, nor the Jews carnal. Instead, the
picture presents itself as a much more nuanced one. A Christian position, which,
inaugurating what was first of all (in Jerusalem, at least) a Jewish reform
movement, has given rise to and circulated Good News, that is to say better-than-
legal ways; a programme which was in the end fated to backfire by leading,
paradoxically, into a legalistic deviation, programmed, precisely, by its at length
unsustainable anti-legalism. A Jewish position, which, by means of refusing to
offer a transcendence to law and thus upholding a sharp difference with Christi-
anity (to the point of aggravating the reproach of legalism, to which it was
constantly subjected) had, equally paradoxically, succeeded in resisting Weisberg’s
legalism, the sweeping, paradoxical Christian legalism which becomes intelligible
as the historical mésaventure of the Christian, neutralising, universalising redefi-
nition of the law.
18
The Concept and Performance of
‘The Code’ in The Merchant of Venice
RICHARD H WEISBERG
INTRODUCTION: ‘THE CODE’ AS LITERARY

MARCHING ORDERS
n many otherwise highly varied Shakespearean plays,1 codes oper-

ate as structuring devices that guide the thoughts, words, and
actions of the main players. ‘The Code’ in Shakespeare presents less
as The Da Vinci Code’s indecipherable linguistic puzzle and more as a grammati-
cal ordering of relations, individual or communal, private or public, that appears
to issue marching orders to its intended reader or readers. Regarding Shake-
speare’s works, then, I seek (like the main characters) to locate a grammatically
identifiable text or texts purporting to dictate the characters’ future behaviour.
Although ambiguities and outright conundrums do arise within each identified
Code, and although readers of codes must often grapple with the elusive nature
of linguistic signs, in these plays the focus is always upon how to respond to rather
than how to understand The Code. As in other plays from all epochs,2 codes
demand of often reluctant protagonists a kind of loyalty to a previously
announced set of norms.
1
I am working on a larger project involving the concept of ‘The Good Code’, of which this
chapter forms a key part; other Shakespearean works to be analysed there include Hamlet, Measure for
Measure, King Lear and Richard II.
2
Some famous code-central plays include The Eumenides, where male and female revenge codes
are mediated by Athena; Le Misanthrope, where Alceste’s code of honour is tested (comedically,
somewhat akin to Shylock’s) by the looser standards of social practice; and more modernly Susan
Glaspell’s ‘Trifles’, the 1916 forerunner to her brilliant short story, A Jury of her Peers, in which a code
between women rivals and bests the official criminal process against Minnie Foster, their friend.
290 Richard H Weisberg
Story-tellers, before, during and after the Renaissance, have used explicitly legal
codes to fashion the conflicts within their characters’ lives.3 The Merchant of
Venice, for example, situates the main dilemmas in the play along the lines of
three legalistic codes. The most famous of these codes (although not the very first
mentioned in the play) takes the form of a private contract (The Private Code), a
sealed instrument dictating the terms of a loan and the obligation of the
borrower should he default on it. When the latter, Antonio, in fact fails to pay the
lender, Shylock, within the stipulated time period, the bond calls for him to
forfeit a pound of his own flesh. Shylock decides to go to court instead of simply
taking the flesh extra-legally, but The Private Code as its parties had previously
understood it is deconstructed by a clever judge (Portia in disguise) who then
unleashes upon Shylock the ‘Alien Statute’ (The Public Code) that fully undoes
him. Earlier in the play, Portia grapples with yet another code under the terms of
which she must choose her husband. Her father’s posthumous voice (The
Testamentary Code) orders her suitors to choose from three caskets, much as
Shylock’s contract seems to dictate the cutting of Antonio’s flesh. As we shall see,
Portia begins by respecting this strange form of dead-hand control over her
marital decision, just as she (in disguise as a learned jurist) later shows at least a
preliminary respect for Shylock’s contractual Code. In both cases, she will find a
way, however, to escape the fair meaning (which she fully grasps) of the binding
provisions so plainly authored by these older men.
Ultimately, Portia acts in the direction of her most innately felt value, which we
shall call here The Marriage Code. In the service of that Code and no other, she at
one and the same time defeats Shylock and senses an empathy for the Jew as the
only Venetian male character she has seen in action who also believes in the
sanctity of Codes, and especially perhaps The Marriage Code. As the play ends,
she realises that Shylock’s adversary, the man whose life her cleverness has saved
in open court, has induced her new husband to give away the symbol of that
Code. She will henceforth insist on its meaningful implementation within her
fledgling marriage.
3
The Greeks, again, introducing trial by jury; Shakespeare, followed by the Jacobeans, and then
so many modern novels. In Shakespeare, code-plays often lack this explicitly legalistic element. So, in
Hamlet, there are fewer nods to law and trials than we find inThe Merchant of Venice, although these
do exist and they have considerable importance; there is no explicit legal code structuring the action.
Rather (again as in many stories before and after this one) marching orders are provided by non-legal
authorities and influences who issue their demands to the protagonist. Hamlet, most notable perhaps
among many such protagonists, must respond one way or another to The Code, and it is of little
importance to him that nothing like the State of Venice or any other government has placed its power
behind the demand. The Code insists first on being understood but then especially on being
implemented. The protagonist may, often after struggling with himself and others, hesitate (or refuse)
to comply.
‘The Code’ in The Merchant of Venice 291
THE UNDOING OF THREE CODES
The Pound-of-Flesh Bond: a Private Code at Arm’s Length

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

This bond doth give thee here no jot of blood;
The words expressly are ‘a pound of flesh’.
Take then thy bond, take thou thy pound of flesh;
But in the cutting it if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice. (4.1.315–22)
Summarising a distinguished tradition of commentary highly critical of Portia’s

manoeuvre, I have suggested elsewhere8 that Portia’s interpretation of the con-
tract can be accepted only because the comic medium of the play both demands
and condones such trickery. Under the conceit of the present discussion, Portia’s
outrageous hair-splitting9 in open court ironically reveals her allegiance to the
idea of The Code. But it is a different code altogether than the one she is
supposedly interpreting for the court. She covertly substitutes for a fair reading of
The Private Code undertaken by Shylock and Antonio a wholly separate Private
Code: that of the marriage contract pledged between herself and Bassanio in
Belmont.10 Without her absurd interpretation of the former there will be no
consummation of the latter. Bassanio has obviously committed all his emotional
energies to his imperilled friend and has even gone so far in open court as to
‘sacrifice’ Portia (at least economically and rhetorically) to Antonio’s needs:11
there will be no happy bedroom in Belmont until Antonio is set free.
The problem that becomes obvious for Portia at trial, however, is to divine
whether a liberated Antonio might stand as a yet greater threat to her happiness
than the one who almost lost his flesh. So, before she fully releases this interven-
tionist older man, Portia has a test waiting for Antonio. She deftly shifts from a
Private to a Public Code.
Portia perhaps excepted, which is basically my position in R Weisberg, Poethics: and Other Strategies of
Law and Literature (NY, Columbia University Press, 1992).
8
Ibid ch 10.
9
‘Rabulistisch’ or ‘ignominiously deceitful’ was the usage coined by an Austrian in the von
Ihering mould, a 1920s’ essayist named Alfred Polgar (reported in Schütz, n 5 above).
10
For outstanding work on marriages and contracts in Shakespeare, see BJ Sokol and Mary Sokol,
eg in Shakespeare, Law, and Marriage (Cambridge, Cambridge University Press, 2003).
11
Bassanio: Antonio, I am married to a wife / Which is as dear to me as life itself, / But life itself,
my wife, and all the world / Are not with me esteemed above thy life. / I would lose all, ay sacrifice
them all / Here to this devil, to deliver you. (4.1.288–93)
THE PUBLIC CODE AND ANTONIO’S FAILED

