(Constance Jordan, Karen Cunningham) The Law in Shakespeare (Early Modern Literature in History, 2007)

The Law in Shakespeare
Edited by
Constance Jordan and Karen Cunningham

Early Modern Literature in History
General Editors: Cedric C. Brown, Professor of English and Dean of the Faculty
of Arts and Humanities, University of Reading; Andrew Hadfield, Professor of
English, University of Sussex, Brighton
Advisory Board: Donna Hamilton, University of Maryland; Jean Howard,
University of Columbia; John Kerrigan, University of Cambridge; Richard
McCoy, CUNY; Sharon Achinstein, University of Oxford
Within the period 1520–1740 this series discusses many kinds of writing, both
within and outside the established canon. The volumes may employ different
theoretical perspectives, but they share an historical awareness and an interest in
seeing their texts in lively negotiation with their own and successive cultures.
Titles include:
Andrea Brady
ENGLISH FUNERARY ELEGY IN THE SEVENTEENTH CENTURY
Laws in Mourning
Jocelyn Catty
WRITING RAPE, WRITING WOMEN IN EARLY MODERN ENGLAND
Unbridled Speech
Dermot Cavanagh
LANGUAGE AND POLITICS IN THE SIXTEENTH-CENTURY HISTORY PLAY
Danielle Clarke and Elizabeth Clarke (editors)
“THIS DOUBLE VOICE”
Gendered Writing in Early Modern England
James Daybell (editor)
EARLY MODERN WOMEN’S LETTER-WRITING, 1450–1700
Jerome De Groot
ROYALIST IDENTITIES
John Dolan
POETIC OCCASION FROM MILTON TO WORDSWORTH
Tobias Döring
PERFORMANCES OF MOURNING IN SHAKESPEAREAN THEATRE AND EARLY
MODERN CULTURE
Sarah M. Dunnigan
EROS AND POETRY AT THE COURTS OF MARY QUEEN OF SCOTS AND
JAMES VI
Andrew Hadfield
SHAKESPEARE, SPENSER AND THE MATTER OF BRITAIN
William M. Hamlin
TRAGEDY AND SCEPTICISM IN SHAKESPEARE’S ENGLAND
Elizabeth Heale
AUTOBIOGRAPHY AND AUTHORSHIP IN RENAISSANCE VERSE
Chronicles of the Self
Constance Jordan and Karen Cunningham (editors)
THE LAW IN SHAKESPEARE
Claire Jowitt (editor)
PIRATES? THE POLITICS OF PLUNDER, 1550–1650
Pauline Kiernan
STAGING SHAKESPEARE AT THE NEW GLOBE
Arthur F. Marotti (editor)
CATHOLICISM AND ANTI-CATHOLICISM IN EARLY MODERN
ENGLISH TEXTS
Jean-Christopher Mayer
SHAKESPEARE’S HYBRID FAITH
History, Religion and the Stage
Jennifer Richards (editor)
EARLY MODERN CIVIL DISCOURSES
Sasha Roberts
READING SHAKESPEARE’S POEMS IN EARLY MODERN ENGLAND
Rosalind Smith
SONNETS AND THE ENGLISH WOMAN WRITER, 1560–1621
The Politics of Absence
Mark Thornton Burnett
CONSTRUCTING “MONSTERS” IN SHAKESPEAREAN DRAMA AND EARLY
MODERN CULTURE
MASTERS AND SERVANTS IN ENGLISH RENAISSANCE DRAMA AND CULTURE
Authority and Obedience
The series Early Modern Literature in History is published in association with

the Renaissance Texts Research Centre at the University of Reading.
Early Modern Literature in History

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The Law in Shakespeare
Edited by
Constance Jordan
and
Karen Cunningham
Selection and editorial matter © Constance Jordan and Karen Cunningham
2007; individual chapters © contributors 2007
All rights reserved. No reproduction, copy or transmission of this
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Library of Congress Cataloging-in-Publication Data
The law in Shakespeare / edited by Constance Jordan and Karen
Cunningham.
p. cm.
ISBN 1–4039–9214–2 (cloth)
1. Shakespeare, William, 1564–1616 – Knowledge – Law.
2. Law – Great Britain – History – 16th century. 3. Law – Great
Britain – History – 17th century. 4. Lawyers in literature. 5. Law in
literature. I. Jordan, Constance. II. Cunningham, Karen, 1946–
PR3028.L39 2007
822.3⬘3—dc22 2006049402
10 9 8 7 6 5 4 3 2 1
16 15 14 13 12 11 10 09 08 07
Printed and bound in Great Britain by
Antony Rowe Ltd, Chippenham and Eastbourne
Contents
Acknowledgments vii
Notes on Contributors viii
1 English Law in Shakespeare’s Plays 1

2 Drama, Law, and Rhetoric in the Age of Coke

and Shakespeare 20
Allen D. Boyer
3 The Wilde Side of Justice in Early Modern

England and Titus Andronicus 38
Dympna Callaghan and Chris R. Kyle
4 “Like to a Tenement”: Landholding, Leasing,

and Inheritance in Richard II 58
William O. Scott
5 Cast out of Eden: Property and Inheritance in

Shakespearean Drama 73
Nancy E. Wright and A. R. Buck
6 Avoiding the Issue of Fraud: 4, 5 Philip &

Mary c.8 (the Heiress Protection Statute),
Portia, and Desdemona 91
Charles Ross
7 Accomplished with What She Lacks: Law,

Equity, and Portia’s Con 109
Thomas C. Bilello
8 Drama and Marine Insurance in Shakespeare’s London 127

Luke Wilson
9 Noises Off: Participatory Justice in 2 Henry VI 143

Lorna Hutson
10 Truth, Lies, and the Law of Slander in

Much Ado About Nothing 167
Cyndia Susan Clegg
v
vi Contents
11 The “Amending Hand”: Hales v. Petit, Eyston v. Studd,

and Equitable Action in Hamlet 189
Carolyn Sale
12 Macbeth: Absolutism, the Ancient Constitution,

and the Aporia of Politics 208
Peter C. Herman
13 Arms and Laws in Shakespeare’s Coriolanus 233

Rebecca Lemon
14 Measure for Measure and the Law of Nature 249

Elizabeth Hanson
Index 266
Acknowledgments
Thomas C. Bilello’s “Accomplished with What She Lacks: Law, Equity,

and Portia’s Con” appeared originally in Law and Literature, 16:1 (Spring
2004), 11–32, copyright The Cardozo School of Law Yeshiva University.
A condensed version is reprinted here with permission. William O.
Scott’s “Landholding, Leasing and Inheritance in Richard II” appeared
originally in SEL: Studies in English Literature, 42:2 (Spring 2002), 275–92.
A condensed and updated version is printed here with permission.
vii
Notes on Contributors
Thomas C. Bilello is an attorney with Pacific Life Insurance Company

in Newport Beach, California, and specializes in insurance law and reg-
ulatory compliance. He received his BA from the University of
California, Los Angeles, his JD from Harvard Law School, and his MA in
English from the University of California, Irvine.
Allen D. Boyer is a lawyer in New York City. He serves on the advisory

board of the Yale Center for Parliamentary History and is the author of
Sir Edward Coke and the Elizabethan Age (2003), among other studies in
legal history.
A. R. Buck teaches law at Macquarie University, Australia. He is the

editor of the Australian Journal of Legal History. His recent publications
include the coedited books The Poor Man: Law and Satire in Nineteenth
Century New South Wales (2005) with Nancy E. Wright, and Women,
Property, and the Letters of the Law in Early Modern England (2004) with
Nancy E. Wright and Margaret W. Ferguson.
Dympna Callaghan, Dean’s Professor in the Humanities at Syracuse

University, is the author of more than thirty articles and seven book-
length publications, including monographs and edited collections. She
has been a visiting professor for the British Academy and has held fel-
lowships at the Getty Research Center, Clare Hall Cambridge, the Folger
Shakespeare Library, the Newberry Library, Hughes Hall Cambridge, and
the Huntington Library.
Cyndia Susan Clegg, Distinguished Professor of English at Pepperdine

University, has published articles on Shakespeare in Shakespeare
Quarterly, the Ben Jonson Journal, and Blackwell Shakespeare companion
volumes. Her books include The Peaceable and Prosperous Regiment of
Blessed Queene Elizabeth (2005), Press Censorship in Jacobean England
(2002), and Press Censorship in Elizabethan England (1997). She has
published several articles on print culture as well.
Karen Cunningham is a lecturer in Shakespeare and Early English

Literature at the University of California at Los Angeles. Her articles
have appeared in Publications of the Modern Language Association,
Shakespeare Quarterly, Exemplaria, Journal of Medieval and Renaissance
viii
Notes on Contributors ix
Studies, Renaissance Drama, and the Blackwell Shakespeare companion

volumes. She is the author of Imaginary Betrayals: Subjectivity and the
Discourses of Treason in Early Modern England (2002).
Elizabeth Hanson is Associate Professor of English at Queen’s

University, Canada. She is the author of Discovering the Subject in
Renaissance England (1998) as well as articles on the literature and
culture of early modern England.
Peter C. Herman is Professor of English and Comparative Literature at

San Diego State University. He has published two books, Destabilizing
Milton: “Paradise Lost” and the Poetics of Incertitude (2005) and Squitter-wits
and Muse-haters: Sidney, Spenser, Milton and Renaissance Antipoetic Sentiment
(1996), and has edited a number of anthologies, including Approaches to
Teaching Milton’s Shorter Poetry and Prose (forthcoming), Historicizing
Theory (2004), and Reading Monarchs Writing: The Poetry of Henry VIII,
Mary, Queen of Scots, Elizabeth I, and James VI/I (2002). His essays have
appeared in such journals as Renaissance Quarterly, Studies in English
Literature, and Criticism. The essay in this volume is part of a larger
project on the Ancient Constitution and early modern literature.
Lorna Hutson is Berry Professor of English Literature at the University

of St. Andrews, Scotland. She is the coeditor, with Victoria Kahn, of
Rhetoric and Law in Early Modern Europe (2001) and is currently working
on a book entitled The Invention of Suspicion: Forensic Realism in
Renaissance Drama.
Constance Jordan is Professor Emeritus of English at Claremont

Graduate University. She is the author of Renaissance Feminism: Literary
Texts and Political Models (1990) and Shakespeare’s Monarchies (1997). She
is a coeditor of The Longman Anthology of British Literature (2000, 2003,
2006).
Chris R. Kyle is Associate Professor of Humanities in the History

Department at Syracuse University, where he teaches history and law.
He is the author of Theatre of State (forthcoming), is editing two parlia-
mentary diaries of 1593 and 1626 for publication, and has recently
published two books on early modern parliaments. He has held fellow-
ships at the Huntington Library and is the American editor of
Parliamentary History.
Rebecca Lemon, Associate Professor of English at the University of

Southern California, is the author of Treason by Words: Literature, Law
and Rebellion in Shakespeare’s England (2006). Her articles have appeared
x Notes on Contributors
in Theatre Journal, Studies in English Literature, The Huntington Library

Quarterly, Women and Culture at the Courts of the Stuart Queens, edited by
Clare McManus (2003), and New Critical Essays on “Macbeth,” edited by
Nick Moschovakis (2006).
Charles Ross is Professor of English and Chair of the Program of

Comparative Literature at Purdue University. His most recent books are
a translation of Statius’s Thebaid (2004) and Elizabethan Literature and the
Law of Fraudulent Conveyance: Sidney, Spenser, Shakespeare (2003). He is
also the author of The Custom of the Castle from Malory to Macbeth (1997)
and a translation of Boiardo’s Orlando Innamorato (1989; rev. 2004).
A graduate of Harvard College, he received his PhD degree from the
University of Chicago and a JD degree from the evening division of
the Indiana University at Indianapolis School of Law.
Carolyn Sale is Assistant Professor of English Literature at the

University of Alberta, Canada. Her recent publications include
“The ‘Roman Hand’: Women, Writing and the Law in Att.-Gen v.
Chatterton and the Letters of Lady Arabella Stuart,” in English Literary
History, and “Slanderous Aesthetics and the Woman Writer: The Case of
Hole v. White,” 2005 in Redefining British Theatre History, edited by Peter
Holland and Stephen Orgel. She is currently working on a book entitled
Contested Acts: Legal Performances and Literary Authority in Early Modern
England.
William O. Scott is Professor of English at the University of Kansas. His

publications on legal topics in Shakespeare include essays on King Lear,
The Merchant of Venice, and As You Like It.
Luke Wilson is Associate Professor of English at Ohio State University.

He is the author of Theaters of Intention: Drama and the Law in Early
Modern England (2002) and of articles on Shakespeare, Webster,
Chapman, and Bacon. He is currently working on a book on legal
jurisdiction and literary authority.
Nancy E. Wright is Professor of Humanities and Languages at the

University of Western Sidney, New South Wales, Australia. Her recent
publications include the coedited books The Poor Man: Law and Satire in
Nineteenth Century New South Wales (2005) with A. R. Buck, and Women,
Property, and the Letters of the Law in Early Modern England (2004) with
A. R. Buck and Margaret W. Ferguson.
1
English Law in Shakespeare’s
Plays
The essays in this collection proceed from a common assumption: that