CHRISTIANITY
Uncounselled and deeply respectful of law, Shylock accepts Portia’s weird and
inequitable12 reading of the bond. But much worse is in store for the Jew. Portia
pulls out her second rabbit, the text of the Venetian Alien Statute. Under its
draconian terms, he who was a civil plaintiff, respectfully asking the Venetian
court to enforce the privately contracted penalty provision, now becomes a
criminal suspect. This Public Code permits the state to take his life, and half his
property, treating aliens as a separate class when they directly or indirectly
threaten the life of a citizen; further The Public Code permits Antonio, as
(alleged) victim of the Jewish outsider, to control the other half of Shylock’s
wealth. After the state mercifully forgives Shylock’s life and lets him retain that
half of his wealth, Antonio-as-victimised-Christian is fully put to the test:
PORTIA: What mercy can you render him, Antonio? . . .
ANTONIO: So please my lord the Duke and all the court

To quit the fine for one half of his goods,
I am content; so he will let me have
The other half in use, to render it
Upon his death unto the gentleman
That lately stole his daughter—
Two things provided more: that, for this favour,
He presently become a Christian;
The other, that he do record a gift
Here in the court of all he dies possessed
Unto his son Lorenzo and his daughter. (4.1.391–409)
In a detailed analysis of Antonio’s perennially misunderstood speech, I have

elsewhere called this remarkable implementation of The Public Code ‘Antonio’s
legalistic cruelty’.13 Hypocritical and eventually sadistic, Antonio begins by dictat-
ing additional terms to what the state alone had the right to regulate (the first 23
words ‘graciously’ deal with the state’s already articulated resolution of its share of
Shylock’s property). What follows essentially sandwiches an enforced religious
conversion between two technical property arrangements that fully devolve
12
In Poethics, n 7 above, I take issue with those legal analysts who have favourably associated
Portia’s tactics at the trial with the institution of equity. See eg, my response to Mark Edwin Andrews,
Law versus Equity in ‘The Merchant of Venice’ (Boulder, University of Colorado Press, 1965).
13
‘Antonio’s Legalistic Cruelty’ in L Myrsiades (ed), Undisciplining Literature (1999) 180–8;
reprinted from College Literature (1998) vol 25, 12–20.
Shylock’s present and future wealth upon Shylock’s nemesis, Lorenzo. So much
for the ‘mercy’ Portia asked the just liberated merchant to show towards the
already defeated Jewish enemy!
Speaking of Antonio’s demand that Shylock convert to Christianity, Kenneth
Gross’s recent Shylock is Shakespeare14 reminds us that ‘the playwright himself
added the forced conversion to the old story of the pound-of-flesh bond’ to
sources such as Giovanni Fiorentino’s collection Il Pecorone (1558). ‘This adds’,
Gross goes on, ‘to one’s sense of [the conversion’s] contingent perversity’. The
‘cruelly gratuitous’ nature of the demand, its bluntness, seems at first to be as
superfluous to the story’s purpose as it does to any provision of the Alien Statute
under whose provisions Antonio himself has been suddenly empowered as to
Shylock’s property, although not his religious choices.
But if, in Gross’s titular phrase, Shylock is Shakespeare, the cruelty of Antonio’s
statutory interpretation at the end of the trial scene might be imagined as a
‘mockery’—Gross’s word—of the scene as a whole, an intentional reversal of the
general misconception that mercy, somehow, will produce a kinder and gentler
resolution than does strict law to the comedy’s central conflict, or to the
contentious wider world of human conflict. In this sense, Antonio’s cruelty
perfects the playwright’s comic vision and in no way does violence to the already
situated representation of two different hermeneutic worlds, of two strikingly
opposed visions or, better perhaps, optics. The play is everywhere about how
people read the world, what kinds of eyeglasses they put on when they seek to
understand the Codes that order individuals and groups through their lives.
Shylock and Antonio look at these Codes through opposing sets of lenses, and
it is fitting that Portia’s invocation of The Public Code reveals the true opposition
between the Jew and the merchant. She learns by observing: Antonio stands for
the easy unravelling of Codes. If he can upset another man’s religious commit-
ment, if he can abuse the statute to take control over topics untouched by The
Public Code whose terms supposedly control his action, he can also wreak havoc
on her new marriage! The Public Code does not permit Antonio to deal with
Shylock’s religion, and neither does it permit him to dispose of Shylock’s
after-acquired wealth.
Antonio, unbound to any Code, is quite ready to breach all of them! If Portia
by now still has any doubt about this, she quickly learns that the merchant has
induced Bassanio ‘To part so slightly with [his] wife’s first gift’. (5.1.160) Having
tempted her new husband to give his equally new ring to ‘him’ (namely to her in
the disguised role that has just saved his friend), she is delighted to see Bassanio’s
refusal as an apparent ratification of The Marriage Code. Out of her presence, but
eventually fully known to her nonetheless, Antonio manages to wreak havoc
upon it! Little water has flowed under the bridge before the interventionist
merchant works his will upon the fleetingly hesitant younger man:
14
K Gross, Shylock is Shakespeare (Chicago, University of Chicago Press, 2006) 107.
My lord Bassanio, let him have the ring

Let his deservings, and my love withal,
Be valued ’gainst your wife’s commandment. (4.1.465–7)
Antonio is there to exert his own form of power, his strange ability to mediate the
lives of others while appearing to be the least wilful of all his group. Just put your
faith, Bassanio, in me, he seems to say: dispose of your wife’s first ring and go give
it to the ‘man’ who just saved my life! Dispose of your religion, Shylock, and let
me be the ‘trustee’ over all of your wealth, which will eventually go to the couple
that made off with your wealth, traduced your sacred values and, most wretch-
edly of all, sold the ring you had of your wife when you were a bachelor.15 This is
the nature of my ‘mercy’!
THE TESTAMENTARY CODE: A FATHER’S WILL

UNDERMINED
Portia’s own deviousness interpreting the bond exhausts her tolerance for such a
casual approach to codes. Watching Antonio, she feels the nausea not only of her
own hermeneutic excesses but also of Venetian society and its combination of
gracious language and cruel prejudice. Working within her stunning individual-
ism is a struggle that began several Acts earlier, when her father’s Will was tested
against her own will. Portia grapples with her father’s final marching orders (The
Testamentary Code), which her confidante Nerissa in Act 1 calls his ‘imposition,
depending on the caskets’. The heiress wonders aloud whether ‘the will of a living
daughter [should be] curbed by the will of a dead father’. (1.2.22–3) ‘You should
refuse to perform your father’s will’, Nerissa says, and if the wrong suitor chances
upon the right casket, ‘you should refuse to accept him’. Nerissa does not here
directly advise Portia to reject The Testamentary Code but only reminds her that
bad luck might lead to a life of conjugal misery forced upon her by an honest
reading of her dead father’s command. So the two women playfully contemplate
some cheating against The Testamentary Code by setting ‘a deep glass of Rhenish
wine on the contrary casket’ (1.2.88) to distract the inebriated German suitor.
At first, nonetheless, Portia sticks to the terms of the casket choice: only he who
makes a free and uncoached choice of the right casket will win her hand. As
unconscionable as her father’s dead-hand control appears to her, she also loves
and respects him, not only out of formalistic filial duty but due to the nature of
the man himself (as Nerissa says, ‘your father was ever virtuous and holy men at
their deaths have good inspirations’). As tempting as it might be to guide the
not-terribly-bright object of her affections towards the right choice (‘I could
15
Poethics, n 7 above.
teach you / How to choose right, but then I am forsworn’ (3.2.9–10)), Portia for
some 60 lines after Bassanio’s arrival, declines to do so.
Eventually, however, as many commentators have noted,16 Portia guides Bas-
sanio, who is otherwise not that sharp and whose prior actions and interest in
wealth surely would not have led him towards lead17 as the proper choice. She
fairly compels the latter by having a song sung whose final syllables rhyme with
‘lead’ and whose very theme is the attraction to the senses of leaden bells
(3.2.65–75). So does Portia foreshadow the precise tactic she brings to bear on
The Private Contract later on: a long exposition during which she appears to
remain faithful to a code, followed by a reversal in which she undermines it.
It is vital to understand, however, how her decision to ‘cheat’ in both cases
already differs markedly from the grotesque falsification by Antonio of his power
under The Public Code. Portia respects, although very differently both in kind
and degree, the two men who have authored these two bizarre code provisions.
Her respect for her father is paralleled by the emerging empathy she brings to
Shylock as the trial progresses. She feels, as we have seen, for her fellow outsider
to the dissolution and easy oath-breaking of the Venetian male community.
Although excessive, Shylock’s allegiance to oaths must stand in stark contradic-
tion to the flightiness of the other characters at court. Furthermore, although she
probably has not as yet heard that Shylock deeply values the association of
conjugal love and the ring,18 she may have overheard him intone ‘These be the
Christian husbands!’ (4.1.305) at the discouraging moment when Bassanio
pledges her life against that of Antonio. There is therefore a deep irony in her role
as breaker of Shylock’s code, but she does so, as she traduces her own father’s
Code, in the service of her marriage. Her desires fulfilled, however, she will
nevermore abide any further slipperiness. She is going to be absolute about The
Marriage Code.
THE MARRIAGE CODE: RINGS REDEEMED AND

PROMISES KEPT
What, then, is Portia’s attitude more generally regarding The Code? I think we
can conclude that this estimable woman at first respects what she thinks of as
‘good codes’, meaning marching orders dictated by good authorities, such as her
father. So she hazards her conjugal future against the bad luck of her first two
16
Kornstein, n 6 above, at 78, for example.
17
The viewer has in mind the very reason for the problematic loan: Bassanio’s traditional
preference for ‘all that glisters’(2.4.66): his need, that is, to look like gold.
18
18 Shylock is perceived as greedy, as conflating his daughter and his ducats, but this is hearsay
and quite incorrect. And when it comes to his wife’s gift of a turquoise ring, there is no price he would
have accepted for it. See also n 25 below.
suitors, who wrongly choose gold and silver. Amorously following her (perhaps
incomprehensible) attraction to Bassanio, and now armed with a clear ‘right
answer’ under The Testamentary Code, she compromises her fidelity in favour of
a personal Code she maintains throughout the play: fidelity to the specific
individual whom one loves above all else. We can call Portia’s overriding code
‘The Marriage Code’. As the comedy progresses from her decision to cheat against
two codes in favour of a higher one, The Marriage Code is more and more
associated with a bond grafted physically onto the love object through its symbol,
the Wedding Ring.
The audience thus has learned three vital lessons about Portia’s Code, prior to
her disguised intervention in the trial scene. First, she is willing to accept certain
bizarre code provisions when she feels that there might be a good author behind
them. This explains her choice in open court to accept as enforceable the terms of
the bond generated by Shylock and Antonio. She does not object overtly to the
‘unconscionable’19 pound-of-flesh provision, just as she did not at first throw off
her father’s outrageous dead-hand control over her marriage plans. Secondly,
though, Portia will compromise even a Good Code when The Marriage Code
supersedes it. Thus, to relieve her astonishingly over-invested new husband of his
anxiety towards Antonio’s fate, Portia must intervene to save the merchant from
apparent impending death. Although the best commentators have rightly deni-
grated her interpretive tactics in reading the bond provision to deny Shylock any
blood or anything more or less than an exact pound of flesh,20 our analysis
reveals the possibility of her trumping one code when a more important one
would otherwise be jeopardised. And thirdly, we have learned from the casket
subplot and from her willingness to intervene forcefully on behalf of her
husband’s emotional wellbeing, the absence of which prevents the consumma-
tion of The Marriage Code,21 that Portia will not rest until that Code is fulfilled.
It remains to emphasise a new Act 5 (as I have in detail elsewhere),22 and
Portia’s surprise to find Antonio continuing to occupy (here, literally) her own
space on Belmont. Hasn’t he had enough of tagging along with Bassanio? Of
19
Under current definitions, an unconscionable provision in a contract is one that an outside
expert might see as ‘so one sided as to oppress or unfairly surprise [a] party’, Black’s Law Dictionary
(5th edn, Minnesota, West, 1979). In this sense, The Testamentary Code is more oppressive than the
jointly authored arm’s-length bond between Shylock and Antonio!
20
As held by Rudolf von Ihering, an early and distinguished supporter of Shylock’s position
during the trial (see n 7 above), when no one raises the outrageousness of the penalty clause, the rest
of the contract must be read honestly and, according to von Ihering and others in his wake, Portia’s
reading of the contract is less than convincing.
21
Portia: ‘There are some shrewd contents in yond same paper / That steals the colour from
Bassanio’s cheek: / Some dear friend dead; else nothing in the world could turn so much the
constitution / Of any constant man’. These lines (3.2.251–5) mark Portia’s awareness, just after the
happiest moment of her life, that her husband has received such terrible news as to delay until
resolved the joyous consummation of their wedding oath.
22
Poethics, n 7 above, ch 10: ‘‘Then You Shall be his Surety’’.
causing triangulation23 where direct obligation should be the operative para-

digm? Of keeping Bassanio from herself? Who but Antonio, Portia must be
thinking, convinced my husband to give away his new ring despite the younger
man’s uncharacteristic hesitation to do so? And why is he still hanging around?
Her decision to ‘scant this breathing courtesy’ (5.1.152) towards the interposing
merchant is our first sign that she would have vastly preferred him to have stayed
in Venice, celebrating the new life her efforts achieved for him and away from the
baleful influence he will again try to exert over Bassanio. Yet that is exactly what
happens, for when Portia demands Bassanio’s promise to keep his oath, when she
reminds the audience of Shylock’s allegiance to his spouse’s ring24 and accepts
nothing less from Bassanio from now on, Antonio grotesquely intervenes again:
I once did lend my body for his wealth,