Shakespeare’s plays reproduce and refashion contemporary ideas of
established law, both common and civil, and its penumbral reflections
in custom, morals, and political thought. Shakespeare gives us many
kinds of cues: Dick the Butcher’s famous battle cry in 2 Henry VI (1597),
“The first thing we do, let’s kill all the lawyers,”1 warns us to attend to
the law’s discriminations of rank and class; the trial of Shylock in The
Merchant of Venice (1596) moves us to assess English ideas of equity; and
the peculiar magistracy of Angelo in Measure for Measure (1604) prompts
us to find precedents to critique law’s literalism, its reliance on the letter.
Like the law courts, Shakespeare’s theater was a place of trial and testing,
and law, like theater, relied on narratives that posited and analyzed
conceptions of motive, character, intention, and origin.
Both complex and complementary, these literary and legal narratives
drew on established as well as emerging principles of social organiza-
tion. Refusing to sever legal from other social and political practices, the
theater represented law in competition with other institutions to settle
matters of class, gender, and the power and authority of the kingdom’s
various offices. The discourses of law embraced the rhetoric and oratory
of the stage and sought to convince judge and jury by using the arts of
persuasion. Typically, the characters of drama inhabited a multivocal
world, rich with noises that gave delight and hurt not. The worlds cre-
ated by legal discourses were comparably saturated with conflict and
dissonance, by agreement and harmony. Statutes are contradicted by
proclamations, which in turn are contradicted by judges of individual
cases, who in turn may be contradicted by a jury resisting a judge’s view.
A recalcitrant defendant might subvert the whole process. Case law
might corroborate or gainsay written law; precedents might be invoked,
1
2 Constance Jordan and Karen Cunningham
disputed, and found irrelevant. Stanley Fish has remarked that the “law
wishes to have a formal existence,” to be a self-contained, organic thing
that does not need supplemental explanation.2 Yet within itself and in
its relations to other discourses, including the theatrical, early modern
English law was vitally contentious and constantly evolving.
The essays collected here represent heterogeneous voices in the long-
established and recently reinvigorated field of the law in Shakespeare.
There are many ways to organize such a collection, each with its own
strengths and limitations. Rather than focusing on a single kind of law,
such as marriage or treason, or on a narrow group of Shakespeare’s plays,
or a single genre, this collection highlights the eclectic in both the legal
and the literary territories that the authors explore. The essays that fol-
low include the voices not only of professional academics but also of
professionals at law. They study a spectrum of legal issues, ranging from
questions of property, equity, and fraud to those of the sovereign’s pre-
rogative. And they interrogate a range of Shakespeare’s plays, from the
early comedies through the late tragedies. Contributors were not asked
to adhere to a particular theoretical or methodological agenda about the
theater or the law. The result is a diverse collection in which each essay
has its own specific focus and idiolect. What unites them is their focus on
the plays of Shakespeare and the legal discourses (official and unofficial)
of early modern England.
Official discourses of law emanating from parliamentary statute and
the courts of common law and equity were designed to persuade sub-
jects of the justice of the nation’s legal system, and it is precisely this
subject of equity upon which much of the scholarship on Shakespeare
turns. Progressive theorists tried to resolve differences and close gaps
between the letter of the law (the lex of Roman law) and the justice (or
ius) it sought to realize. The interpretation of the letter of the law was
fundamental to this end; in practice, however, mere literalism proved
frustrating. The concept of justice repeatedly opened up to contingent
pressures and reflected current political and economic interests. Those
who interpreted the law, both professionally and as a matter of civic inter-
est, drew on ideas of honor, fairness, and traditions of community life
that spoke to social practices that while not strictly legal had the power to
compel attention and performance. The idea of equity – especially as
expressed by civil lawyers such as Christopher St. German, in his
Dialogues in English between a Doctor of Divinity and a Student in the Laws
of England (published continuously from 1543), and Edmund Plowden,
in his Commentaries ou reportes (1571, 1579) – addressed a pervasive
difficulty: the application of a general rule to a particular case. The letter,
English Law in Shakespeare’s Plays 3
it was obvious, did not always fit the situation it was supposed to cover.
Responding to such disjunction, equity courts, like the consistory courts
designed to remedy special grievances and the prestigious Star Chamber
created to give speedy relief to litigants, paid attention to claims of
conscience. Increasingly, the common law courts also heard arguments
reflecting equitable principles. In any case, lawyers both civil and com-
mon sought to persuade their courts by exploiting the arts of rhetoric.
To persuade was also to clarify, to establish, and to justify how a decision
might or ought to be rendered in a given instance. Rhetoric, taught in the
schools, illustrated the illocutionary functions of language;3 its practices
made vital to an understanding of the law “the common opinion of the
multitude, old customs, ancient fashions, or any such like.”4
Literary criticism on law in Shakespeare’s plays has represented, in the
first instance, those aspects of Tudor and Stuart life that were affected by
the law in one way or another and that find obvious illustration in the
plays. Studies of the terms and conditions in which English subjects expe-
rienced contracts, dealt with rights to property, undertook to observe the
privileges and constraints of marriage, and, perhaps most conspicuously,
obeyed the power of the sovereign have recognized their representation
in the plays.5 Virtually no English subject was free from one or another tie
to property, whether they possessed it in some measure, however small, or
did not possess it at all, at least licitly. Real property, whose terms effec-
tively dictated a range of social relations, was especially important: it was
either corporeal, consisting of land, or incorporeal, often expressed as a
right to a use (as in grazing, foraging, and collecting fuel) on land that was
not the user’s property.6 Equally important were the obligations that real
property solicited and the rights it conferred, considered as various kinds
of tenure.7 A magisterial study by Paul S. Clarkson and Clyde T. Warren,
The Law of Property in Shakespeare and Elizabethan Drama (1942), details
Shakespeare’s extensive references to all kinds of property and analyzes
the dramatic conflicts in which they appear.8 In cases involving disputes,
ordinary subjects were often caught in currents directed to two grand
public ends: first, to maintain a stable society ensured by the uncontested
transfer of land from one generation to the next, and, second, to promote
the commonwealth. Nor was their interest merely theoretical. As Patrick
Collinson has observed, the “middling sort” regularly served as “the bot-
tom line of early modern government” in small towns and villages.9
Shakespeare’s various constables and magistrates, his Dogberry and his
Escalus, are not entirely fantastic figures.
The interpretation of evidence in criminal cases was the task of a jury,
and Shakespeare’s representation of law throughout the plays is informed
by this popular agency, although it may not be directly dramatized.10

Evidence was routinely open to question, and it was understood that even
well-intentioned witnesses could be mistaken about the act on which
they reported. At trial, the prosecution’s task was to limit the meanings of
evidence in order to fit it to a narrative of guilt. The defendant attempted,
in turn, to offer alternative interpretations in order to demonstrate the
weakness of the evidence. The procedure of a criminal inquest – “Enquest
is that inquiry which is made by Jurors in all causes civill or criminall
touching the matter of fact”11 – as reported by Sir Thomas Smith, indi-
cates not only how the facts of a case were adduced but also how
Shakespeare’s fellow subjects participated in the performance of justice.
Smith’s typical judge opens an inquest by stating the reason for it:
One of the judges briefly telleth the cause of their coming, and giveth
a good lesson to the people. Then the prisoners are called for by
name, and bidden to answer to their names. If [they] plead not guilty,
as commonly all thieves, robbers and murderers do, though they
have confessed the fact before the Justice of the Peace that examined
them, though they be taken with the manner which in Latin they call
in flagranti crimine [in the act of committing the crime], howsoever it
be, if he [a prisoner] plead there not guilty, the clerk asketh him how
he will be tried. And telleth him he must say, by God and the coun-
try, for these be the words formal of this trial after indictment and
where the prince is party.12
The accused then participates in the selection of the jury, choosing

among “the honest men that be come in the place and stead of
the country. . . . The clerk calleth the first juror. . . . If the prisoner [i.e.
the accused] objecteth nothing against him, he calleth another, till there
be twelve or above.”13 Having heard the evidence, the jury is
sequestered; it can hear again any of the evidence presented at trial. As
critics have noted, a procedure that allows the accused to lodge peremp-
tory challenges against prospective jurors conveys how the experience
of an inquest (or trial) can have a dramatic character and suggests why
the public can on occasion witness inquests or trials as virtual “morality
plays.”14 Smith concludes by celebrating English jury-based justice as
opposed to continental agencies of the law by stressing its universal
appeal: “all men may hear what is said.”
This is to be understood, although it will seem strange to all nations

that do use the civil law of the Roman emperors, that for life and
death there is nothing put in writing but the indictment only. All the
rest is done openly in the presence of the judges, the justices, the
quest, the prisoner, and so many as will or can come so near as to
hear it, and all depositions and witnesses given aloud, that all
men may hear from the mouth of the depositors and witnesses
what is said.15
Criticism of law in Shakespeare has done more than account for refer-
ences to legal topics, cases, and procedures in the plays, however; it has
also reflected developments in the methods of literary criticism gener-
ally. Building on detailed accounts of Shakespeare’s legal language and
references by Edward J. White in his Commentaries on the Law in
Shakespeare (1913) and Sir Dunbar Plunket Barton in Links Between
Shakespeare and the Law (1929), later criticism has increasingly focused
on Shakespeare’s apparent commitment to ambiguity, his unwillingness
to resolve the legal issues in the plays by reducing them to neat points
of law. Promoted by an interest in nonscripted natural law and acknowl-
edging the power yet also the indeterminacy of ideas of reason, what it
was and how it functioned, critics have sought to understand how
Shakespeare’s contemporaries interpreted authorities in the law who
announced dicta that posed further questions. St. German, for example,
who stated that positive law was always trumped by natural and eternal
(divine) law – “against this law, prescription, statute, nor custom may
not prevail” – invited the reader to identify in what those laws consisted.
Edward Coke seconded St. German when he observed that a statute that
conflicted with the dictates of reason could not prevail, for “the
Common Law is the perfection of reason.”16 But how to define natural
law; how to know reason? The words of the fifteenth-century lawyer
Sir John Fortescue, citing Romans 13.1 – “since the Apostle says ‘All
power is from the Lord God’, laws established by man, who receives
power to this end from God, are also formulated by God” – might have
given the doubtful some comfort, but not much certainty.17 Does the
Apostle mean all laws, even those instituted by the words of a tyrant? So,
apparently, thought the authors of the homilies enjoining subjects to
obey duly instituted authority. So also thought James I when he wrote
The Trew Law of Free Monarchies (1598). Correspondingly, however, con-
stitutionalists regularly denied the tyrant any legitimacy. Theorists as
moderate as Smith would locate the sovereign in the king in Parliament:
The most high and absolute power of the realm of England is in the
Parliament. . . . And upon mature deliberation, every bill or law being
thrice read and disputed upon in either house . . . the Prince himself
in presence of both parties doeth consent unto and alloweth. That is
the Prince’s and whole realm’s deed: whereupon justly no man can
complain, but must accommodate himself to find it good and obey it.
And to be short, all that ever the people of Rome might do either in
Centuriatis comitiis or tributis, the same may be done by the
Parliament of England, which representeth and hath the power of the
whole realm both the head and the body. For every Englishman is
intended to be there present, either in person or by procuration and
attorneys, of what preeminence, state, dignity, or quality soever he
be, from the Prince (be he King or Queen) to the lowest person of
England. And the consent of the Parliament is taken to be every mans
consent.18
Shakespeare’s open-ended conflicts, his apparently deliberate refusal

to resolve the quandaries he posed, illustrate the difficulties raised by
views as divergent as those of Smith and James I. Criticism has accord-
ingly acknowledged how the representation of a particular conflict,
dramatizing outcomes that might have been but did not in fact result,
could provoke a critic to imagine his or her own solution. O. Hood
Phillips, relating how Sir Frederick Pollock had decided Shylock’s case –
“Declare the bond void at law, involving as it does consent to be
maimed. (There is no question of equity in the technical sense.)
Judgment for the plaintiff for 3000 ducats, and interest at the current
rate, as on a simple contract debt” – speculates on what Venetian law
might have required of the debtor Antonio, allowing, as it did, for for-
feiture of bodily parts were the terms of a contract not met.19 Raising
other comparable questions, the law in Shakespeare has often appeared
to be a series of pretexts designed to test the wit of audiences, much as
the moots rehearsed for students at the Inns of Court were intended to
instruct them in fashioning artful argument.20
More broadly, literary criticism on the law in Shakespeare’s plays has
focused on the work of the imagination in constituting the subjects and
how Shakespeare represents them. James Boyd White’s The Legal
Imagination (1985) identifies the hermeneutics at work in understanding
law generally; Richard Weisberg makes the case for reading literature
that deals with law because it contributes to what law can embrace as
“ethical awareness.”21 Critics have recognized that Shakespeare’s plays
compel the imagination to find solutions, however provisional, to the
problems they pose; these critics have read the law in the plays as elusive
and yet also ubiquitous. The more expansive the perspective that critics
take, the more generously they understand the function of law as

paradoxical, as constructing (as Paul Kahn puts it) a “community
beyond law.”22 Thus, in Kahn’s words, “the legal imagination does
understand the ‘other’ against which it builds its world as this
Hobbesian state of nature, but it also understands the world beyond law
as one of revolution and of love.” On this account, “the culture of law’s
rule” can be understood to build our relations to nature, to allow for
change, and to create new communities.23
Particular registers of law appear in Shakespeare’s representation of
the body politic, the commonwealth, and the monarchy, and it is fair to
say that in these registers critics have recognized that Shakespeare’s legal
imagination has worked to produce political fictions.24 Like the plays
dramatizing issues involving usual actions in common and civil law,
plays focusing on politics are structured on “incompatible principles”:
the divine right of kings and the natural rights of subjects; the
monarch’s responsibility to maintain the commonwealth, especially in
times of war, and the citizen’s obligation to resist authority that contra-
venes divine or natural law. To mend this incompatibility there is no law
per se; rather, there is conscientious reflection producing acts of
courage, escape, and deceit.25 The English history plays, especially the
second tetralogy, are further complicated by historical difference; in a
sense they play cards with two decks. Historically, medieval kings had
much greater latitude than did sixteenth-century kings; Shakespeare’s
medieval kings, while constrained through plot by the events of history
as recorded in chronicle, can be understood to work anachronistically,
constrained by the terms of Tudor constitutionalism, however much
they are also energized by the prospect of their own absolute rule.26
Anachronism and the uncertainties it creates have prompted critics to
entertain questions of legitimacy as Shakespeare poses them in order to
ask other questions that are more immediate: is Henry IV a legitimate
monarch? Where do we rest our acceptance of a law as legitimate? Can we
do better than search our “political imagination?”27 To know how that
imagination works becomes a matter for the individual critic. If the texts
of the plays are transparent entities, windows on preexistent worlds
whose features are both obvious and unchanging over time, then inter-
pretation becomes transcription. But this glassy stasis is not what the
critic can be said realistically to encounter; rather, he or she confronts lan-
guage, a text to be interpreted. Summarizing the work of Terence Hawkes,
Ward declares: “Shakespeare doesn’t mean: we mean by Shakespeare.”28
This claim finds support in the work of “alternative Shakespeareans” who,
in 1985, contributed to criticism that identified itself as “reading,” though
not the kind of reading that represents “itself as an exclusive effect of the
text” but rather as an effect of the reader’s cultural milieu, its historical,
social, and philosophical determinants.29 This kind of self-consciousness
has made possible a criticism that takes account of and often explicitly
states the assumptions upon which its representations are based. It sees a
benefit in the ambiguities of its textual politics because, like the moots of
Tudor Inns of Court, these politics encourage debate.30
Archival research has provided essential information about how
Shakespeare and his contemporaries experienced the public force of the
law in their daily lives, a force that obtained prior to any particular
instance of its exercise, and critics have reflected this history.31 Subjects
of Elizabeth and James VI/I, mindful that law guaranteed the power and
authority of the state, understood that its objectives were public. They
agreed that the “wilde justice”32 of aggrieved and vengeful subjects,
unchecked by positive law and responsible magistrates, doomed a soci-
ety to uncivil savagery. The law of God was not a law that permitted
revenge: God protected the murderous Cain by setting a mark on him
“lest any finding him should kill him.” And Paul instructed his readers
to “give place unto wrath” for the Lord said: “Vengeance is mine.” The
divine “I” echoed in scripture was for practical purposes vested in insti-
tutions of the state dedicated to preserving the social order. To a noble
subject, of course, revenge could seem a right and its cooptation by the
state an action of trespass on traditional prerogatives, and in effect an
injustice. Despite (or perhaps because of) these differences, early modern
theorists of jurisprudence continued to seek corroboration from inspired
accounts of the law. It is hard to imagine a more exalted defense of
English law than Fortescue’s Learned Commendation of the Politike Laws of
England (1573), which discusses criminal law.
[I]t is also necessary to discuss how in matters criminal the laws of

England do fetch out the truth. . . . If any man accused of felony or trea-
son in England do at his arraignment before the same judges deny the
offence, forthwith the Sheriff of the County, where the deed was done,
shall cause to come before the same Judges four and twenty good and
lawful men dwelling nigh to the village, where the fact was done, such
men as to the party accused by no thing allied . . . to certify the judges
upon the truth of the crime. Which at their appearance the party
accused . . . in favor of his life may challenge five and thirty men such
as he most feareth; which upon his challenge shall be canceled in the
panel; or shall be noted with such marks that they shall not pass upon
him; though he be not able to show any cause of his exception and
challenge. Who then can unjustly die in England for any criminal
offence, seeing he may have so many helps for the favor of his life, and
that none may condemn him but his neighbors, good and lawful men,
against whom he hath no matter of exception. Indeed I would rather
that twenty evil doers to escape death through pity then one man to be
unjustly condemned. And yet it is not to be suspected, that any
offender can under this form escape the punishment of his offence,
forasmuch as his life and conversation shall be afterward a terror to
them that have thus cleared him of the crime. In this kind of proceed-
ing there is no cruelty or extremity used. Neither can the innocent and
unguilty person be hurt in his body or limbs. Wherefore he shall not
stand in fear of the slander of his enemies, because he shall not be
racked or tormented at their will and pleasure. Thus under this law a
man may pass his life with quietness and safety.33
Admittedly, Fortescue’s description is idealistic, and to Shakespeare’s

contemporaries it may well have appeared out of date. Despite
Fortescue’s claim that “there is no cruelty or extremity used” in criminal
actions, assorted kinds of social, political, and physical violence and tor-
ture were often included at various stages of sixteenth-century criminal
process.34 Yet what is important here is that Fortescue has created a sus-
tained discourse of what we might call (borrowing from Fredric
Jameson) an imaginary of a legal ideal:35 an imaginary that declares that
principles of justice and humanity are essential in shaping civil society.
Critics have drawn on the records of other voices – those of authors of
broadsides, of ballads, and of plays – who took exception to this ideal,
greeting it with skepticism and an interrogative spirit, and substituting
their own imaginary. Some of these authors drew on Raphael
Holinshed’s Chronicles of England, Ireland, and Scotland (1587), yearbooks
from the Inns of Court, and reports of lawyers such as Plowden and Coke
(continuously published from 1600 to 1614). The history of theatrical
performances, difficult to retrieve but nonetheless registered in casual
conversations, “tavern cases” argued in pubs, and moot courts performed
in the law schools together illustrate a dialogue between the goals of an
ideal justice and the practical exigencies of applied law, between honor-
ing the spirit of the law and pursuing admittedly self-interested ends.
* * *
The essays in this volume take their place in the criticism of law
in Shakespeare, both mirroring and contesting its most important
assumptions and practices. Reflecting the cultural turn in early modern