Which but for him that had your husband’s ring
Had quite miscarried. I dare be bound again,
My soul upon the forfeit, that your lord
Will never break faith advisedly. (5.1.249–52)
To which Portia can only reply, legalistically and with extreme if not bitter irony:
‘Then you shall be his surety’. (5.1.253)
The Marriage Code abides no third-person interventions, certainly not before
its consummation! Is Antonio forever bound to stand in for Bassanio, first
(disastrously), in procuring the loan for his profligate friend, and now (more
horrifying, still) on the oath and ring that sanctify the direct obligation of The
Marriage Code! Portia wants Antonio gone, or at worst to stick around if he must
while leaving his young friend to her, for once and for all.
CONCLUSION
Codes found in stories help to structure action and to test character, and
Shakespeare uses them often. The Merchant of Venice can be fruitfully approached
by foregrounding the three Codes Portia invokes yet undermines, and the one
true Code she preserves, which binds her to the Jew it paradoxically requires her
to defeat: The Marriage Code.
23
Ibid.
24
Shylock: ‘It was my turquoise; I had it of Leah when I was a bachelor. I would not have given it
for a wilderness of monkeys’ (3.1.106–9);and see n 18 above.16
Index
Please note: characters are listed in the on punishment 178

main index; the plays are indexed under relationships 65–6, 78–9
Shakespeare, William, works Anne of Denmark 59
Annesley, Brian 168
Aaron 16, 221–2 Annesley’s Case 168, 169
Achcar, G 201 anti-Popery 187–90
Ackroyd, P 257 anti-Semitism see Jews, attitudes to
Act of Supremacy Antipholus 23–7, 28, 29–30, 31, 33, 35
1534 208, 209
Antonio
1559 209–10
The Merchant of Venice v, 83, 238, 244,
actor, and advocate’s art vi
245–9, 250–1, 277–8, 280, 281, 286
Adriana 23–4, 27, 30, 31, 33–4, 35
and The Public Code 290, 291–2,
Ady, Endre 261
293–5, 296
Aegeus, King 34
The Tempest 108, 111, 178
Aemilia 22–3
Antony, Mark 183
Aeschylus
Arden family 193
The Eumenidies 103
Arden, Forest of 162
Oresteia 101–4, 105–6, 108, 116–17
Agamben, G 284 Arden, Mary 60
Agamemnon 102, 153 Aristotelian concepts 209, 216
Agricola, Georg, De Re Metallica 143, 147, Aristotle
148 Fig., 149, 150 Fig. Nichomachean Ethics 182, 184
Aguecheek, Sir Andrew 179 Politics 155
al-Queda 199–200 Arminianism 189
al-Zawahiri, Ayman 197 Ashcroft, Attorney-General 198, 199
Alarbus 12 assumpsit action 27–32
Albany, Duke of 163 Astraea 207
alethurgy 271–3, 275 Autolychus 178
Ali, T 200–1 Aylmer, Bishop 187, 209
Ancient Monuments and Archaeological Azo of Bologna 180
Areas Act 1979 203 Azzam, Abdullah 197
Anderson, Sir Edmund 28
Andrews, ME 249 Bacon, Sir Francis 178, 250
Angelo Badiou, A 274
The Comedy of Errors 25–6, 28, 29, 30 Baker, Daniel 45
Measure for Measure vi, 44, 45, 65–79, Baker, JH 27, 28, 29, 30–1
282 Baker, Samuel 192
and Claudio 69–72 Bakhtin, M 283
and Isabella 66–9, 182 Bandello (author) 224–6
and justice of Duke 72–8 Banquo 196
Columns Design Ltd / Job: Shakespeare / Division: Index /Pg. Position: 1 / Date: 13/8
300 Index
Baptista 54–5 Burghley, Lord 143, 144, 165, 188