studies, these essays regard the law as one text among others, comprising
culturally specific meanings and having no prior claim to superior
authority. As Allen D. Boyer shows, rhetorical training was as much at
the foundation of legal education as an acquaintance with texts of
statute and common law. An attorney himself, Boyer finds that
rhetoric’s power to give meaning to the words of an argument through
figures of speech shaped early modern legal discourse in England. The
education of lawyers at the Inns of Court involved participating in dis-
putes or controversiae argued by way of exempla, instances, illustrations,
and cases; these in turn proved their point by inventio, the discovery and
capture of effective figures. Exemplifying the results of such training,
chief justice Coke distinguished “natural reason,” a human property,
from the “artificial perfection of reason,” an attribute of the lawyer and
the result of his training in the arts of language and argument. Coke was
correct in showing that the lawyer’s speech was not like that of his fel-
low subjects untrained in law, however exalted their status. Rather, it
was pointed, contrived, and indeed artful. Playwrights had a comparable
view of the role of the language of the stage, where the logic supporting
a character’s case or a position had to be measured in the music of fig-
ures of speech and style to capture and hold the attention of audiences.
Dympna Callaghan and Chris R. Kyle refer to a world without law and
troubled by revenge, what Francis Bacon called “wilde justice.” Ideally,
the power of the state prevented punishments that were entirely per-
sonal in nature. But, as the action of Titus Andronicus (1590) reveals,
when the state failed to take charge, “wilde justice” flourished in a hor-
rible way. The situation it dramatizes is not, however, very unlike the
situation of a person whom the early modern state perceived as its
enemy, despite the norms that justice was supposed to observe. Such
enemies, men and some women, were marked, maimed, and mutilated
in the process of being tortured. Many suffered martyrdom. Callaghan
and Kyle suggest that the anarchy concluding Titus Andronicus consti-
tuted a warning. “Getting even” involved distinguishing justice from
extrajudicial vengeance, a distinction that in practice eluded officers of
the state.
While English lawyers referred to the English subject as categorically
different from the servile subject of a foreign prince because he enjoyed
a liberty under the law, William O. Scott reveals how Shakespeare’s
Richard II (1595) illustrates the actual harms to property and self that the
subject may suffer when the king abuses his rights as sovereign. By
delegating the obligations of his stewardship of the realm and its
property to favorites and tenants turned fee and rent collectors, Richard
created a “waste” of resources that the crown should have used to govern
and sustain the people. In this essay, which is reprinted here in a con-
densed and updated form, Scott identifies the king’s behavior with
“absolutism,” a theory of rule in which the monarch is above positive
law; constrained only by divine and natural law, he is virtually free to do
what he likes, the common law and the imposing power of Parliament
notwithstanding. Bolingbroke’s resistance to the king fits a constitu-
tionalism only fully articulated after the accession of James I, but already
adumbrated in Fortescue’s Commendation. As a theory of rule, constitu-
tionalism stipulated a sharing of power between subjects and monarch,
and a fully coordinated body politic in which each part is reserved for a
particular function. Once thwarted, the integrity of the kingdom is in
jeopardy.
Also interrogating Shakespeare’s fictional representation of property
relations, Nancy E. Wright and A. R. Buck read 2 Henry VI to confirm
that private property and a “law of nature” promoting self-interest were
considered necessary consequences of the Fall. (These ideas opposed the
important mythoi of the paradisal garden and the locus amoenus, both
suggestive of a property-less world in which all was “common.”)
Inviting belief in a perfectly congenial community constituted to mirror
the amenities of the golden age, Sir Alexander Iden masks his real inter-
est in securing exclusively private rights to property and ensures the
prosecution of trespass by rebels such as Jack Cade. In As You Like It
(1599), Duke Senior’s representation of a locus amoenus serves a congen-
ial end, admitting a notion of “common” that is predicated on a prior
commitment to an ideal community. The economic advantages to
poor tenants of property rights held in common, often to a use, were
considerable: the disappearance of common lands by enclosure and in
some cases their disafforestation were much debated. To the real hard-
ships that ensued, the action in Shakespeare’s Forest of Arden illustrates
a corrective: when Oliver promises his younger brother Orlando the
property he has inherited from his father, a community interest
overcomes self-interest.
Examining the action of conveyance as it is dramatized in Othello
(1602–04) and The Merchant of Venice, Charles Ross considers transfers of
property associated with marriage arrangements; those that might have
been entered into but for an elopement were known for being suscepti-
ble to fraud. Marriageable property (the woman) and marital property
(what she would bring to a properly arranged marriage) could easily be
fraudulently conveyed. In Othello, Desdemona’s abduction defrauds her
father Brabantio, her secrecy in the matter of the handkerchief defrauds

Othello, and Othello’s suicide defrauds Venice of his execution for mur-
der. These actions speak to the most common characteristics of fraudulent
conveyance: property owed to creditors is conveyed out of their reach,
and property paid for by one party is passed to another who has taken
title. In The Merchant of Venice, Portia commits fraud more than once
and of more than one kind. When she claims property that is her hus-
band’s under the terms of her father’s will, she behaves as if this property
is hers. Assuming proprietorship of it, she conveys it away from him and
to herself. This is a fraud clearly associated with a reasonable self-interest:
Portia wants to inform Bassanio that although she has been traded as
chattel, she is actually a person.
Any survey of the scholarship of law in Shakespeare reveals that
The Merchant of Venice is a central text. Touched on by Ross in terms of
fraudulent conveyances, it is also the subject of essays by Thomas C.
Bilello and Luke Wilson. Bilello, a practicing attorney, opens his inter-
pretation of the court’s judgment in the play by observing that Portia
fraudulently assumes judicial authority; she is neither a lawyer nor a
judge by training or license. Indeed, her interest in punishing Shylock
forestalls the kind of unbiased justice Fortescue had celebrated. Equity, a
concept designed to match the letter of the law to the situation it is sup-
posed to address, is not a subject that the play represents. English equity
courts provided relief to debtors faced with rigorous rulings in common
law courts, and there was a precedent for deferring payment of a debt in
Umfraville v. Lonstede, a case decided in the fourteenth century. But
Portia and the Venetian court do not consider the remedy in Umfraville
and rather support Shylock’s demand for payment of the full penalty – a
demand that then renders Shylock a criminal within the Venetian state
under the alien statute. By comparison to the rulings of English equity
courts, which took account of particular hardships, Bilello shows that
Portia’s justice is little better than a sophisticated form of revenge and
the court itself a forum for vengeance.
The widespread use of marine insurance in Shakespeare’s day invites
Luke Wilson to ask why Antonio, the merchant of The Merchant of
Venice, does not insure his fleet. Marine insurance, widely issued in
Shakespeare’s era, was a reminder of risk and also of ways to mitigate its
worst effects. Does Antonio fail to grasp the concept of probability that
underlies the experience of risk; does he not ask whether an event is
more or less likely to occur? Does the risk he faces as a result of this failure
prompt his “sadness,” a misery before the fact of loss? Wilson answers
these questions by pointing to the structurally crucial absence of insurance
as the enabling condition of the play. In the play as a whole, law – the
institution that makes insurance a fact of commerce – functions as an
absent presence: first, as suppressed at the level of plot (by Antonio’s
uninsured fleet) and, second, as occluded at the level of character (by
Portia’s indifference to or ignorance of the law she could have practiced).
Portia’s final claim, never proved, that Antonio’s fleet is in fact safe, cov-
ers the first of these absences by making up for what insurance would
have guaranteed. Wilson suggests that the play resolves Antonio’s failure
to recognize risk and his sadness by the introduction of a generic norm:
comedy provides him and the audience with a kind of compensation.
Refuting the tradition of identifying early modern legal processes with
decisions of official court figures, Lorna Hutson argues for an emerging
sense of “participatory justice” of the kind Smith described in
Shakespeare’s treatment of evidence in 2 Henry VI. This justice depended
upon the collection of evidence rendered to the court by the testimony
of witnesses who, expecting to be interrogated, needed to have “forensic
or detective habits of mind.” English juries were drawn from the com-
munity in which the accused was to be tried; they were apprised of
information collected from local sources. Hutson questions whether
their participatory justice has a negative aspect: massed together, even in
the interest of preserving justice, a community, any community, could
obviously threaten the peace. Shakespeare shows that the “commons” of
2 Henry VI who demand evidence by which to bring Duke Humphrey’s
murderer to justice can sting like bees; however, without their buzzing,
betokening a lethal force, justice might not be realized at all.
Slander is at the center of Cyndia Susan Clegg’s contribution, which
shows how the mistakes of witnesses color the quasi-judicial procedures
in Much Ado About Nothing (1598–99) and taint an innocent party. In its
representation of the instability of evidence, the play signifies a recurring
Shakespearean concern. When Claudio, assuming the role of witness,
jury, and judge, rushes to declare Hero dishonest, Shakespeare illustrates
the occasion of slander at its most primitive. Had Claudio considered
more than he saw (he has seen “Hero” with another man in her chamber
window) – that is, had he examined the circumstances and considered
the history of the scene – he might not have come to his conclusion.
There are two important factors in this process. The first is memory – the
Friar believes that the real Hero is innocent because her reputation is
unblemished – and the second is patience – the Friar asserts that in time
parties estranged by slander find ways to be reconciled. Identifying the
play’s events with contemporary occurrences, Clegg further suggests that
the timing of the play’s production, 1599, may have been taken to imply
a reference to the Earl of Essex’s fall from royal favor and consequent
subjection to slander and libel.
Attending to one of the most famous legal allusions in the
Shakespeare canon, the Clown’s reference in Hamlet (1599) to the “three
branches of action,” Carolyn Sale links the representations of the rela-
tions of women and property with legal conceptions of agency in three
cases – Hales v. Petit, Wimbish v. Tailbois, and Eyston v. Studd – to discover
how the law’s narrative control of a dead man’s actions, its construc-
tions of the relationship of women to property, and a paradox at the
heart of Plowden’s famous conception of equity converge in
Shakespeare’s play. Reading Plowden’s notion of equity as a contention
that legal discourse achieves equity where it permits itself to be shaped
by things outside it, Sale asks, “in what ways might a dramatic fiction
help to shape, from a site outside both the law’s ‘letter’ and the venues
in which law is interpreted and applied, the ‘moral virtue’ of equity?”
She finds part of the answer in Gertrude’s desire to see Ophelia as the
victim of an accident and not a suicide. Gertrude inverts Henry
Bracton’s dictum (in On the Laws and Customs of England, c. 1220–50) on
the noncausality of inanimate objects – “Stationary things . . . provide
neither the cause nor the occasion for murder”36 – which allows her to
attribute Ophelia’s death to “the envious sliver” of a tree. In this
moment, the play opens up a concept of “agentless action,” which
extends to Hamlet in adopting this feminized position when he kills
Laertes. The logic of the law constructs a discursive field in which
Hamlet acts, so that he may act as (in Plowden’s words) an “amending
hand”: the instrument that ensures the correct functioning of the law.
Both Peter C. Herman and Rebecca Lemon turn their attention to the
broader issue of the sovereign’s authority. Herman establishes how far
Smith’s essentially Tudor vision of this sovereign was troubled by a con-
trasting view of an absolute monarchy, especially as announced by James I.
His endorsement of a “free” monarchy beyond the reach of positive law,
distressing to his new English subjects, might, of course, have admitted
the practice of absolute rule guided by the unratified provisions in natural
and divine law. But absolute rule more radically suggested a drift to
tyranny and a correlative scorn for the legal rights of English subjects.
Such were the rights under what came to be called the “ancient constitu-
tion.” The action in Macbeth (1606) can be seen to pose the following
question: How far is monarchic disorder allowable before subjects can
entertain deposition? The response the play provides is ambiguous. The
distance measuring such an allowance is aporos, unbridgeable. The crux
appears when the heir apparent, Malcolm, confronts his dutiful subject,
Macduff, who while horrified at the prospect of a tyrant, cannot quite

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

provoke. The reader will not discover the last word on any single law or
play, but a continuing conversation. Like any collection of this kind, this
one suffers from its inability to include all that it might – more plays by
Shakespeare, more laws that are here unmentioned, or more reaching
out to other early modern writers. Our notes can only begin to register
our debt to the works of others and to suggest the pervasiveness and the
open-endedness of considering “the law” in “Shakespeare.”
Notes
1. The Second Part of King Henry the Sixth, 4.2.73, ed. David Bevington, in The
Complete Works of Shakespeare (Glenview, IL: Scott, Foresman, 1980),
pp. 587–627.
2. Stanley Fish, Doing What Comes Naturally (Durham, NC, and London: Duke
University Press, 1989), p. 7.
3. See J. L. Austin, How to Do Things with Words (Oxford: Clarendon Press, 1962).
4. Thomas Wilson, The Rule off Reason (1551; rpt. New York: Da Capo Press,
1970), sig. M5r–M6r. See also Allen Boyer, “Drama, Law and Rhetoric in the
Age of Coke and Shakespeare” (Chapter 2); Joel B. Altman, The Tudor Play of
Mind (Berkeley, CA: University of California Press, 1978); Marion Trousdale,
Shakespeare and the Rhetoricians (Chapel Hill, NC: University of North Carolina
Press, 1982); and Sister Miriam Joseph, Shakespeare’s Use of the Arts of Language
(New York: Columbia University Press, 1947).
5. See among others Rebecca Lemon, Treason by Words: Literature, Law and
Rebellion in Shakespeare’s England (Ithaca, NY: Cornell University Press, 2006);
Brian Jay Corrigan, Playhouse Law in Shakespeare’s World (Madison, Teaneck,
NJ: Fairleigh Dickinson University Press, 2004); A. G. Harmon, Eternal Bonds,
True Contracts: Law and Nature in Shakespeare’s Problem Plays (Albany, NY: State
University of New York Press, 2004); Craig Bernthal, The Trial of Man:
Christianity and Judgment in the World of Shakespeare (Wilmington, DE: ISI
Books, 2003); B. J. Sokol and Mary Sokol, Shakespeare, Law, and Marriage
(Cambridge: Cambridge University Press, 2003); Luke Wilson, Theaters of
Intention: Drama and the Law in Early Modern England (Stanford, CA: Stanford
University Press, 2000); William M. Hawley, Shakespearean Tragedy and the
Common Law: The Art of Punishment (New York: Peter Lang, 1998); Gillian
Murray Kendall, ed., Shakespearean Power and Punishment (Madison, Teaneck,
NJ: Fairleigh Dickinson University Press, 1998); Constance Jordan,
Shakespeare’s Monarchies: Ruler and Subject in the Romances (Ithaca, NY: Cornell
University Press, 1997); M. Lindsay Kaplan, The Culture of Slander in Early
Modern England (Ithaca, NY: Cornell University Press, 1997); Daniel J.
Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton, NJ:
Princeton University Press, 1994); Darryl J. Gless, “Measure for Measure,” the Law,
and the Convent (Princeton, NJ: Princeton University Press, 1979); O. Hood
Phillips, Shakespeare and the Lawyers (London: Methuen, 1972); George W.
Keeton, Shakespeare’s Legal and Political Background (New York: Barnes
and Noble, 1967). See also Nancy E. Wright, Margaret W. Ferguson, and
A. R. Buck, eds, Property and the Letters of the Law in Early Modern England
(Toronto: University of Toronto Press, 2004).
6. For this distinction see A. B. W. Simpson, “Incorporeal Things,” in An
Introduction to the History of the Land Law (London: Oxford University Press,
1961), pp. 97–111.
7. “Tenure in capite is where any hold of the King as of his person being King,
and of his Crowne, as of a Lordship by itselfe in grosse and in chiefe above all
other Lordships.” [John Rastell], Les Termes de la Ley (London, 1641), sig. Kk6
verso. See also Socage: “To hold in socage is to hold of any Lord Lands or ten-
ements, yielding to him a certaine rent by the yeare for all manner of
services” (sig. Kk verso); and the conditions of its possession, described as
kinds of estate: “Estate is that tittle or interest that a man hath in lands or
tenements as estate simple other wise called fee simple, and estate condi-
tionall, or upon condition, which is either upon condition in deed, or upon
condition in Law” (sig. V3).
8. For a study of property transfers, see Charles Ross, Elizabethan Literature and
the Law of Fraudulent Conveyance (Aldershot: Ashgate, 2003).
9. De Republica Anglorum, Or, History with the Politics Put Back (Cambridge:
Cambridge University Press, 1982), p. 33.
10. For a comprehensive overview of the prosecution of crime, see John H.
Langbein, Prosecuting Crime in the Renaissance: England, Germany, France
(Boston, MA: Harvard University Press, 1974), pp. 5–125.
11. Termes, sig. 137b.
12. Sir Thomas Smith, The Commonwealth of England and the manner of
government thereof (London, 1601), sig. N2 verso, N3.
13. Smith, The Commonwealth of England, sig. N3.
14. Bernthal, The Trial of Man, p. xxi. The function of the jury is the same in both
inquest and trial. Black’s Law Dictionary, edited by Bryan A. Garner (St. Paul,
MN: West Group, 2004), says under “inquest” that a jury is “a group of per-
sons selected according to law and given the power to decide questions of
fact and return a verdict in the case submitted to them.” In the Oxford History
of the Laws of England (New York: Oxford University Press, 2003), Sir John
Baker writes that “by the Tudor period nearly all issues of fact in the common
law courts were tried by a jury of twelve men” (p. 351). According to Black’s,
there is a special category of jury known as an inquest jury that is summoned
“to inquire about the facts concerning a death,” but this is not what Smith is
referring to. There is a general category of inquest which states that it is “an
inquiry into a certain matter empaneled for that purpose.” This seems to be
what Smith indicates, the “certain matter” being some crime.
15. Smith, The Commonwealth of England, sig. O3.
16. Quoted in Keeton, Shakespeare’s Legal and Political Background, pp. 74–75. See
Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, CA:
Stanford University Press, 2003); and Richard Helgerson, “Writing the Law,”
in Forms of Nationhood (Chicago, IL: Chicago University Press, 1992),
pp. 63–104.
17. On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge:
Cambridge University Press, 1997), p. 7.
18. De Republica Anglorum, ed. Mary Dewar, Book II, ch. 1 (Cambridge: Cambridge
University Press, 1982), pp. 78–79.
19. Phillips, Shakespeare and the Lawyers, pp. 105–07, quoting Sir Frederick
Pollack, “A Note on Shylock v. Antonio,” Law Quarterly Review 30 (1914), 175.
20. On pedagogical and literary aspects of mooting, see Karen Cunningham,
“Fugitive Forms: Imagining the Realm,” in Imaginary Betrayals: Subjectivity
and the Discourses of Treason in Early Modern England (Philadelphia, PA:
University of Pennsylvania Press, 2002). For an analysis of this instruction
with special reference to the revels, see W. R. Elton, Shakespeare’s Troilus and
Cressida and the Inns of Court Revels (Aldershot: Ashgate, 2000). For an essay
incorporating a judgment based on a case argued in moot using
Shakespeare’s works as “law,” see Desmond Manderson and Paul Yachnin,
“Love on Trial: Nature, Law, and Same-Sex Marriage in the Court of
Shakespeare,” McGill Law Journal 49 (2004), 476–511.
21. Poethics: And Other Strategies of Law and Literature (New York: Columbia
University Press, 1992), p. 3; cited in Kornstein, Kill All the Lawyers?, p. 7.
22. Paul W. Kahn, Law and Love: The Trials of King Lear (New Haven, CT: Yale
University Press, 2000), p. xi. In the fearful situation of war, critics have
discerned a role for a law of honor; Shakespeare’s soldiers both observe and
violate that law. See Theodor Meron, Bloody Constraint: War and Chivalry in
Shakespeare (New York: Oxford University Press, 1998), p. 5. See also
Constance Jordan, “Henry V and the Tudor Monarchy,” in Early Modern
English Drama, ed. Garret A. Sullivan Jr., Patrick Cheney, and Andrew
Hadfield (New York: Oxford University Press, 2006), pp. 108–19.
23. All quotations from Kahn, Law and Love, p. 172.
24. Ian Ward, Shakespeare and the Legal Imagination (London, Edinburgh, and
Dublin: Butterworth’s, 1999), pp. 1–2.
25. Phillips, Shakespeare and the Lawyers, pp. 49–55. For an analysis of resistance,
see Richard Strier, Resistant Structures: Particularity, Radicalism, and Renaissance
Texts (Berkeley, Los Angeles, and London: University of California Press,
1995), pp. 165–202.
26. The literature on the history plays is extensive; much of it touches on concep-
tions of law. See among others Phyllis Rackin, Stages of History: Shakespeare’s
English Chronicles (Ithaca, NY: Cornell University Press, 1990); Alexander
Leggatt, Shakespeare’s Political Drama: The History Plays and the Roman Plays
(New York: Routledge, 1988); Robin Headlam Wells, Shakespeare: Politics and
the State (London: Macmillan, 1986); Edna Zwick Boris, Shakespeare’s English
Kings, the People and the Law: A Study in the Relationship between the Tudor
Constitution and the English History Plays (London: Associated University
Presses, 1978); M. M. Reese, The Cease of Majesty: A Study of Shakespeare’s
History Plays (London: Edward Arnold, 1961); Lily B. Campbell, Shakespeare’s
“Histories”: Mirrors of Elizabethan Policy (London: Methuen, 1947);
E. M. W. Tillyard, Shakespeare’s History Plays (New York: Macmillan, 1946). See
also Keeton, Shakespeare’s Legal and Political Background, pp. 225–370; Phyllis
Rackin and Jean Howard, Engendering a Nation: A Feminist Account of
Shakespeare’s English Histories (New York: Routledge, 1997).
27. Ward, Shakespeare and the Legal Imagination, p. 1.
28. Ward, Shakespeare and the Legal Imagination, p. 15, citing Terence Hawkes,
That Shakespeherian Rag: Essays on a Critical Process (London and New York:
Methuen, 1986).
29. John Drakakis, ed., Alternative Shakespeares (London and New York: Methuen,
1985), p. 23.
30. Ward, Shakespeare and the Legal Imagination, p. 16.
31. For a lucid summary of this law, see Sokol and Sokol, Shakespeare, Law, and
Marriage, pp. 3–9.
32. The term is Bacon’s; see his essay “On Revenge.”
33. Sir John Fortescue, A learned commendation of the politique laws of England,
trans. Robert Mulcaster (London, 1599), f. 61 verso–62 verso. The work of
Fortescue (1394?–1476?) that we cite here, an edition of De laudibus legum
Angliae with the text printed in Latin and English parallel columns, was first
published in 1573 by Richard Tottel; the original Latin text was first
published in 1543 by Edward Whitechurch.
34. For an account of official torture, see Elizabeth Hanson, Discovering the Subject
in Renaissance England (Cambridge: Cambridge University Press, 1998); and
R. A. Foakes, Shakespeare and Violence (Cambridge: Cambridge University
Press, 2003).
35. See Fredric Jameson, The Political Unconscious: Narrative As a Socially Symbolic
Act (Ithaca, NY: Cornell University Press, 1981).
36. Henry Bracton, On the Laws and Customs of England, ed. George Woodbine,
trans. Samuel E. Thorne, vol. 2 (Cambridge, MA: Belknap Press with the
Selden Society, 1977), p. 384. See Carolyn Sale, “The ‘Amending Hand’: Hales v.
Petit, Eyston v. Studd and Equitable Action in Hamlet” (Chapter 11).
2
Drama, Law, and Rhetoric in the
Age of Coke and Shakespeare
Allen D. Boyer
In 1601, in February half-light, England’s greatest common lawyer and

greatest playwright crossed courses. Edward Coke, the Queen’s Attorney-
General, pushed into the theatrical world of the Globe, to take the testi-
mony of Augustine Phillips, William Shakespeare’s fellow-player. Coke
was investigating the earl of Essex’s failed coup d’etat. He questioned
Phillips about a play which Essex had paid the company to stage, The
Tragedy of King Richard the Second (1595).1 His questions answered, Coke
departed, but on his own terrain, the lawyers’ precincts of Holborn and
Westminster, the Attorney-General found himself shadowed by two
Stratford men, Richard Quiney and Thomas Greene. Quiney and Greene
were Shakespeare’s allies in a property dispute. They had come to
London to consult with Coke. They tipped Coke’s clerk and doorkeeper
“that we might have access to their master for his counsel,” Quiney
wrote, and Coke ultimately accepted their retainer, but they “could not
have him at leisure by the reason of these troubles.”2
Did Coke and Shakespeare speak face to face? They may have met as
many as four times, and there is more than one sense in which they may
have exchanged words.3 Shakespeare’s works are packed with legal terms
and concepts which Coke had helped define. Legal literalism hangs over
The Merchant of Venice (1596–97), just as judgment and punishment
loom above Measure for Measure (1604). With a peculiar rigor, Hamlet
(1599) dramatizes the numerous varieties of Elizabethan homicide.4
Shakespeare’s verse speaks of love in legal language – in terms of leases,
mortgages, pleadings, impediments to marriage, and the manor-court
proceedings which overshadow Sonnet 46: “to ’cide this title is impan-
nellèd, a quest of thoughts, all tenants to the heart.”
Coke seems in turn to have borrowed from Shakespeare. Five years
after he questioned Phillips, Coke quoted and paraphrased Richard II. To
20
Drama, Law, and Rhetoric 21
hearten a crowd at the Norfolk assizes, he echoed the long patriotic

speech which Shakespeare had assigned to John of Gaunt. Here is
Gaunt’s praise of his native island:
This royal throne of kings, this scept’red isle,

This earth of majesty, this seat of Mars,
This other Eden, demi-paradise,
This fortress built by Nature for herself
Against infection and the hand of war,
This happy breed of men, this little world,
This precious stone set in the silver sea . . .
This blessed plot, this earth, this realm, this England.5
Coke clearly caught the tenor of the passage. Had the Gunpowder Plot
succeeded, he reminded his listeners, “This sea-environed island, the
beauty, and the wonder of the world. . . . This so well planted, pleasant,
fruitful world, accounted Eden’s paradise, should have been, by this
time, made a place disconsolate.”6 Coke borrowed Shakespeare’s tropes
and phrases, even his meter: so well planted, pleasant, fruitful world.7
The Elizabethan age, a distinguished scholar has said, was an age
peculiarly receptive to such patterning of language, “a world in which
rhetoric and literature were at home with the law itself.”8 Rhetorical
forms had penetrated the vernacular self-expression of early modern
England; where the discipline influenced letters, journals, diaries, even
meeting agendas, it was no accident that it shaped the language of the
law courts and the language of the Elizabethan stage.9 For the lawyers,
the mastery of rhetoric was tantamount to eloquence – and the lawyers
pressed further, to equate eloquence with wisdom and wisdom with
their command of the common law. For those who worked in
Shakespeare’s world, the playwrights’ craft drew on the rhetoricians’ art.
In these different contexts, rhetoric supplied methodology. That Coke
and Shakespeare’s paths crossed, in the gray, wintry days which were
lengthening into the new century, reflects their sharing of a common
culture.
Rhetoric and the Tudor curriculum
For some twelve hours a day, approximately thirty-six weeks a year, and
six years of what could have been a more carefree childhood, the school-
boys of Tudor England were drilled in grammar and rhetoric. They
memorized tropes and figures of speech, the three styles of rhetoric, and
22 Allen D. Boyer
the five parts of an oration.10 In these circumstances, as C. S. Lewis

observed,
Elizabethan thinkers must be pictured growing up from boyhood in a

world of “prettie epanorthosis,” paranomasia, isocolon and similer
cadentia. . . . You adored sweet Tully and were as concerned about
asyndeton and chiasmus as a modern schoolboy is about county
cricketers or types of airplanes.11
The standard text from which Tudor schoolboys worked their way into
the rhetorical tradition was the Apthonium Progymnasmata, an exercise
book first drafted twelve centuries earlier by the grammarian Apthonius
of Tyre.12 As well as providing plots and preparing students to embroider
language, this text introduced students to writing dialogue and imagin-
ing characters. The Progymnasmata prescribed an exercise known as the
ethopoeia in which the student imagined the words that a well-known
fictional character might utter in some dramatic situation. (Achilles
viewing the body of Patroclus, Apthonius suggested.) Another writer
favored by the grammar schools, Quintilian, writing for orators who
would work as lawyers, took this further, shrewdly recognizing where
the advocate could learn from the tragedian:
Impersonation may also be employed with profit in such passages,

and by impersonations I mean fictitious speeches supposed to be
uttered, such as an advocate puts into the mouth of his
client. . . . Consequently Cicero, to quote him once again, although
he will not put entreaties into Milo’s mouth, and prefers to commend
him by his staunchness of character, still lends him words in the form
of such complaint as may become a brave man. “Alas!” he says, “my
labors have been in vain! Alas for my blighted hopes! Alas for my
baffled purpose!”13
The Ad Herennium treated such subjects more extensively. Under notatio,

“character delineation,” this treatise sketched the plotline of a farce. It
supplied the tale of a down-at-heels braggart who passes himself off as
rich, through presumption, mistaken identity, the confusion of street
addresses, and the complicity of a quick-witted slave boy.14 Such les-
sons, meant for young orators, would prove invaluable to journeymen
playwrights.
In these same grammar-school years, the students were taught the
figures of rhetoric. Anaphora is to begin a series of phrases with the same
word. Epistrophe is to end a series of phrases with the same word. Ploce is
the repetition of individual words throughout a passage. Isocolon is to
construct a passage from successive phrases of the same length, or from
sentences of parallel structure. Zeugma is to omit a word from one phrase
and supply it in another. Since classical times, it had been maintained
that such figures could be counted on to reflect emotion and that in a
master’s hands they would magnify emotion among an audience, perhaps
harness such feelings as a persuasive force.15 “The chief praise and cun-
ning of our poet is in the discreet using of his figures,” George Puttenham
wrote, and reiterated the point: to avoid the “use of figure[s] at all” makes
“our writing and speeches public . . . but as our ordinary talk.”16
As the exercises progressed, students learned to debate. The Controversiae
of Seneca the Elder, collections of judicial declamations, were frequently
used in the grammar schools.17 The topics debated in such cases were
recklessly unrealistic. One controversia, “The Man Who Raped Two
Women,” set forth a law which provided that a woman who had been
raped might choose either that her attacker be executed or that he marry
her without a dowry – then asked how that law should be applied when
one of a rapist’s victims demanded that he die for his crime and the other
claimed him as her bridegroom. Another controversia, “The Woman
Tortured by the Tyrant Because of Her Husband,” narrated the story of a
faithful but unfortunate wife, tortured by a tyrant to make her confess
her husband’s plotting against the regime, who was put away by her
husband for barrenness and sued him for ingratitude. For student ora-
tors seeking themes of filial obligation and paternal authority, a livelier
narrative was provided by another tale, known as “The Archipiratae
Filia”:
A youth, captured by pirates, wrote his father for a ransom; no ran-

som was sent. The daughter of the pirate chief forced the youth to
promise he would marry her if he were freed; he promised. She left
her father and followed the young man. He returned to his father and
married her. An orphan heiress appears; the father orders his son to
marry her, abandoning the daughter of the pirate chief. When he
refuses, his father disinherits him.18
The topics of the Controversiae were familiar in the grammar schools. To

win acclaim, a debater had to find a novel way of reworking the
material: by elaborating a topic, by imagining details, by inventing facts.
Rather than following a plausible narrative or orchestrating a logical
argument, the orator heightened drama and elaborated the language.
24 Allen D. Boyer
Humanist teachers required that their pupils keep notebooks,

commonplace books, and write down in them phrases from the classi-
cal authors whom they were reading.19 The illustrations which the
students collected were classed as exempla. Literally, exemplum meant
“example” or “instance,” a similar incident: pattern, model, precedent,
case.20 The category was broadly defined: exempla could be fables, para-
bles, proverbs, analogies, or scenes from poetry, prose, or drama – any
compelling example or pithy remark, virtually anything that could be
persuasively quoted. “There are past deeds and past sayings for example,”
Erasmus remarked, “and common customs of people are adduced in
exempla.”21 At the same time, however, the individual exemplum could
be considered a miniature case study. Erasmus noted that “the exemplum
pertains to the deeds of individual men” (unlike the parable, a generalized
illustration).22
The humanist practice of collecting illustrations was matched by a
practice of drawing morals, applying sententiae. Every moral was illus-
trated by example; every anecdote offered the chance to point a moral.
Erasmus reviewed the many different interpretations which one could
apply to the death of Socrates.
[T]he death of Socrates provides not only an exemplum that death

should not be feared by the good man, since Socrates drank the hem-
lock with such a cheerful countenance. . . . And here this fact may
itself be developed both to praise Socrates and to censure him. For he
should be praised who, condemned through no crime of his own but
solely through envy, was so bravely indifferent to death; he should be
censured who by his useless study of philosophy and neglect of the
general mores brought the bitterest grief upon his friends, wife, and
children.23
The rhetorical techniques learned in the Elizabethan schoolroom

identified rhetorical practices with cultural identity. Oratory had
created society, Cicero had argued: cities had first been built because
orators convinced a scattered people of the value of living in civilized
company.24 This claim was now revived. In his Arte of English Poesie
(1589), following the lead of Sir Philip Sidney, George Puttenham
claimed that the achievements of the first orators should be credited to
the poets. “[T]he poet is of all other the most ancient orator,”
Puttenham wrote, “he that by good and pleasant persuasions first
reduced the wild and beastly people into public societies and civility of
life.”25 Nor were the common lawyers slow to make the same assertion.26
As Stephen Hawes had argued during the reign of Elizabeth’s father:
Before the law / in a tumbling barge