Barker, F 204–5 Burgundy, King of 163
Barnadine 178 Burke, Edmund, Reflections 190
Bassanio 12, 238, 239, 244, 246, 274, 291, Bush, George, President 186, 198
294–5, 296, 297–8 Bushy 86, 87–8, 179
Basset 83
Bassianus 208, 215 Cade, Jack v
Bate, J 112, 211, 217, 257, 267 Caius 162
bawdy court see consistory court Caius, Dr 58
Beatrice 59, 60 Caliban 113–16
Bell, M 17 Camoöns, Luis Vaz de, Lusidadas 230
Bell, Robert, Serjeant 140, 141–2 Campion, Edmund 193
Belott v Mountjoy vii, 41, 54, 55 canon law 209
Belott, Stephen 41–2, 54, 55 Capulet 57, 124, 125, 127, 131–2
Benedick 59 Case of Mines (Queen v Northumberland)
Benjamin, W 102, 103 138–45
Berowne 43 in Hamlet 145–57
Bertram 44, 47, 49, 53–4 Case of Saltpetre 156
Bibó, I 262 Catesby family 193
bin Laden, Osama 186, 197, 198, 199–200, Catesby, Robert 194
201 Catholic Church, attitudes to Jews 255,
black slavery 224–9 263
Blackstone, Sir William 249 Catholic dissent 144
Blair, Tony 200 Cavell, S 106
blasphemy suit 46 Cawdrey’s Case 209
Bloom, H 14 Cecil, Sir Robert 168, 170
Boccaccio, Decameron 44 Celia 162
Bolingbroke, Henry 88 Chancery court See Court of Chancery
Bond 8, 12, 32–3, 41–2, 51, 84, 95, 99, 128, Chandler, William 59
246–9, 290–92, 297 Charles I 189
bottomry bond 247–9 Chettle, Henry 193
The Book of Common Prayer 58 church consistory court see consistory
Borachio 59 court
Borromeo, Cardinal, Spiritual Testament civil law v common law 168–9
193 Clark, Alice 44
Boykin, General William 198 Clarkson, PS 242
Boynton, Andrew 97 Claudio
Brabantio 14 Measure for Measure 44, 53, 65–6, 67–8,
Bracton, Henry de 180–2, 209, 245 69–72, 73–8, 177
Bradley, AC 163, 166 Much Ado About Nothing 47, 49, 59, 66
Brehon Law 9, 10 Claudius, King 146–7, 149, 151, 154, 155,
Brook, Peter 269 179
Brooks, P 122 Cloten 58
brother/sister relationship 69–72 Clown
Brutus Hamlet 137, 151–3
Julius Caesar 183 Titus Andronicus 204–5
of Troy 217 Clytemnestra 102
Bunyan, John 188 The Code 289–90
Index 301
Coke, Sir Edward 8, 28, 86, 152 Cowell, John, Interpreter 19–20
on common law 206 credit network 26–7
and Gunpowder Plot 191–2, 195 Cressida 47
on inheritance 170, 172 Cromartie, A 211–12
on monarch’s power 205, 209–11, 212, Cromsell, Oliver 187–8
216 crown, as prop 237
on punishment 178, 183
on seisin 242 Darrell, Mary 55–6
and Troynovant 217–18 de Grazia, M 155
Coleridge, ST 66, 76 Dedalus, Stephen 11–12
commedia dell’arte 273–4 Dekker, Thomas, The Pleasant Comedie of
common law Patient Grisill 53
v civil law 168–9, 216 Deloney, Thomas 52
and imperial government 207–12 democracy, and absolutism 123–5
and natural law 206 Derrida, J 103
and prerogative courts 205 des Croix, Nicholas-Chrétien, Les Portugais
Company of Mineral and Battery Works Infortunés 224, 229–34
143 Desdomona 13–14, 15
Company of Mines Royals 139 detain, concept 27
consideration 20–1, 97–8 ‘The Devil of the Vault’ (poem) 192
and certainty 35–7 Diana 49
and credit network 26–7 Dicey, A.V. 204
and land law 20–1, 97–8 Dick the Butcher v
consistory court 41 Dickens, Charles 184
blasphemy suit 46 Digby, Sir Thomas 187
jurisdiction 42 Doge 274, 275
known as bawdy court 44 Don John 47
procedure 42–3 Don Pedro 59
in S’s plays 43–4 Donne, John 188
and S’s vocabulary 43 dowry 240
Stratford cases 44–6 drama see theatre
theatricality 47–9 dramatic properties 237–9
women’s cases 46–50 Dromio(s) 23, 30, 31
contract, Renaissance era 128–9 Duke Frederick 16
see also consideration Duke Solinus 22, 29–30, 35
conveyance 96–7 Duke of Venice 275
copper, rights in 140–3 Duke of Vienna 72–8, 177, 178, 179, 218
Cordelia 53, 162–5, 169 Duncan, King 194
Cordell (Annesley’s Case ) 168
Coriolanus v, 111, 183 Eagleton, Terry 187
Cornwall, Duke of 163 Edgar 160, 166–7
Court of Chancery 161, 182–3 Edmund 16, 166–7, 169–71
Court of High Commission 205, 209, 210 Egeon v, 22–6, 30–1, 33–4, 35
Court of Record 61 Egerton, John 170
Court of Requests 41, 54 Egerton, Thomas, Lord Chancellor (later
courts Lord Ellesmere) 168, 170–1, 172
consistory see consistory court Egeus 56
prerogative 205 Elbow vi
302 Index
Elizabeth, Queen 170 Gaius, Institutes 162

see also James I; royal prerogative Garnet, Father Henry 187, 190
and Case of Mines 138–9, 143–5, 146–7, equivocation 185–6, 195
152, 156 Garnett, John 201–2
imperial power 209–10 Gaunt, John of 85–6
on Prince’s qualities 121 Gerard, Gilbert, Attorney-General 138
as Protestant queen 187, 188, 189 Gertrude 147–8, 151
succession concerns 206, 207–8 Gesta Grayorum 32–3
and Troynovant 217 Getley, Katherine 45
Elyot, Thomas 209 ghetto of Venice 250
The Book Named the Governor 216 Ghost 138, 147
Emilia 13–14, 16 Giovanni, Ser, Il Pecorone 246, 248
Empson, W 112 Girard, R 15, 106
entailment 94–5 Glaucon 164
Eötvös, Károly 261 Gloucester, Duchess of (Richard II) 85
equivocation 185–6, 194–6 Gloucester, Earl of (King Lear) 43, 166–8,
error, concept of 19–20, 34 170
Essex, Earl of 165, 170, 172, 188, 191 Goneril 160, 163–4, 169
Eucharist sacrament 250–1 Gonzalo 110–12
Evans, Sir Hugh 58 Googe, Barnabe 55–6
Exchequer Chamber 20 Gratiano 238, 239
exclusion drama 113–16 grave-digging Clown 137, 151–3
Gray’s Inn 32–4
Falstaff vi, 17, 177 Green (character) 179
Fawkes, Guy 186 Greenblatt, S 108
Fenton, Master 58, 60 Greene, Thomas 59
Ferrex 169, 207–8 Greville, Sir Edward 62
Feste vi Grissell, Patient 53
fifth of November 192 Gross, K 294
Grotius, Hugo 128–9
Fish, S 273
Guildenstern 145–7, 149
Fitzherbert, Anthony 28
Gunpowder Plot 180, 186–7, 190–6
Florizel 53, 58
Guy, J 208, 216
Foakes, RA 204
Gyulafehérvar 260
Fool 160
Ford, Master Frank 44, 58
Hal, Prince vi
Forest of Arden 162 Hale, Sir J 254–5, 262–3
Fortescue, Sir John Hales v Petit 137, 151
De Laudibus Legum Angliae 168–9 Hall, John 61–2
The Governance of England 211–12 Hall, Susannah 44
and Troynovant 217 Hall, William 61
Fortinbras 17 Hamlet 17, 160
Foucault, M 179, 271–2, 273, 284 and Case of Mines 138, 145–57
Foxe, John, Book of Martyrs 187 on culpability 181–2, 183
France, King of 164 Hancocks, Isabella 61
Frauds, Statute of (1677) 243 Hare, David, Stuff Happens 198, 200
Frederick, Duke 16 Harrington, Sir John 189
Frye, N 177 Hart, William 61
Index 303
Harvey, Sir William 168 Iago 11, 47, 169