The people sailed / without perfectness . . .
They had no order / nor no steadfastness
Till rhetoricians / found justice doubtless
Ordaining kings / of right high dignity
Of all commons / to have the sovereignty
The barge to steer / with law and justice
Over the waves / of this life transitory.27
For the Elizabethans, as Edmund Spenser phrased it, the challenge of the
age was to construct “the kingdom of our own language.”28 The claim
that orators organized society – that language created culture – speaks
to the cultural enterprise in which the dramatists and the lawyers found
themselves engaged.
From rhetoric to drama
The strength a dramatist could draw from rhetoric was amply illustrated
in Christopher Marlowe’s Tamburlaine (1587). The mighty five-beat lines
of this tragedy are stocked with rhetorical figures, and its scenes may be
studied as a series of declamations. Even the shortest speech may be
lengthened by distributio, the individualized elaboration of a single
item’s parts. The mass of an army, for example, is described as “one hun-
dred and fifty thousand horse, two hundred thousand foot, brave men-
at-arms, courageous and full of hardiness.”29 More elaborately, a virgin
herald asks that Tamburlaine spare the inhabitants of besieged
Damascus:
Pity our plights! O, pity poor Damascus!

Pity old age, within whose silver hairs
Honor and reverence evermore have reign’d!
Pity the marriage bed, where many a lord
In prime and glory of his loving joy,
Embraceth now with tears of ruth and blood
The jealous body of his fearful wife,
Whose cheeks and hearts so punish’d with conceit,
To think thy puissant, never-stayèd arm
Will part their bodies, and prevent their souls
From heavens of comfort yet their age might bear,
26 Allen D. Boyer
Now wax all pale and wither’d to the death. . . .

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

Francis Beaumont, was a judge. Where the fathers governed, the sons
entertained. With their taste for implausible plots and ornate language,
they approached the bombast and empty wit which Cicero had scorned –
but the mentality of the rhetorician inescapably shaped their work. The
verbal embroidery with which the playwrights surrounded these plots
recalls the student orators’ reworking of the same material. If Beaumont
and Fletcher did not observe the responsibilities of eloquence, the vigor
of their language honored such duties in the breach.
Such intensity was something that Ben Jonson mocked. Jonson
derided “the Tamerlanes, and Tamer-Chams, of the late age, which had
nothing in them but the scenical strutting, and furious vociferation, to
warrant them to the ignorant gapers.”35 Jonson further remarked that he
would “no more choose a rhetorician for reigning in a school than I
would a pilot for rowing in a pond.”36 In showing such disdain, however,
Jonson may have masked his own ambition to claim the traditional
laurels. Of all the poets, he proclaimed, “the comic comes nearest” to
the role of the orator,
Because in moving the minds of men, and stirring of affections (in

which oratory shows, and especially approves her eminence) he
chiefly excels. What figure of a body was Lysippus ever able to form
with his graver, or Apelles to paint with his pencil, as the comedy to
life expresseth so many and various affections of the mind? [There is]
no perturbation in common life, but the orator finds an example of it
in the scene.37
However presumptuous Jonson meant to be in claiming that the comic

poet was the orator’s true heir, his assertion outlines a suggestive way of
assessing Shakespeare’s achievement. As Walter Ong perceptively
phrased it, to the Elizabethans, eloquence meant life.38 To see literature in
such terms, as a connection of life and eloquence, offers a particularly
useful approach to Shakespeare, whose genius is reflected in his broad
treatment of humanity and language – in numberless vivid characters
and varied scenes, a fearlessly wide-ranging choice of vocabulary, and a
capacity to make poetry fit any level which drama demanded.
Shakespeare had thoroughly learned the lessons of the orator. In Julius
Caesar (1599), he drew on Plutarch with an ease that Erasmus would
have praised. Beyond that, when Brutus broods upon the impending
assassination, envisioning Caesar as an adder to be killed in the egg,
Shakespeare follows a lesson that he had likely learned in the Stratford
28 Allen D. Boyer
grammar school. The dramatic scene is patterned on the exercise of the

locus communis, a study in “amplifying the evil” of its subject.39 Another
well-remembered lesson shapes Othello (1602–04). Early in the play,
when Othello defends himself against the charge of bewitching
Desdemona, he asserts his innocence in an address which runs to nearly
a hundred lines, following strictly the form prescribed for such orations:
exordium, propositio, argumentatio, peroratio.40
Shakespeare’s achievement as a dramatic poet is nowhere more
remarkable than in his growing mastery of rhetoric. By the most
painstaking count, he knew and used more than two hundred rhetorical
figures.41 The stamp of this learning is strongly set on the youthful mas-
terpiece Richard III (1591). Richard’s opening soliloquy sets the model:
Now is the winter of our discontent

Made glorious summer by this son of York . . .
Now are our brows bound with victorious wreaths,
Our bruisèd arms hung up for monuments,
Our stern alarums changed to merry meetings,
Our dreadful marches to delightful measures. (1.1.1–8)
This passage is a study in ironies. Half choric exposition, half an aside, it

sets the dramatic scene while revealing a character’s secret thoughts. A
murderously ambitious soldier describes the peace that he plans to dis-
rupt and the victory of a brother whose heirs he plans to overthrow. The
irony of this incipient drama is bolstered by a checkerboard of contrast-
ing metaphors: winter and summer, struggle and celebration. The motif
of seasonal change is enriched with a verbal pun (“this son of York”) –
which both notes the accession of the Yorkist monarch Edward IV and
makes a further visual pun, the sun employed by the new king as a
heraldic badge. Embracing these metaphors, rhetorical figures provide
an elegant superstructure. Anaphora and isocolon shape the passage.
Zeugma buttresses the parallel structure with the rhythmic omission of
the verb, turning the phrases into smooth iambics. Alliteration ties the
lines and thoughts together (merry meetings, dreadful marches, and
delightful measures); assonance and rhyme quicken the verse (arms,
alarums). These balances and pairings put a final polish on Richard’s
words. Few passages ever written are more measured. And that provides
a final irony: the speech is a verbal reflection of that order which
Richard’s falsehoods and blandishments will shatter.
In Richard III, rhetoric provides the shaping strength of an exoskeleton –
also its rigidity. Speeches march to the beat of rhetorical form rather
than course with the flow of everyday speech. By the time Shakespeare
came to write King Lear (1604–05), he had mastered his craft more fully.
When Kent addresses Lear, trying to prevent the king from dividing his
kingdom, the courtier shifts from stately measures (“Royal Lear, whom I
have ever honored as my king / Loved as my father, as my master
followed . . .” [1.1.139–40]) to blunt and forthright language (“Be Kent
unmannerly when Lear is mad. What wouldst thou do, old man?”
[1.1.145–46]). No less than in Richard III, rhetorical figures function
here. Rhetoric offered ways for a subject to cautiously broach a topic
which a monarch might resent. Puritan gadfly Peter Wentworth,
protesting his queen’s stern handling of the House of Commons, voiced
dissent in the form of a chreia, a generalized, stylized address in praise of
freedom of speech – trusting that he might win a hearing “by minutely
observing the expected forms of Elizabethan discourse.”42 Yet rhetoric also
offered more strenuous forms of protest, as Shakespeare too observed.
Kent’s outburst represents the figure of “uncontrolled vociferation” –
“liberty” to Cicero, “license” to Quintilian, “frankness of speech” in the
Ad Herennium.43 This was recognized in Elizabeth’s day as the justified
outburst of a loyal subject’s protest to a monarch, but the playwright
makes it more: the break from respectful verse to reckless prose reflects
the disorder into which Lear’s unwise choice will send the realm. The
measure of Shakespeare’s artistry is the way in which, more skillfully
than Marlowe, he fitted different rhetorical figures to different charac-
ters’ voices, and melded sound with sense at a level that Fletcher could
only seldom reach.
The lawyers’ use of rhetoric
The rhetorical training which students received in the Elizabethan

grammar school continued at the Inns of Court. In The Book Named the
Governor (1531), Sir Thomas Elyot considered that rhetorical concepts
had been woven into the fabric of legal training.
[I]n the learning of the laws of this realm, there is at this day an exer-
cise wherein is a manner, a shadow or figure of the ancient rhetoric. I
mean the pleading used in court and Chancery called moots, where
first a case is appointed to be mooted. . . . The case being known, they
which be appointed to moot, do examine the case, and investigate
what they therein can espy which may make a contention, whereof
may rise a question to be argued (and that of Tully is called constitutio,
and of Quintilian status causae).44
30 Allen D. Boyer
The common lawyers worked and thought as rhetoricians.45 They learned

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

makes clear the connection between legal reasoning and the rhetorical
paradigm.
All such testimonies may be called sentences of the sage, which are
brought to confirm any thing, either taken out of old authors, or else
such as have been used in this common life. As the sentences of noble
men, the laws in any realm, quick sayings, proverbs, that either have
been used before, or be now used. Histories of wise philosophers,
the judgments of learned men, the common opinion of the
multitude, old customs, ancient fashions, or any such like.51
Erasmus spoke of serious sayings and public practices. Wilson shifts the
emphasis to laws, judgments, common opinion, and old customs – the
raw material with which the common-law judge worked. The ease of
this transposition may explain the self-confidence of the common law’s
masters. From regarding public practice and common opinion as judicia,
it was a short step to confirming custom with legal judgments.
Artifice in rhetoric and law
The Elizabethan era was the period in which English law shifted from
a medieval focus on doctrinal principle to a new model of jurispru-
dence, judge-made law reflected in decisions. Merchants sought better
ways to pay creditors or sue debtors, patriarchs to replace women’s
dower rights with jointure claims, landlords to wring money out of
feudal obligations. New issues demanded new court decisions. Out of
Year Book materials which focused on procedure, rules of substantive
law had to be made. In this Coke led, first among equals. “Coke’s
spurious Latin maxims,” Samuel Thorne wrote, perhaps too face-
tiously, “which he could manufacture to fit any occasion . . . are apt to
introduce a new departure.”52 The exemplum had become the case
report, a set of facts to which interpretations could be applied. New
cases were decided, and new law was made, as the lawyers clinched
their arguments by applying newly coined maxims to the facts of a
case – using sententiae to put an advocate’s gloss on exempla. To hear
the Queen’s Attorney end a courtroom appearance with a volley of
Latin phrases might have recalled similar bursts of Latin taglines in
Marlowe’s Doctor Faustus.53
New scrutiny was paid to the process by which the common lawyers
shaped the emerging law. To explain their discipline, the common
lawyers spoke in terms of artifice and convention. This was the familiar
landscape of rhetoric, and the lawyers chose their terrain well.
Rhetoricians claimed a special privilege for their discipline, that the
highest eloquence could be achieved only by employing rhetorical
forms. As Thomas Wilson declared, “Many speak wisely which never
read logic, but to speak wisely with an argument, and to know the very
foundations of things: that can none do, except they have some skill in
32 Allen D. Boyer
this art.”54 The comments of Puttenham are equally revealing:
And though grave and wise councilors in their consultations do not

use much superfluous eloquence, and also in their judicial hearings
do much mislike all scholastical rhetorics: yet in such a case as it may
be (and as this Parliament was) if the Lord Chancellor of England or
Archbishop of Canterbury himself were to speak, he ought to do it
cunningly and eloquently, which cannot be without the use of
figures.55
In short, the rhetoricians claimed that the sophistication of their

discipline made rhetorical discourse the only appropriate discourse for
public life.
The rhetoricians’ art and the lawyers’ discipline showed a common
preference for art over nature. In 1588, Abraham Fraunce wrote:
Logic is an art, to distinguish artificial logic from natural reason.

Artificial Logic is gathered out of divers examples of natural reason,
which is not any art of logic, but that ingraven gift and faculty of wit
and reason shining in the particular discourses of several men,
whereby they both invent, and orderly dispose. . . . This as it is to no
man given in full perfection, so diverse have it in sundry measure. . . .
And then is this logic of art more certain then that of nature, because
of many particulars in nature, a general and infallible constitution of
logic is put down in art.56
Fraunce’s concept of “artificial logic” bears close comparison with

Coke’s concept of “artificial reason,” the wisdom of the judges, which
represents his definition of law. The artifice applied by the rhetorician
comes out of orderly invention and disposition, examination and dis-
cussion among thinkers schooled in the rhetorical arts. The artificial rea-
son of the lawyer, likewise, is not natural reason, simple native
intelligence; it is a proficiency which can be acquired only by an appren-
tice steeped in lawyers’ conventions. Coke put it thus:
[R]eason is the life of the law, nay the common law itself is nothing
else but reason; which is to be understood of an artificial perfection
of reason, gotten by long study, observation, and experience, and not
of every man’s natural reason; for Nemo nascitur artifex. This legal rea-
son est summa ratio. And therefore if all the reason that is dispersed
into so many several heads were united into one, yet could he not
make such a law as the law in England is; because by many succes-
sions of ages it hath been fined and refined by an infinite number of
grave and learned men, and by long experience grown to [such] per-
fection, to the government of this realm.57
Coke printed this passage in 1628, in his magisterial Commentary Upon

Littleton. Twenty years earlier, facing an angry King James, he had dared
to make the same assertion – to tell the king that, despite his majesty’s
accomplishments, he lacked the professional training to decide cases at
the common law.58
If rhetoric was held to be the highest form of expression, the orator
was held to be the most honorable of men. Cicero had claimed that the
orator combined eloquence with wisdom; Quintilian that the orator
combined eloquence with virtue. Coke echoed this forcefully. Among
students of the common law, he wrote, “I never saw any man of excel-
lent judgment in these laws, but was withal . . . honest, faithful, and
virtuous.”59 Coke’s own epitaph asserted similar claims – that the old
judge had been integritas ipsa, verae semper causae constantissimus assertor,
nec favore, nec muneribus violandus (the soul of honor, ever the steadfast
champion of the cause of truth, not to be corrupted by bias or bribes).
The rhetoricians’ equation of eloquence with rhetorical accomplish-
ment could be given a corollary: that no trained rhetorician need accept
an argument which did not employ the figures and conventions of
rhetoric. To this corollary might be added a second: that as judges were
wise and virtuous, the stewardship of the laws might well be entrusted to
such savants. The master’s command of his discipline, in law as in rheto-
ric, provided an unanswerable claim to superior wisdom. Privileging
rhetoric cleared the way for Coke’s privileging of the judges’ reason.
Conclusion
As Spenser had urged, the Elizabethans framed a new kingdom for their
expanding language. The best of them went beyond their masters. Not
content merely to celebrate eloquence, they found in rhetoric new
temptations and new strengths.
What the lawyers claimed – that the true rhetorician was honest and
virtuous – was not what the poets believed. Shakespeare doubted that
rhetoric taught virtue. As Brian Vickers has written,
[T]he good people in Shakespeare do not need to be persuaded: they

are good already. . . . Persuasion in his plays is either evil, or has
34 Allen D. Boyer
unexpectedly bad results, or is futile. It is seldom glorious, or

admirable, or Christian.60
Shakespeare’s most plausible rhetoricians are his greatest monsters,

Richard of Gloucester and the insidious Iago. This skepticism may pro-
vide a critical component of Shakespeare’s artistry. Just as he created
characters whose brilliant language deceived others, so he created char-
acters who deceived themselves, and whose magnificent language could
reflect their progress from self-deception into self-awareness: the elo-
quence, loss, and consolation of tragedy.
And yet the lawyers did not deceive themselves completely. Beneath
their self-congratulation, their talk of virtue and eloquence, one finds a
hard core of professional consensus and intellectual cohesion. If the
judges’ wisdom was summa ratio, it followed that judges might overrule
opinions or rules which were less soundly considered. In 1610, in
Bonham’s Case, Coke claimed for the judges the power to overrule
statutes. “The common law will control acts of Parliament,” Coke wrote,
“for when an act of Parliament is against common right and reason . . .
the common law will control it, and adjudge such act to be void.”61
From this decision flows the doctrine of judicial review, the judge’s
power to strike down insupportable laws. The lawyers, as ever, had been
less subtle than the poets, but they claimed this triumph of their own.
They had found a way to enforce what they found persuasive and just, a
new way to follow eloquence with action.
Notes
1. Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (Palo Alto, CA: Stanford
2. Mark Eccles, Shakespeare in Warwickshire (Madison, WI: University of
Wisconsin Press, 1961), pp. 97–98.
3. In 1603, both Coke and Shakespeare marched in the coronation procession of
King James I. In 1615, Coke ruled on a dispute on enclosures at Welcombe,
outside Stratford, where Shakespeare owned tithe revenues, and, later that
same year, Coke supplied the Privy Council with an opinion on the lawfulness
of erecting a new playhouse in the Blackfriars precinct. Catherine Drinker
Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston,
MA: Little, Brown & Co., 1957), p. 564; Victoria History of the County of
Warwick, ed. L. F. Salzman and Philip Styles, vol. 3 (London: A. Constable,
1904), p. 267; Irwin Smith, Shakespeare’s Blackfriars Playhouse (New York:
New York University Press, 1964), pp. 197–98.
4. Thomas Glyn Watkin, “Hamlet and the Law of Homicide,” Law Quarterly
Review 100 (1984), 282–310.
5. William Shakespeare, The Tragedy of King Richard the Second, 2.1.40–50. This
and subsequent citations refer to William Shakespeare, The Complete Works,
ed. Alfred Harbage (New York: Viking Press, 1969).
6. The Lord Coke His Speech and Charge, with a Discoverie of the Abuses and
Corruption of Officers (1607; rpt. New York: Da Capo Press, 1972), sig. F1 r–v.
On Coke’s literary connections, see John Marshall Gest, “The Writings of Sir
Edward Coke,” Yale Law Journal 18 (1909), 504–32.
7. Boyer, Sir Edward Coke, p. 288; Marc L. Schwarz, “Sir Edward Coke and ‘This
Sceptr’d Isle’: A Case of Borrowing?” Notes and Queries 233 (1988), 54.
8. Richard Schoeck, “The Borromeo Rings: Rhetoric, Law and Literature in the
English Renaissance,” in Rhetoric and Pedagogy: Essays in Honor of James J.
Murphy, ed. Winifred B. Horner and Michael Leff (Mahwah, NJ: Lawrence
Erlbaum, 1995), p. 269.
9. See Peter Mack, Elizabethan Rhetoric: Theory and Practice (Cambridge:
Cambridge University Press, 2002).
10. Brian Vickers, In Defense of Rhetoric (Oxford: Clarendon Press, 1983),
pp. 258–83; Joel Altman, The Tudor Play of Mind: Rhetorical Inquiry and the
Development of Elizabethan Drama (Berkeley, CA: University of California
Press, 1978), pp. 43–53; Lawrence D. Greene, “Grammatica Movet,” in
Rhetorica Movet: Studies in Historical and Modern Rhetoric in Honor of Heinrich
Plett, ed. Peter L. Oesterreich and Thomas O. Sloane (Leiden: Brill, 1999),
pp. 73–115; and particularly T. W. Baldwin, William Shakspere’s Small Latine
and Lesse Greeke (Urbana, IL: University of Illinois Press, 1944). Schooling
seems to have been less standardized for young women. Although the
number of schoolgirls was not inconsiderable – dozens of licensed
schoolmistresses have been identified in Elizabethan London – their instruc-
tion was more informal and irregular, leaving fewer traces. Jay P. Anglin, The
Third University: A Survey of Schools and Schoolmasters in the Elizabethan Diocese
of London (Darby, PA: Norwood Editions, 1985), pp. 75–90.
11. C. S. Lewis, English Literature in the Sixteenth Century Excluding Drama (Oxford:
Clarendon Press, 1962), p. 61.
12. Donald Lemen Clark, “The Rise and Fall of Progymnasmata in Sixteenth and
Seventeenth Century Grammar Schools,” Speech Monographs 19 (1952), 261;
Ray Nadeau, “The Progymnasmata of Apthonius in Translation,” Speech
Monographs 19 (1953), 264–85.
13. Quintilian, Institutio Oratoria, 6.1.25–26, trans. H. E. Butler (Cambridge, MA:
Loeb Classical Library, 1920).
14. Ad Herennium, 4.49.62–4.51.64, trans. H. Caplan (Cambridge, MA: Loeb
Classical Library, 1954).
15. Brian Vickers, Classical Rhetoric in English Poetry (New York: St. Martin’s Press,
1970), pp. 83–121.
16. George Puttenham, The Arte of English Poesie, ed. Gladys Doidge Willcock and
Alice Walker (1589; rpt. Cambridge: Cambridge University Press, 1936),
p. 138.
17. The following discussion draws on Eugene M. Waith, The Pattern of
Tragicomedy in Beaumont and Fletcher (New Haven, CT: Yale University Press,
1952), pp. 87–98.
18. Waith, The Pattern of Tragicomedy, p. 89.
36 Allen D. Boyer
19. R. R. Bolgar, The Classical Heritage and Its Beneficiaries (Cambridge: Cambridge
University Press, 1954); Ann Moss, Printed Commonplace Books and the
Structuring of Renaissance Thought (Oxford: Clarendon Press, 1996); see
also Desiderius Erasmus, On Copia of Words and Ideas [De Copia], trans.
Donald B. King and H. David Rix (Milwaukee, WI: Marquette University
Press, 1963), p. 90.
20. Lewis & Short, A Latin Dictionary (1980 ed.), s.v. “exemplum.”
21. Erasmus, De Copia, p. 68.
23. Erasmus, De Copia, pp. 90–91.
24. Cicero, De Inventione, 1.2.2, trans. H. M. Hubbell (Cambridge, MA: Loeb
Classical Library, 1949).
25. Puttenham, The Arte, p. 196.
26. Brian Vickers, “The Power of Persuasion: Images of the Orator, Elyot to
Shakespeare,” in Renaissance Eloquence: Studies in the Theory and Practice of
Renaissance Rhetoric, ed. James J. Murphy (Berkeley, CA: University of
California Press, 1983), p. 415.
27. Stephen Hawes, The Pastime of Pleasure (1517), quoted in Vickers, “The Power
of Persuasion,” p. 415.
28. Quoted in Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of
England (Chicago, IL: University of Chicago Press, 1992), p. 1.
29. Christopher Marlowe, Tamburlaine, 4.3.53–55, ed. J.B. Steane (Harmondsworth,
Middlesex: Penguin Books, 1969). Subsequent citations to Marlowe refer
to this edition. Marlowe was never more a schoolman than when, among
the atrocities of St. Bartholomew’s Day, he focused on the murder of the
Huguenot rhetorician Pierre de la Ramée, alias Petrus Ramus. John Ronald
Glenn, “The Martyrdom of Ramus in Marlowe’s The Massacre at Paris,” Papers
on Language and Literature 9 (1973), 365–79.
30. Donald Peet, “The Rhetoric of Tamburlaine,” English Literary History 26
(1959), 143.
31. Peet, “The Rhetoric,” 146.
32. Peet, “The Rhetoric,”139–40, 150–54.
33. Waith, The Pattern of Tragicomedy, pp. 132–38, 203–07.
34. Waith, The Pattern of Tragicomedy, p. 174.
35. Alexander H. Sackton, Rhetoric As a Dramatic Language in Ben Jonson
(New York: Columbia University Press, 1948), pp. 116–17; Ben Jonson,
Works, ed. Charles Harold Herford, Percy Simpson, and Evelyn Simpson,
vol. 8 (Oxford: Clarendon Press, 1925), pp. 116–17.
36. Sackton, Rhetoric As a Dramatic Language, p. 22; Jonson, Works, pp. 576–77.
37. Sackton, Rhetoric As a Dramatic Language, pp. 41–42; Jonson, Works,
pp. 640–41.
38. Walter J. Ong, Ramus: Method and the Decline of Dialogue (Cambridge, MA:
Harvard University Press, 1958), pp. 121–26.
39. Nadeau, “The Progymnasmata,” p. 271; Altman, The Tudor Play of Mind, p. 47.
40. Othello, 1.1.76–170. See Heinrich F. Plett, “Shakespeare and the Ars Rhetorica,”
in Rhetoric and Pedagogy, ed. Horner and Leff, pp. 243–59, 249.
41. Sister Miriam Joseph, Shakespeare’s Use of the Arts of Language (New York:
Columbia University Press, 1947); Vickers, In Defense of Rhetoric, p. 279.
42. Mack, Elizabethan Rhetoric, pp. 1–2.
43. Diane Parkin-Speer, “Freedom of Speech in Sixteenth Century English

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

name of a Catholic priest in the history of the Jesuit mission to England,
kept as a convenient guide to England’s most wanted by the notorious
Elizabethan pursuivant and torturer Richard Topcliffe (1531–1604). The
doodle of a stick figure hanging from the gallows serves as the gleeful
marginal record of another priest’s execution.1 Topcliffe could be a char-
acter out of William Shakespeare and George Peele’s Titus Andronicus
(1590). Mutilation and dismemberment are the signatures of that play,
techniques in which, albeit on a slightly more mundane level, Topcliffe
also specialized: distending limbs on the rack, applying “the manacles”
(the English version of the strappado), and a variety of other techniques
including the use of hot tongs, bone saws, and sharp objects. Topcliffe
had, in addition, a particular predilection for torturing members of the
Society of Jesus (founded by Ignatius Loyola in 1540), who sought to
bring Counter-Reformation Catholicism to England. Officially this con-
stituted prealable or preliminary punishment insofar as it was the pre-
cursor to the execution of a capital sentence (in this case for treason),
which automatically applied to Jesuits, whose very presence contra-
vened a statute of 1584/85.2 Priests were tortured by Topcliffe, therefore,
not only for evidence that would incriminate or convict them, but
importantly also for information about Jesuit activity in the realm. Just as
the characters in Shakespeare and Peele’s play mete out their cruelty with
zeal and relish, Topcliffe similarly enjoyed his work: he had a torture
chamber installed in his living quarters at Bridewell.3 Among those he tor-
tured, by all accounts with fanatical zeal, were the Catholic poet Robert
Southwell and the Jesuit priests John Gerard and Henry Garnet; he also
interrogated Ben Jonson and Thomas Nashe regarding their scandalous
play The Isle of Dogs. Feared and loathed by his contemporaries, who
38
The Wilde Side of Justice 39
coined the word “Topcliffian” to refer to brutal excess and monstrous

reprisal,4 Topcliffe became so synonymous with an insatiable appetite for
sadistic pleasure that his nephew endeavored to rid himself of the stigma
by changing his name.5 Topcliffe emerges from the historical record bear-
ing a distinct similarity to the characters in Shakespeare’s early tragedy,
that is, gruesomely comic, deranged, a figure of lurid fascination.
It is significant that despite his notoriously grisly operations, Topcliffe
worked entirely within the legal jurisdiction of the crown, and immedi-
ately under the direction of the Queen’s Privy Council. An established
member of the gentry, he had a respectable past and close connections
to the government. He married a peer’s daughter, received patronage
from the earls of Leicester, Warwick, and Shrewsbury, and also served as
a member of Parliament on three occasions.6 Topcliffe was, to use a con-
tradiction in terms, a kind of legal avenger. While in this he may have
been more hands-on than men more advanced in the judicial hierarchy,
he was not alone. Edward Coke and Francis Bacon, along with other
members of Queen Elizabeth’s legal counsel, played an integral part in
the torture of suspected traitors in the late 1590s,7 and Bacon, in a letter
to King James in 1603, rationalized torture as a necessary part of the
judicial process of discovery.8 The key point was not that torture per se
was wrong, but only that it should be used wisely and carefully in the
service of the state. There was, of course, a fine line – indeed, sometimes
only a specious distinction – between the use of force with the authority of
the state and the zealousness of individual operatives. We know that on
one occasion at least Topcliffe fell foul of his “masters,” the Privy
Council, who deemed that he had gone too far and imprisoned him.9
That Topcliffe’s operations sometimes crossed even the widely drawn
boundary of state-sanctioned torture is instructive. Topcliffe’s zealous-
ness caused him to stray into the murky arena designated by Francis
Bacon as “wilde justice.” Bacon’s telling phrase, of course, refers specifi-
cally to revenge, the subject of his essay entitled “Of Revenge,” which
was added to his Essays or Counsels, Civill and Morall10 in the first decade
of James I’s reign as king of England: “Revenge is a kinde of Wilde
Justice; which the more Mans Nature runs to, the more ought Law to
weed it out. For as for the first Wrong, it doth but offend the Law; but
the Revenge of that wrong, putteth the Law out of Office.”11 In “wilde
justice” Bacon thus acknowledges that a significant range of practices
both legal and criminal are motivated by the endeavor to right wrong,
whether the aim (ostensibly Topcliffe’s) is the legitimate intention to
expose perceived villainy and bring culprits to justice or the extralegal
attempt to retaliate. “Wilde justice,” then, uncovers a key insight about
40 Dympna Callaghan and Chris R. Kyle
the whole gamut of operations of early modern English law and order,
in particular the problematic contiguity between legal and extralegal
reprisal. Most of Topcliffe’s operations, however, suggest the many ways
in which justice might itself be inherently excessive, that is, synony-
mous with rather than different or distinct from “wilde justice.” This
idea is generally occluded in legal discourse because “the Law” needs to
differentiate itself from the chaotic violence of extralegal reprisal. Since
the “wilde” side of justice is therefore a covert element, we deliberately
do not take the period’s understanding of justice on its own terms. Thus,
we do not seek to elucidate technical distinctions between, for example,
torture used for “discovery” and torture used to coerce confession, let
alone the well-worn distinctions between public and private
vengeance.12 Rather, the object of our inquiry is the contiguity between
“wilde justice” and “justice,” which reveals itself plainly enough in
actual cases of physical mutilation and in the drama of the period, most
especially in revenge tragedy.
It is in the context of the attempts by the Tudor and Stuart state to
gain a monopoly over retaliation for injuries and of the ideological
struggle to differentiate the state’s frequently bloody operations from
those of “wilde justice” that revenge drama becomes one of the most
popular genres on the early modern stage. There are, as we shall see,
revenge comedies as well as tragedies, and by dint of its emphasis on jus-
tice in “excess” and overkill, revenge tragedy presents the messily inter-
connected forms of both “wilde justice” and the “wilde” side of justice
in distortedly comic forms. This is nowhere more clear than in the hys-
terically retributive Titus Andronicus, where “getting even” is literalized
and parodied as grotesque mutilation.
In that play, as readers will recall, the Roman victory against the Goths
is sealed with the ritual slaying (“sacrifice”) of Alarbus, the eldest son of
Tamora, the Queen of the Goths, and serves to instigate a bloodbath in the
heart of the Roman Empire. Lavinia, Titus’s daughter, is raped and muti-
lated by Tamora’s sons, Chiron and Demetrius, who are in turn incited by
the black villain, Aaron. In the course of the play, several characters lose
limbs (Titus loses his hand), and Titus has the brothers who violated his
daughter baked into a cannibalistic pie for their mother to eat.
It is tempting to think that from the safe distance of theatrical repre-
sentation, the gallows humor of Titus is not analogous to the serious
business of state justice. However, especially in the torture, mutilation,
and martyring of people for their religious beliefs, we encounter at times
an accurate reflection of historical reality. Titus, then, reflects both the
state’s struggle to appropriate revenge and the aberrant, arbitrary, and
excessive justice alive and well in England at the time that gives rise to a
certain “horrid laughter” – precisely the kind of justice epitomized by

revenge tragedy.13
* * *
There were direct connections in Elizabethan England between litera-

ture and “wilde justice,” whether the latter is understood as (legal) judi-
cial excess or as the extravagance and outrage of (illegal) private
retribution. The playwrights Thomas Norton and Anthony Munday, the
authors of Gorbuduc14 and Fidele and Fortunio, were, for example, them-
selves dispensers of Elizabethan justice, “searchers of secrets,” who
applied “the intolerable torment of the rack” to Catholics.15 That the
play of “Rackmaster” Norton, Gorbuduc, was probably a source for Titus
Andronicus offers a disturbing but direct link between judicial torture
and the violence of the stage.16
Awareness of this very immediate context might transform our under-
standing of an important critique of state justice formulated by Titus
late in Titus Andronicus, in reference to the instigation of the iron age,
which renders the entire play a consequence of the state’s failure to
appropriate revenge and gain a monopoly on reprisal.
TITUS: Terras Astraea reliquit.