Hathaway, Ann(e) 41, 51, 59, 60, 61 Ibbetson, D 27
Hathaway, Bartholomew 61, 62 Imogen 58
Hathaway, Richard 52, 61 imperial government, and common law
Haug, Langnauer & Company (a firm) 207–12
139 inheritance
Hegel, George 101–2, 103, 285 legal traditions 161–5
Helen missing trusts 166–72
of Troy 11, 16 Safety of Inheritances 156
Helen (Helena) Inner Temple 32–4, 169
All’s Well That Ends Well 44, 49, 53 Inns of Court, disamity 32–4
Henry III 180 Inquisition of Venice 25
Henry IV Iphegenia 153
King of England 88 Isabella 65–79
King of France 233 brother/sister relationship 69–72
Henry V v, 177, 179 on culpability 182
as Prince Hal vi and justice of Duke 72–8, 179
Henry VI 52, 212 relationships 65–6
Henry VIII 208, 217 role 78–9
Herbert, George 188 virtuousness 66–9
Herculean ideal 73–4, 79 Iser, W 121
Hermia v
Hermione vi, 44, 49 Jack of Newbury 52
Hero 43, 49, 59 Jacquenetta 43
Heywood, Thomas 203 Jaffa, H 162–3
High Commission Court 205, 209, 210 James I, of England (VI of Scotland) 59,
Hitler, Adolf 264 156, 160, 170, 196
Hobart, Henry, Attorney-General 156–7 see also Elizabeth, Queen; Mary Stuart
Hobbes, Thomas 105, 106, 111 constitutional debates 164
Behemoth 190 and Gunpowder Plot 190–1
Leviathan 189 on justice 183
Hochstetter, Daniel 139, 144 succession issue 144–5, 153, 156
Hoghton family 193 Jessica 239
Holdsworth, WS 8 Jesuits 185, 188
Holinshed, Chronicles 163 Jews, attitudes to
Holmes, S 78 Christian attitudes 255
Holocaust 264–6, 267, 269 first ghetto 250
Hooker, Richard, Laws of Ecclesiastical late 16th C England 253–4, 255, 256–7
Polity 188, 209, 213–14, 215, 216 late 19th/early 20th C 258
Horatio 138 renaissance Europe 254–5
Hughes, Ted 193 jihad 197, 199, 201
humiliation motive John, Don 47
Le More Cruel 224–9 Johnson, Ben, The Devil is an Ass 243
Les Portugais Infortunés 229–34 Jones, WJ 170
Hungarian anti-Semitism 263–6, 269 Jonson, Ben, Volpone 9, 11
Hunt v Bate 97 Joyce, James, A Portrait of the Artist as a
Young Man 11
Iachimo 44 Judicature Acts 1873–75 161
304 Index
Juliet on theatre as trial 160

Measure for Measure 44, 73, 76, 177 legal codes 290
Romeo and Juliet 57, 124, 125, 128, Lennard, John 55–6
129–30 Leonato 59–60
Justinian Leontes, King 53, 109, 177–8
Corpus Juris Civilis 162 Levine, Mortimer 145
The Digests 180, 212 lex Porcia 240
lex talionis 224, 226
Kallipolis 164 literality, as weapon 224
Katherine of Aragon v livery of seisin 97, 241–4
Katherine (Kate), The Taming of the Shrew Livy, Roman History 206, 217
43, 49, 54–5, 127 Lockey, BC 106–7
Kent, Earl of 160, 161–2, 164 Lopez, Dr Roderigo 254
Kentish Forest 162 Lord Dudley v Lord Powles 28
Kentish Gavelkind 161–2, 168 Lucentio 55
kingship see regicides; royal prerogative Lucio 65, 67, 76
Kornstein, Daniel 169 Lucius 218, 219
Kornstein, DJ 250 Lucrece 31
Kott, J 269 Lupton, J 114–15
Luther, Martin, Against the Jews and their
Lady Macbeth 195 Lies 255
Laertes 154, 181
Lambard, William, Eirenarcha 175–6, 178, Macaulay, TB 191
179–82 Macbeth 169, 184, 194
Lambert, Edmund 171 equivocation 195–6
land law 83, 85, 241 Macbeth, Lady 195
consideration 20–1, 97–8 McDonald, Russ 194
conveyance 96–7 Macduff 196
entailment 94–5 Machiavelli 116, 121, 169
perpetual freehold 95 Maffei, Father, Historiarum Indicarum 230
possession see possession Magna Carta 139–40, 143, 219
reversion 87–8, 89–92 Mahood, MM 280
las Casas, Bartolomé de 226 Maitland, FW 8
Lavinia 214–15, 219 Malone, E 145
law Malvolio 179
civil v common 168–9 Malynes, Gerard, Consuetudo vel Lex
as dramatic discourse 221–2 Mercatoria 248
interpretation principle 140 Mamillius 178
linguistic universal v personal 122–3 mancipatio 244–5
moots, dramatic use 222 Marcellus 149
and nature 109–10 Marcus Andronicus 207, 214–15
tragedy of 105–7 Margaret of Anjou 52
law-positing 102 Mariana 44, 49, 53, 73–8
Lawrence, Friar 43, 57, 131 Mark Antony 183
Leah 239 Marriage Code 290, 296–8
Lear, King v, 53, 105, 183 marriage contract 51–63, 125–7, 128–9
on inheritance 166–9 by proxy 59–60
on succession 162–5 dowry 240
Index 305
in dramaturgy 53–4, 58–9 Nerissa 13, 239, 240

negotiation/settlement 52–3, 54–7, 60 Newbury, Jack of 52
role of ‘friends’ 51–2 Newlands 138, 139
solemnisation/consummation 57–8, 127 Nicholl, C 41
sponsalia 125–7 Norman ‘Lamond’ 154
in S’s family 60–3 Northern Rising 143–4
Marvell, Andrew 187–8 Northumberland, Earl of
Marx, Karl 10, 11, 17 Case of Mines 138, 143–4
Mary Stuart, Queen of Scots 161, 190 Richard II 88
Mary Tudor, Queen 163, see also Elizabeth, Norton, Thomas 189
Queen The Tragedie of Gorboduc 169, 207–8
masque, use of 112–13 November the fifth 192
Matua, M 200 Nussbaum, M 183, 184
Melville, Herman 197 Nuttall, AD 9, 14
Menenius 211
Merchant, Statute 247 Oberon 11
Mercutio 132 Oedipus (Oidipous) 271–3, 274, 275
Mermaid Tavern 193 Oliver 162, 168
metals, rights in 140–3 Ophelia 151, 154
Milton, John 188 Oresteia 101–4, 105–6, 108, 116–17
Eikonoclastes 189, 191 Orestes 102–3
mining Orlando 162, 168
see also Case of Mines Orpheus 215
terminology 147–51 Oswald 164
value distinctions 140–4 Othello 11, 15, 16, 47, 183
Molière, Don Juan 274 Ovid, Metamorphoses 153, 157
monarch see regicides; royal prerogative Owen, Thomas 28
Montague 57, 127
Montaigne Page, Anne 58, 60
De l’affection des pères aux enfants Pantaloon (commedia dell’arte) 273–4
166–72 Paris (character) 57, 125
Essais 19, 111, 230, 232, 234 Parolles 49
the Moor Parsons, T 285
in Bandello 224–6 partem pro toto principle 237, 239, 241,
More Cruel 226–9 247, 249, 250–1
moots, dramatic use 222 pastoral utopia 110–12
More Cruel see Tragédie Francaise d’un pater familias 127
More Cruel Paulina 178
More, Sir Thomas, Utopia 219 Pedro, Don 59
Mountjoy, Christopher 41, 42, 54, 55 Pepys, Samuel 192
Mountjoy, Marie 41–2, 54 Perdita 53, 58
Mowbray, Thomas 85 Perillus 161
Muldrew, C 26 Petruchio 43, 54
musicality 212–16 Philip II, of Spain 163
Philip and Mary, King and Queen 138, 140
Nashe, Thomas 1–2 Plato
Nazi ideologies 258, 261 The Laws 213
Neoplatonic humanism 216–17 Neoplatonic humanism 216–17
306 Index
on order 206 in Renaissance 175–7

Republic 164, 212–13 and retribution 179–84
Plautus 25 utilitarianism 177–9
Pleonexia 164 Puttenham, The Arte of English Poesie 189
Plowden, Edmund, Commentaries or
Reports 85, 89–92, 151 Queen v Northumberland see Case of
on Case of Mines 138, 140, 142–5, 156–7 Mines
‘Succession Treatise’ 144–5, 153 Queen’s Counsel 138, 140, 141
Plutarch, Lives 206 Quickly, Mistress 58
Poliakov, L 254 ‘quilful’ amount 143, 155
polis, and law 102–3, 105 Quiney, Elizabeth 59
Pollock, F 8 Quiney, Richard 62, 63
Polonius 146, 151, 159, 172, 182 Quiney, Shakespeare 63
Pompey Bum 177 Quiney, Thomas 45–6, 62–3
Popery, anti- 187–90
Popham, Sir John, Lord Chief Justice 27, Raffield, P 168–9
28, 180 Raleigh, Sir Walter 191
Porrex 169, 207–8 Rasperger, Christoph, Ducentae Paucorum
Porter 194–5 250
Porter, Henry, Two Angry Women of Ravasz, Bishop László 263–4
Abingdon 47 Rechsetzung 102
Portia vi, 12–13, 83–4, 99, 179, 277, 282, recusant Catholicism 193
291–2, 294 Reformation
and Marriage Code 290, 296–8 anti-Popery 187–90
portrait of 246 attitudes to Jews 255, 263–4
ring of 239–44 Elizabethan 189
and Testamentary Code 290, 295–6 statutes 187
Les Portugais Infortunés 224, 229–34 Regan 160, 163–4, 169
possession 86–7, 88, 89, 92 regicides 191–2, 194
poetics of 92–9 Reilly, T 161, 162
and seisin 98–9 retribution 179–84
Posthumus 47, 58 revenge motive 224–9
‘pound of flesh’ see under Shylock reversion 87–8, 89–92
Powder Plot see Gunpowder Plot Richard II 85–9, 92, 140
prerogative courts 205 Richard III 169
prerogative rights see royal prerogative Richardson, John 51–2
Priam 11 Riefer, M 76
Prince of Verona 119–25, 131–3 Roman canon law 209
printing technology 217 romance plays 101–17
Private Code 290, 291–2, 296, 297, 298 background 101
props see dramatic properties comedy of forgiveness 116–17
Prospero 15, 107–9, 110–17, 177 exclusion drama 113–16
Proteus 43 law and nature 109–10
Prynne, William 189 magic 107–9
Public Code 290, 293–5 Oresteia contrast 101–4
Pulzer, P 261, 262 pastoral utopia 110–12
Pund, R 129 rituality 104
punishment theory tragedy of law 105–7
Index 307
use of masque 112–13 Shakespeare, Susannah 61–2

Romeo 10, 11, 15, 57, 119, 130–1 Shakespeare, William
Rorty, R 275 alteration of will 45–6
Rosalind 14, 57, 162, 164–5 and anti-Semitism 256–7
Rose Theatre Trust 203, 205 family members see under Arden; Hall;
Rosencrantz 145–6, 149 Hart; Hathaway; Quiney
Ross, C 8 fascination with law v-vii
royal prerogative 138–41, 144–5 inheritance suit 171
see also Elizabeth, Queen as lawyer’s clerk 137
Coke on monarch’s power 205, 209–11, marriage 41, 51
212, 216 marriages in family 60–3
and common cause 151–7 religious affinities 193–4
king’s position in Hamlet 145–51 role in Mountjoy case 41–3, 49, 54
value distinctions 140–4 works:
Rutter, C 69 All’s Well That Ends Well 47, 49, 53
As You Like It 14, 15, 16, 57, 162,
Sackville, Thomas, The Tragedie of 164–5, 168, 171–2
Gorboduc 169, 207–8 The Comedy of Errors v, vii, 20–37
Sadler, Hamlet and Judith 45 as comment on cost/loss 34–7
Sadler, Judith 45 fatalism of 22–7
Safety of Inheritances 156 and legal pessimism 27–34
Said, E 198, 199 Coriolanus v, 105–7, 109, 113, 211
St German, Christopher, Doctor and Cymbeline 44, 47, 58, 101, 107, 211
Student 97, 98–9, 209, 212 Hamlet vi, 14, 15, 137–8, 159–60, 164,
Salarino 274 179
Salerio 238, 246 and Case of Mines 145–57
Salisbury, Lord 191 Henry IV Part 1 v
saltpetre 156 Henry IV Part 2 v
Sandells, Fulke 51–2 Henry V v, 179, 193, 194, 238
Saturninus, Emperor 204–5, 212, 214, 218 Henry VI Part 1 v, 52, 83
Saunders’ Case 137 Henry VI Part 2 v
Saunders, TJ 213 Henry VIII v, 187, 193
Schoenbaum, S 62 Julius Caesar 105, 106
Scroop, Lord 179 King Lear v, 10, 15, 16, 17, 43, 109,
Sebastian 111, 178 159–72
Sectus Empiricus 19 inheritance, missing trusts
seisin 98–9 166–72
livery of 241–4 role of theatre in 159–61
September 11th 187, 197–201 succession, legal traditions in
Serédi, Cardinal Jusztinian 263 161–5
Serjeant’s Inn 143 Love’s Labour’s Lost 43, 63
Shakespeare, Ann(e) see Hathaway, Ann(e) Macbeth 10, 15
Shakespeare, Edmund 61 and equivocation 194–6
Shakespeare, Gilbert 61 and Gunpowder Plot 192–3,
Shakespeare, Joan 45, 61 194–6
Shakespeare, John 60, 171 performances on ‘the Fifth’ 192
Shakespeare, Judith 45, 62 Measure for Measure v, vi, 44, 45, 47,
Shakespeare, Richard 45 49, 53, 60, 65–79, 126, 218
308 Index
Shakespeare, William (Continued) 74 93–5