Be you rememb’red, Marcus: she’s gone, she’s fled.
Sirs take you to your tools. You, cousins, shall
Go sound the ocean, and cast your nets;
Happily you may catch her in the sea,
Yet there’s as little justice as at land:
No, Publius and Sempronius, you must do it;
’Tis you must dig with mattock and with spade,
And pierce the inmost center of the earth:
Then, when you come to Pluto’s region,
I pray you deliver him this petition:
Tell him, it is for justice and for aid,
And that it comes from old Andronicus,
Shaken with sorrows in ungrateful Rome.
Ah, Rome! Well, well; I made thee miserable
What time I threw the people’s suffrages
On him that thus doth tyrannize o’er me.
Go, get you gone, and pray be careful all,
And leave you not a man-of-war unsearched:
This wicked emperor may have shipped her hence,
And, kinsmen, then we may go pipe for justice.17
The 1590s, at least from the official point of view, were a period when
one might expect to do more than “pipe” (whistle) for justice, especially
after having gone through such appropriate mechanisms as “suffrage”
and “petition.” The increasing centralization of justice through the
Tudor regime sought to make the arbitrary violence of baronial license a
thing of the past.18 However, in the world with which Titus Andronicus
opens, responsibility for justice has been abandoned by the state and we
enter a realm of moral and judicial chaos and escalating violence where
the mortal antagonisms between Titus, the general who has valiantly
defended Rome, and the Goths is pursued without even the rules of
engagement that exist in wartime. Furthermore, enmities are exacer-
bated rather than assuaged by the “peace-time” marriages effected at the
opening of the play, especially that between Tamora and the Roman
Emperor, Saturninus. While Astraea’s desertion of the earth was well
known from Ovid’s Metamorphoses (1.150), this is a particularly resonant
iteration of the idea in an era defined by the iconography of Elizabeth I
as Astraea, the virgin prophesied by Virgil to have returned to the earth
(rather than to have abandoned it) to reestablish the Golden Age.19
There is something incongruent about the fact that it was in this
allegedly Elizabethan Golden Age that Titus is one of what R. A. Foakes
calls “the Rose spectaculars,”20 in which bloody theatrical exhibition holds
sway. As one of its earliest viewers, a French tutor in the household of
Sir John Harington, famously remarked, “le monstre a plus value que le
sujet” (the spectacle is more valuable than the subject matter).21 But with
hindsight, specifically that of Bacon’s essay on revenge, spectacle is
instructive insofar as it demonstrates, admittedly with salacious enjoy-
ment rather than moral condemnation, that revenge is the savage and
chaotic reprisal for wrong. Lavinia’s ravished and mutilated body, “lopped
and hewed” (2.3.17), is made a spectacle for much of the play in a cycle of
mimetic vengeance which begins when “Alarbus’ limbs are lopped / And
entrails feed the sacrificing fire” (1.1.146). In Titus we are presented with
rabid and rapid decimation, and there is particular emphasis on bodily
mutilation: “Give us the proudest prisoner of the Goths, / That we may
hew his limbs on a pile” (1.1.96–97). Lavinia, too, is “trimmed,” which
connotes both sexual intercourse and the preparation of meat in butchery:
AARON: They cut thy sister’s tongue and ravished her

And cut her hands and trimmed her as thou sawest.
LUCIUS: O detestable villain, call’st thou that trimming?
AARON: Why, she was washed and cut and trimmed, and ’twas
Trim sport for them which had the doing of it. (5.1.93–97)
This was a spoof of Seneca – hacked limbs take quite literally the notion
of “getting even” and in the process create staggering deformity, a per-
petual lopsidedness.22 In a motif analogous to the balance wrought by
the scales of justice, the ostensible aim of revenge was parity, the inflict-
ing of an injury equivalent to the one that was suffered. As Bacon put it:
“[I]n taking revenge a man is but even with his enemy.” However,
the pursuit of retributive equity, according to Bacon, leads to the phe-
nomenon of mimetic violence: “[V]indicative Persons live the Life of
Witches; who as they are Mischievous, So end they Infortunate.”23 Just
as the vengeful become “like witches” – that is, they become the very
image of the ill they strive to combat – justice itself operates in a
mimetic relation to the revenge it appropriates – hence the vicious circle
of violence.
The two severed heads, the dismembered hand, and the raped Lavinia,
with neither hands nor tongue, ordered to carry her father’s severed
hand between her teeth in Titus Andronicus quite literally represent
overkill, in which death itself is an insufficient remedy for perceived
wrongs (3.1.283).24 The play puns relentlessly on mutilation, especially
on “hands.” The audience first encounters Lavinia’s handlessness when
her uncle compares her with Philomela25 in describing her inability to
sew, as Philomela did, the names of her attackers:
But, lovely niece, that mean is cut from thee.

A craftier Tereus, cousin, hast thou met,
And he hath cut those pretty fingers off,
That could have better sewed than Philomel.
O, had the monster seen those lily hands
Tremble like aspen leaves upon a lute
And make the silken stings delight to kiss them,
He would not then have touched them for his life. (2.3.40–47)
Despite the complex sensuality with which both sewing and female
musicianship were sometimes associated, “the pretty fingers” and
“those lily hands” serve as a kind of rhetorical prosthesis, compelling
the audience to focus on the missing limbs. Mutilation had, of course,
been a key principle of retributive justice since the Code of Hammurabi
(c.1780 BCE), sixth king of the Amorite Dynasty of Old Babylon, who
claimed to have received the law from Shamash, the god of justice: “If a
son strike his father, his hands shall be hewn off. If a man put out the
eye of another man, his eye shall be put out. If he break another man’s
bone, his bone shall be broken.” The dispensation of this justice was
often left to the victim’s family, and it is precisely this principle of

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

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

duplication, paying back the original wrong in kind and with interest;
avenger and victim are somewhat analogous to twins who are cute in
their identical dress in childhood but become ludicrous when they per-
sist in the practice into adulthood. The province of their identity is now
a freak show because it represents the determined exhibition of simili-
tude as well as its extension and exaggeration. Thus, the mimetic
momentum of revenge toward exaggeration, repetition, and exhibition
sweeps it into the sphere of comedy.
This admixture of humor and horror was also apparent in the exhibi-
tion of public punishments.31 Before the Armada in 1588, priests were
hanged as traitors at distant Tyburn; thereafter, identified as potential
collaborators with an invasion force, they were strung up on new gib-
bets in the most public spaces all over London, including Finsbury Fields
in Holywell near the Theatre and Curtain, where William Gunter was
hanged on August 28, 1588, and William Harley on October 5, 1588.32
That is to say, there was a new attempt by the crown and by William
Cecil, Lord Burghley, and his operatives to make a spectacle of the cul-
prits and to make that spectacle as popularly available and accessible as
possible. A briefe Treatise Discovering in substance the offences, and ungodly
practices of the late 14. Traitors condemned on the 26. Of August 1588 gives
an account of these events:
Then was William Guntur convaied into Hollywell fieldes neere to

the Theator or Playhouses where maiseter sheriffe willed him to call
upon God for pardon and acknowledge his offences to hir majestie
whereat he aunswered that he would aske pardon of God, but not of
hir Maiestie, saying he had never offended her, and so he was hanged
upon a newe Jebbit prepared for him.33
In response to all this, the crowd then sang the humorous rhyme “This
man for the Pope is hanged with a rope.”34
In Titus Andronicus’s most serious consideration of mutilation, the
audience is invited in Act 3 to look again with Titus at Lavinia’s “mar-
tyred signs,” first displayed in the stage direction in 2.3: “LAVINIA, her
hands cut off and her tongue cut out, and ravished.” The word “martyred” is
a pun. Until at least the mid-seventeenth century, “martyr” was a verb
meaning to spoil or mutilate as well as a noun designating one who suf-
fers and dies for his or her faith. In terms of this latter meaning, the
word was probably best known from Foxe’s Acts and Monuments (1563),
the widely disseminated book of Protestant propaganda popularly
known as Foxe’s Book of Martyrs, which detailed the sufferings of those

who died under the murderous rule of Bloody Mary (Tudor) among oth-
ers. “Martyred,” then, had decidedly religious overtones in reference to
those who died for their faith (both Protestant and Catholic). In the
context of the scene in the play, “martyred” literally means “mutilated,”
but the word “martyred,” and therefore its double meaning, is empha-
sized by repetition at line 3.3.108, and again at line 82: “who hath mar-
tyred thee.”
Religious martyrdom itself had a disfiguring dimension. The Jesuit
Edmund Campion’s thumb was hacked from his body after his execu-
tion at Tyburn, and later divided into two and enshrined at Rome and
Roehampton.35 Jesuit Robert Parsons remarks that “the loss was quickly
discovered, but the thief could never be found.” The hangman “reluc-
tantly refused twenty pounds for another joint.”36 Indeed, the souvenir-
ing of body parts of martyrs seems to have been a common practice.
William Hart’s execution in 1583 saw the sympathetic crowd steal away
with both his clothes and various parts of his body. Heads, arms, shoul-
ders, fingers, thumbs, and even intestines were whisked away from
other executed Catholics both as relics and to prevent the state from fur-
ther defiling the bodies. As Peter Lake and Michael Questier have noted,
these practices and “handkerchief-dipping” in the blood of the executed
were “all the rage.”37 Whatever this tells us about Catholicism in
England, it also tells us about the fray that might accompany execution –
which could include, for whatever motivation, the desecration, specifi-
cally the dismemberment, of the corpse. Shakespeare may have had
such relics in mind, and given that he was the son of a glovemaker, the
sixty references to hands in Titus may indicate that hands had a
particular significance for him.38 Be that as it may, the play’s retributive
violence is connected, as it was in early modern England, with religion.
After ten years of warfare, the hero has returned to Rome,
and at this day

To the monument of the Andronici
Done sacrifice of expiation,
And slain the noblest prisoner of the Goths. (1.1.35–38)
That this killing, the first reprisal at the very beginning of the play, is an
act of specifically religious violence whose altar has been the tomb of
the Andronici suggests that the play’s meditation on justice and reprisal
is deeply entrenched in the internecine struggle of Christianity in post-
Reformation England. Alarbus’s murder is committed to expiate the
ghosts of the Andronici, the sons of Titus, who have been killed in the
war by the Goths. The latter, unsurprisingly, view this neither as an act
of justice nor as a legitimate religious rite, but as “cruel irreligious piety!”
(1.1.30) and Scythian-like barbarity: “Was never Scythia half so bar-
barous” (1.1.131). Scythia was an uncivilized region north of the Black
Sea, and it is used here to epitomize all that is wild and uncultivated.
That this act, the murder of Alarbus, instigates the subsequent murders
and mutilations in the play has further significance in light of the fact
that it is an element missing from Dutch and German versions of the
story, and thus seems to have been an element, and a pointedly religious
one, that Shakespeare and Peele sought to emphasize.39
The play focuses to a curious degree on the brutal violence that, as we
have seen, was associated with religious torture by the likes of Topcliffe,
Norton, and Munday. In the bloody banquet of Act 5, Titus’s revenge is
complete. In his desecration of commensality to celebrate newly
wrought concord, he has finally gone one better than all his enemies
and, in addition, killed Lavinia to save her from living disfigured and
disgraced:
TAMORA: Why hast thou slain thine only daughter thus?

TITUS: Not I; ’twas Chiron and Demetrius:
They ravished her and cut away her tongue;
And they, ’twas they, that did her all this wrong.
SATURNINUS: Go fetch them hither to us presently.
TITUS: Why, there they are, both baked in this pie,
Whereof their mother daintily hath fed,
Eating the flesh that she herself hath bred. (5.3.54–62)
While the cannibalistic banquet prepared by Titus reflects classical

precedent – namely, that served by Tantalus to the gods – there are also
more immediately contemporary reverberations. In Reginald Scot’s
Discoverie of Witchcraft (1584), a chapter on “The Cannibals crueltie, of
popish sacrifices exceeding in tyrannie the Jewes or Gentiles” bears the
following marginal note “Against the papists abhominable and blasphe-
mous sacrifice of the masse”:
The incivilitie and cruell sacrifices of popish preests do yet exceed

both the Jew and the Gentile: for these take upon them to sacrifice
Christ himselfe. And to make their tyrannie the more apparent, they
are not contented to have killed him once, but dailie and hourelie
torment him with new deaths; yea they are not ashamed to sweare,
that with their carnall hands they teare his humane substance, break-
ing it into small gobbets; and with their external teeth chew his flesh
and bones, contrarie to divine or humane nature; and contrarie to the
prophesie, which saith: “There shall not a bone of him to be broken”
(Psalms, 34, 20). Finallie, in the end of their sacrifice (as they say) they
eate him up rawe and swallow him into their guts everie member and
parcel of him: and last of all, they conveie him unto the place where
they bestowe the residue of all that which they have devoured that
daie. And this same barbarous impietie exceedeth the crueltie of all
others: for all the Gentiles consumed their sacrifices with fier, which
they thought to be holie.40
Like all avengers, Scot perceives the enemy as possessing the capacity for
terrifying depravity. Although ostensibly he takes the Catholic doctrine
of transubstantiation (the actual rather than the symbolic transforma-
tion of the Eucharist into the body and blood of Christ) to be nonsense,
he does suggest (though surely he cannot actually believe) that papists
are guilty of, or at least fully capable of, cannibalism. Like the banquet,
there is an analogous motif in the initial killing of Alarbus, which is
specifically referred to as a sacrifice (1.1.147) and further as an explicitly
Roman rite, a term which was in early modern English synonymous
with the Mass: “See, lord and father, how we have performed / Our
Roman rites” (1.1.144–45). This is not, however, to align the play with
either a Protestant or a Catholic ideology – in fact, the play displays an
enormously complex response to religious sectarianism – but it is to say
that mutilation and dismemberment had both judicial and religious
dimensions.41
* * *
Excess, mutilation, and “wilde justice” in early modern England were

not confined to the realm of religion and the Protestant/Catholic divide.
When Bacon wrote his essay on revenge near the beginning of the
Jacobean era, it was at a moment when there was an exponential
increase in the settling of private scores among dueling gentlemen, and
his remarks, which necessarily reflect that immediate context,42 may at
first seem a long way from the butchery of Titus Andronicus.
Uncontained, aristocratic unrest could lead (as it did in 1569 in the
rebellion of the Northern earls) to a threat to the crown, and even, as
was feared in the wake of the Armada, an allegiance with hostile powers.
In light of the threat, the 1590s, the decade in which Titus was written,
saw a renewed concern to appropriate violence to the state. Further,

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

Laud’s scorching scars.
God’s grateful sacrifice.