Works (Continued) 87 95–9
see also Angelo; Isabella The Taming of the Shrew 43, 48–9,
adjudicative relationships 72–8 127
brother/sister relationship 69–72 The Tempest 14–15, 101, 107–17,
choices in 66–9 177–8
conclusions 78–9 Caliban 113–16
and punishment 176, 177–9 comedy of forgiveness 116–17
relationships in 65–6 magic in 107–9
scales in 244–5 masque 112–13
uncommitted acts 282 nature of law 109–12
The Merchant of Venice v, 8, 12, 83–5, Timon of Athens 11
99–100, 128, 171–2 Titus Andronicus 11, 16, 225, 227
see also Portia; Shylock and executive power 203–7
in Central and Eastern Europe, harmony in 212–16
post-1945 267–9 imperial government and common
dramatic properties in 237–9 law 207–12
invisible community in 283–5 and Troynovant 207, 216–20
and Jewish/Christian legalism Troilus and Cressida vii, 11, 14, 47
285–7 Twelfth Night vi, 179
legal ambiguity 222 The Two Gentlemen of Verona 43
legalistic codes in 290–8 Venus and Adonis 41
and popular constructions of the The Winter’s Tale v, 44, 49, 53, 58,
Jew 256–8, 269–70 101, 109, 177–8
and punishment 176, 178, 183 Shallow, Justice vi, 58
Venice of 273–6 Sharington v Strotton 97–8
The Merry Wives of Windsor v, 44, Shingleton, Katherine 44
58–60, 177 Shylock v, vi, 12–13, 14, 15, 169
A Midsummer Night’s Dream v, 11, appeal to law 83–4, 99–100
56 as character 257
Much Ado About Nothing 43, 49, 59, and commedia dell’arte 273–4
60 contract 128
Othello 13, 14, 47 conversion of 250–1, 293, 294
Pericles 101 exclusion 238–9
The Rape of Lucrece 31, 41 explanation of conduct 279–82
Richard II v, 85–9, 92, 145, 179 humanist sentiments 263, 270
Richard III 10, 193 and Jewish/Christian legalism 285–7
Romeo and Juliet 43, 119–33 ‘pound of flesh’ 12–13, 238, 241, 245–9,
absolute power v personal law 250–1
122–3 literality of 276–9
concept of mutiny 119–20, 124, preordained incumbencies 282–3, 285
127–31 and Private Code 290, 291–2, 296, 297,
figure of Prince 119–25, 131–3 298
marriage contract in 57, 125–7, significance of name 273n
128–9 waiver of interest 244
pater familias in 127 Sidney, Sir Philip 178–9
word play 129–32 Defence of Poesy 189, 207–8
Sonnets 16, 92–9 Silvia 43
Index 309
Simple, Peter 58 terrorism

Simpson, AWB 27, 96–7 and equivocation 185–6, 194–6
Sir Anthony Roper’s Case 210 Gunpowder Plot 180, 186–7, 190–6
Slade’s Case 27–30, 35 War on 197–202
slavery Testamentary Code 290, 295–6
black 224–9 theatre
status of slave 279–80 actor and advocate’s art vi
Slender, Abraham 58 definition of purpose 159–60, 164
Smith, Sir Thomas 216 dramatic properties 237–9
Sofer, A 250 exclusion drama 113–16
Sokol, BJ and M 8, 161 law as dramatic discourse 221–2
Solinus, Duke 22, 29–30, 35 moots, dramatic use 222
Sophocles, Oidipus tyrannos 271–2 Thersites 11
Southampton, Earl of 165, 168, 172 three witches 195–6
Sparke, Alice 170 Throckmerton v Tracy 89–92
specific performance 7–18 Thucydites 164
definition 7 Thurland, Thomas 139, 140, 144
emotional investment 12–14 Timon 10
monetary value 9–11 Tiszaeszlár 261
practice 8–9 Titania 11, 15–16
questionings 14–18 Titus Andronicus 207, 211, 212, 214,
specific investments 11–12 215–16, 219–20
Speed, John 194 dramatic discourse 221–2
Spenser, Edmund 9 Tolstoy, Leo 163
The Faerie Queen 20, 107, 188–9, 217, Tracey, Richard 89–92
219, 243 traditio 245
sponsalia 125–7 Tragédie Francaise d’un More Cruel
Statute of Frauds 1677 243 223–4
Statute Merchant 247 Tranjo 55
Statute of Uses 1536 96–7, 243 Transylvanian anti-Semitism 259–60
Stone, L 165 and Jewish emancipation 259–61
Stratford 1918–1945 262–6
Court of Record 41 post-1945 267–9
Peculiar 62 Treatise on the King’s Prerogative 138
Stuart, Henry 183 Trevor-Roper, H 165
Stuart, Mary, Queen of Scots 161, 190 Trinculo 115
succession Troilus 14
legal traditions 161–5 Trout, Katherine 45
state issue 144–5, 153, 156 Troynovant 207, 216–20
Suffolk, Duke of 52 The True Chronicle Historie of King Leir
Supremacy, Act of 161
1534 208, 209 Tudor, Mary, see also Elizabeth, Queen
1559 209–10 Tudor, Mary, Queen 163
synecdoche 221–2, 237, 239, 245, 249 Tybalt 125, 127, 131
Talion Law 224, 226 Uses, Statute of (1536) 96–7, 243

Les Terms de la Ley 19 utilitarianism 177–9
310 Index
vengeance motive The White Devil 47

Le More Cruel 224–9 Weisberg, R 249, 286–7
Les Portugais Infortunés 229–34 West, William, Symboleography 241, 247
Venice Wheeler, Margaret 45, 62–3
city of Merchant of Venice 273–6 William of Orange, Prince (latter William
Inquisition and ghetto 250 III) 192, 201
Venice, Duke of 275 Williams, Joshua 242
Vienna, Duke of 72–8, 177, 178, 179, 218 witches 195–6
Virgil Womack, P 9
Aeneid 206 women
Georgics 165 see also marriage contract
cases in consistory courts 46–50
Walmsley, Thomas 28, 32 Wood, M 256
Walsingham’s Case 89
Worcester, consistory court 41, 44
War on Terror 197–202
Ward, I 16
Warren, CT 242 York, Duke of 88–9
Webster, John al-Zawahiri, Ayman 197
The Devil’s Law Case 47, 243 Zizek, S 199

Shakespeare and The Law by Paul Raffield, Gary Watt

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

SHAKESPEARE AND THE LAW

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

Published in North America (US and Canada) by

© The editors and contributors severally 2008

Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW

British Library Cataloguing in Publication Data

Typeset by Columns Design Ltd, Reading

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

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

I. SHAKESPEARE, MONEY AND THE LAW OF CONTRACT 5

II. SHAKESPEARE, WOMEN AND THE LAW 39

III. SHAKESPEARE AND THE LAW OF LOVE 81

IV. JUSTICE AND THE ROYAL PREROGATIVE 135

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

V. VIOLENCE, THE STATE AND THE CITIZEN 173

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

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

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

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

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

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

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

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

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

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

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

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

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

Katrin Trüstedt, European University, Viadrina Frankfurt. Assistant Professor

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

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

PAUL RAFFIELD AND GARY WATT

HE PAPERS IN this collection were delivered at the conference on

2 Paul Raffield and Gary Watt

4 Paul Raffield and Gary Watt

Shakespeare, Money and the Law of

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

Shakespeare and Specific Performance 9

More glad than is

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

Thus much of this will make

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

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

Shakespeare and Specific Performance 11

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

After so many hours, lives, speeches spent,

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

Shakespeare and Specific Performance 13

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

Shakespeare and Specific Performance 15

And, like the baseless fabric of this vision,

Shakespeare and Specific Performance 17

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

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

HETHER IN THE moral philosophical terms of Aristotelian ethos

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

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

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

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

CAUSES AND ENDS: THE FATALISM OF THE

But longer did we not retain much hope,

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