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

does not make them straightforwardly comic, but rather places them in
the realm of travesty. State-sanctioned mutilation was not widely uti-
lized, and by the end of the sixteenth century it appears to have been
dying out.53 But it cannot be too much emphasized that both deface-
ment and deformity as arbitrary or asymmetrical operations of justice
were pervasively accepted in early modern England. For instance, Bacon
was head of the court of Chancery, a court notorious for its irregular
application of the law. Indeed, John Selden, for this reason, referred to
Chancery as “a rouguish thing” “because it had no measure more con-
stant than the chancellor’s foot.”54 William Lambarde’s Archeion, or,
A Discourse Upon the High Courts of Justice in England (written before
1591, but first published in 1635) explains the role of the chancellor as
being to correct the written record of the law and therefore “to cancel,
deface, or make void a Record” by striking through it.55 In other words, the
chancellor’s role was to deface or mutilate the written law. Even God
Himself, according to Stephen Batman’s The Doome warning all men to
the Judgement (1581) found God avenging, among other crimes, that of
revenge itself by afflicting “deformities” upon the world:
On the Earth deformed shapes both of men, byrdes, beastes, and

fishes after which of every of these death of princes, alteration of
kingdoms, transmutations of religion, treason, murthers, thefe,
inceste, whoeredome, Idolatrie, usurie, revenge, persecution, sworde,
fyre, famine, hunger, death and damnation, presently followed.56
The idea that vengeance produces a kind of preternatural lopsidedness

or multilation is deeply embedded in early modern concepts of justice.
In fact, Bacon’s own essay “Of Deformity,” published in the 1612
expanded collection, explicitly connects deformity with revenge:
Deformed Persons are commonly even with Nature: For as Nature hath
done ill by them; So doe they by Nature: Being for the most part, (as
the Scripture saith) void of Naturall Affection; And so they have their
Revenge on Nature.57
The biblical passage quoted, Paul’s letter to the Romans, probably bore a
reasonable resemblance to the characters jockeying for power at James’s
court.58 Bacon had to exercise some caution, adding a passage about
how some deformed persons manage to overcome their otherwise inher-
ently evil natures, possibly in deference to his cousin the hunchbacked
Lord Treasurer, Sir Robert Cecil, earl of Salisbury. However, Cecil had
died a few months before the essay was published and the letter writer,
Sir John Chamberlain, considered that despite the apparent qualifica-
tion, Bacon sought to exact a measure of revenge on Salisbury for his
failure to support Bacon’s advancement at Court: “Sir Fraunces Bacon
hath set out new essayes, where in a chapter of deformitie the world
takes notice that he paints out his late little cousin to the life.”59
Deformity and justice also conjoin in Shakespeare’s revenge com-
edy Much Ado About Nothing (1598–99):60 “Seest thou not, I say, what
a deformed thief this fashion is, how giddily a turns about all the
hot-bloods between fourteen and five-and-thirty” (3.3.115–21). The
“hot-bloods” are the choleric, urban gentlemen whose aggressive mas-
culinity is all too prominent (“his codpiece seems as massy as his club”
[3.3.134]), precisely the gallants addressed both by popular fencing
manuals and by legislation designed to curb the revenge practices of
dueling.61 When the bumbling watch overhear this conversation
between the villains who have undone the virtuous Hero, they mistake
references to “deformed” fashion for allusions to a suspect: “I know that
Deformed. A has been a vile thief this seven year. A goes up and down
like a gentleman. I remember his name” (3.3.108–12); “I know him – a
wears a lock” (3.3.164). In the dueling gentleman, the “deformity” of
fashion manifests itself as a “love-lock” and elaborate curl, sometimes
ornamented with hair jewelry, the gift of a mistress. In the lower orders,
however, among these inept operatives, disfiguration is linguistically per-
formed in Dogberry’s mangled, malapropistic speech and its satire on the
inefficiency of provincial justice. Although the watch held an unpaid and
unpopular position at the low end of judicial operations, Dogberry is in a
sense inadvertently like a chancellor, in that he defaces the law by his
garbled expressions; and, like those of the chancellor, Dogberry’s opera-
tions are ultimately effective and even aligned with divine mercy
(Dogberry opposes hanging).62 The Pauline capacities of discernment with
which the watch are endowed (“What your wisdoms could not discover,
these shallow fools have brought to light” [5.1.217–18]), are comically
anticipated when Dogberry selects the handsome George Seacoal as “the
most desertless man to be constable” simply because he is “well-favored”
(3.3.8–14). The comedy ends where Titus begins, with the anticipation of
torture for the Duke’s illegitimate brother, Don John: “Think not on him
till tomorrow, I’ll devise thee brave punishments for him” (5.4.121–2).63
* * *
Sir Edward Coke noted in his commentary on Littleton in the First
Institute, “It is against reason, that if wrong be done any man, that he
thereof should be his own judge. For it is a maxime in law, aliquis non
debet esse judex in propria causa.”64 Titus reveals the conceptual and prac-
tical struggle to appropriate retaliation for injury to the state as well as
the intractable problem of extricating private revenge from the social
order. Revenge was not yet fully identified with extralegal retaliation,
nor was judicial punishment yet fully differentiated from extrajudicial
vengeance; both involved a violently lopsided process of trying to get
even. The results were, like Titus Andronicus itself, simultaneously
tragedy and travesty.
In a startling sense, the state’s execution of justice in both torture and
public punishments had a purpose not dissimilar to the purposes either
of revenge tragedy or of literature more generally. Public executions,
whipping, and the bodily mutilations of the torture chamber had, after
all, at their core the same, albeit distorted, motivations Sidney ascribes
to poetry, “to teach and to delight.”65
Notes
1. Girolamo Pollini, Historia Ecclesiastica della Rivoluzion d’Inghilterra (Douai,
1592). See Frank Kermode, The Age of Shakespeare (New York: Modern Library,
2004), p. 143.
2. House of Lords Record Office, 27 Elizabeth I, O.A. 2.
3. James Heath, Torture and English Law (Westport, CT: Greenwood Press, 1982),
p. 130; Richard Wilson, Secret Shakespeare (Manchester: Manchester
University Press 2004), p. 89; Frank Kermode observes “Monstrous reprisals
were thought to have been a deterrent, an argument the Queen seems to
have accepted, though she was not herself a particularly vindictive or sadis-
tic woman” (The Age of Shakespeare, p. 144).
4. Paul E. J. Hammer, The Polarisation of Elizabethan Politics (Cambridge:
Cambridge University Press, 1999), p. 174 n. 130; Thomas Birch, Memoirs of
the Reign of Queen Elizabeth, vol. 1 (London, 1754), p. 160.
5. Oxford Dictionary of National Biography (hereafter ODNB).
6. ODNB; P. W. Hasler, ed., History of Parliament, House of Commons 1558–1603,
vol. 3 (London: Published for the History of Parliament Trust by HMSO,
1981), pp. 513–15.
7. Heath, Torture, pp. 119, 120; John H. Langbein, Torture and the Law of Proof
(Chicago, IL: University of Chicago Press,1976), pp. 67, 68, 69, 72, 77.
8. Elizabeth Hanson, Discovering the Subject in Renaissance England (Cambridge:
Cambridge University Press, 1998), p. 31, quoting Francis Bacon, Letters and
Life of Francis Bacon, ed. James Spedding, Robert Ellis, and Douglas Heath,
vol. 3 (London, 1868–90), p. 114.
9. ODNB.
10. Michael Kiernan, ed., Sir Francis Bacon: The Essayes or Counsels, Civill and
Morall (Cambridge, MA: Harvard University Press, 1985), pp. 16–17.
11. Keirnan, Sir Francis Bacon, p. 16.
12. See Langbein, Torture and the Law, passim.
13. See Nicholas Brooke, Horrid Laughter in Jacobean Tragedy (New York: Barnes
and Noble Books, 1979).
14. Norton coauthored Gorbuduc with Thomas Sackville.
15. Wilson, Secret Shakespeare, p. 98.
16. James D. Carroll, “Gorboduc and Titus Andronicus,” Notes and Queries 51:3
(2004), 267. On Norton see Michael A. R. Graves, Thomas Norton: The
Parliament Man (Oxford: Blackwell, 1994). On Munday see ODNB; J. C.
Turner, Anthony Munday: Elizabethan Man of Letters (Berkeley, CA: University
of California Press, 1928); David Bergeron, ed., Pageants and Entertainments of
Anthony Munday: A Critical Edition (New York: Garland, 1985).
17. Titus Andronicus, 4.3.3–24. All references to the play are taken from Jonathan
Bate, ed., Titus Andronicus, The Arden Shakespeare (London: Routledge,
1995).
18. Ronald Broude, “Revenge and Revenge Tragedy in Renaissance England,”
Renaissance Quarterly 28:1 (1975), 38–58, esp. 47.
19. See F. A. Yates, Astraea: The Imperial Theme in the Sixteenth Century (London:
Routledge and Kegan Paul, 1985), and “Elizabeth as Astraea,” Journal of the
Warburg and Courtauld Institutes 10 (1947), 27–82, which explore the numer-
ous references to Elizabeth as Astraea in both the poetry and the painting of
the period. Mary Sidney, Countess of Pembroke’s poem “Dialogue between
Two Shepherds in Praise of Astraea” is but one example of the traditional pas-
toral tribute to Elizabeth.
20. Foakes thus designates Marlowe’s plays and Shakespeare’s Titus Andronicus
and Henry VI. R. A. Foakes, Shakespeare and Violence (Cambridge: Cambridge
University Press, 2003), pp. 9, 53–58.
21. Bate, Titus Andronicus, pp. 33–37.
22. On Lavinia’s rape and mutilation, see Karen Cunningham, “Renaissance
Execution and Marlovian Elocution: The Drama of Death,” Publications of the
Modern Language Association 105 (1990), 209–222; and her “ ‘Scars can Witness’:
Trials by Ordeal and Lavinia’s Body in Titus Andronicus,” in Shakespeare’s Early
Tragedies, ed. Mark Rose (Englewoood Cliffs, NJ: Prentice Hall, 1995), pp. 65–78;
Catherine R. Stimpson, “Shakespeare and the Soil of Rape,” in Shakespeare’s
Early Tragedies, ed. Rose, pp. 58–64; David Willbern, “Rape and Revenge in Titus
Andronicus,” English Literary Renaissance 8 (1978), 159–82; and Molly Smith,
Breaking Boundaries: Politics and Play in the Drama of Shakespeare and his
Contemporaries (Aldershot, Hampshire: Ashgate, 1998), p. 45.
23. Kiernan, Sir Francis Bacon, p. 17.
24. See Heather James, “Cultural Disintegration in Titus Andronicus: Mutilating
Titus, Vergil and Rome,” in Violence in Drama, ed. James Redmond
(Cambridge: Cambridge University Press, 1991), pp. 123–40; Willbern, “Rape
and Revenge,” 159–82.
25. Raped by Tereus and silenced by having her tongue cut out, Philomela sews
the name of her assailant in a sampler and is eventually transformed into a
nightingale. The story comes from Ovid’s Metamorphoses.
26. See Broude, “Revenge and Revenge Tragedy,” 51.
27. Pierre Ambroise Francois Choderios de LaClos’s Les Liasons Dangereuses
(1782); see also Matthew 13: 24–30 for the idea of cosmic justice delayed
until the Last Judgment.
28. On the coauthorship of the play, see Brian Vickers, Shakespeare, Co-author
(Oxford: Oxford University Press, 2002), pp. 148–243.
29. Katharine Eisaman Maus, Four Revenge Tragedies (Oxford: Oxford University
Press, 1995), p. 328.
30. John Kerrigan, Revenge Tragedy: Aeschylus to Armageddon (Oxford: Clarendon
Press, 1996), p. 196.
31. On executions as punishment in early modern England see Cynthia Herrup,
The Common Peace (Cambridge: Cambridge University Press, 1987), esp.
ch. 7; Katherine Royer, “Dead Men Talking: Truth, Texts and the Scaffold in
Early Modern England,” in Penal Practice and Culture 1500–1900, ed. Simon
Devereaux and Paul Griffiths (Houndsmills, Basingstoke: Palgrave
Macmillan, 2004), pp. 63–84; Peter Lake with Michael Questier, The
Archbishop’s Lewd Hat (New Haven, CT: Yale University Press, 2002), ch. 7;
Anne Dillon, The Construction of Martyrdom in the English Catholic Community,
1535–1603 (Aldershot, Hampshire: Ashgate, 2002); J. A. Sharpe, Judicial
Punishment in England (London: Faber and Faber, 1990).
32. Thomas Whitfield Baldwin, William Shakespeare Adapts a Hanging (Princeton,
NJ: Princeton University Press, 1931), p. 30.
33. Baldwin, William Shakespeare, p. 33.
34. Baldwin, William Shakespeare, p. 33.
37. Lake and Questier, The Archbishop’s, p. 248.
38. Albert Tricomi, “The Aesthetics of Mutilation in Titus Andronicus,” in
Shakespeare’s Early Tragedies, ed. Rose, pp. 31–42. Tricomi notes: “In a play
preeminently concerned with the mutilation of the human body, Titus
makes nearly sixty references, figurative as well as literal, to the word ‘hands’
and eighteen to the word ‘head’ ” (p. 31). Tricomi’s reading treats these refer-
ences as part of the play’s rhetorical strategy, as copia, “figures of speech
which saturate the play” (p. 31), rather than as elements of visual spectacle.
39. Fredson Thayer Bowers, Elizabethan Revenge Tragedy 1587–1642 (Princeton,
NJ: Princeton University Press, 1940), p. 110.
40. Quoted in Richard Marienstras, New Perspectives on the Shakespearean World,
trans. Janet Lloyd (Cambridge: Cambridge University Press, 1985), p. 56.
41. See Bate, Titus Andronicus, p. 19; Samuel Kliger, The Goths in England
(Cambridge, MA: Harvard University Press, 1952; rpt. 1972), pp. 33–34.
42. Kiernan, Sir Francis Bacon, p. xxv.
43. Francis Barker, “A Wilderness of Tigers: Titus Andronicus, Anthropology, and
the Occlusion of Violence,” in The Culture of Violence: Essays on Tragedy and
History, ed. Francis Barker (Chicago, IL: Chicago University Press, 1993),
pp. 43–206. For a critique of Barker see Foakes, Shakespeare and Violence,
pp. 15–16.
44. On punishment in early modern England see Devereaux and Griffiths, Penal
Practice; Sharpe, Judicial Punishment; Lake and Questier, The Archbishop’s,
chs. 1, 9, 12; and J. M. Beattie, Crime and the Courts in England 1660–1800
(Princeton, NJ: Princeton University Press, 1986).
45. ODNB, “Jonson.”
46. For the details of Prynne’s trials see Documents Relating to the Proceedings
Against William Prynne in 1634 and 1637, ed. S. R. Gardiner (Camden Society:
new series 18, 1877).
47. The authors are grateful to Jason Peacey for a discussion of this subject.
48. Gardiner, Documents.
49. On the rarity of nose-slitting as a punishment see Martin Ingram, “Shame

and Pain: Themes and Variations in Tudor Punishments,” in Penal Practice,
ed. Devereaux and Griffiths, p. 46.
50. David Cressy, Agnes Bowker’s Cat (Oxford: Oxford University Press, 2000),
p. 221.
51. Cressy, Agnes Bowker’s Cat, p. 229.
52. William M. Lamont, Marginal Prynne (London: Routledge and Kegan Paul,
1963), ch. 6.
53. Ingram, “Shame and Pain,” p. 46.
54. Quoted in The Mirror of Justice: Literary Reflections of Legal Cases, ed. Theodore
Ziolkowski (Princeton, NJ: Princeton University Press), p. 170.
55. Quoted in Ziolkowski, The Mirror of Justice, p. 171.
56. Lily B. Campbell, “Theories of Revenge in Renaissance England,” Modern
Philology 28:3 (1931), 283.
57. Kiernan, Sir Fancis Bacon, p. 133. Italics in original.
58. This was a diatribe against men who leave off “the natural use of the
woman”: “being fulled with all unrighteousness, fornication, wickedness,
covetous, maliciousness, full of envy, murder, debate, deceity, malignity;
whisperers” (Romans 1:29).
59. N. E. McClure, ed., The Letters of John Chamberlain, vol. 1 (Philadelphia, PA:
American Philosophical Society, 1939), p. 397.
60. Linda Anderson, A Kind of Wild Justice: Revenge in Shakespeare’s Comedies
(Newark, DE: University of Delaware Press, 1987).
61. Dympna Callaghan, ed., Romeo and Juliet: Texts and Contexts (Boston, MA:
Bedford St. Martins, 2003), pp. 194–200, 208–44.
62. Broude points out that the watch is an instance when private citizens work
for the state, thus further complicating the distinction between public and
private justice (“Revenge and Revenge,” p. 48). See also Lorna Hutson,
“Rethinking the ‘Spectacle of the Scaffold’: Juridical Epistemologies and
English Revenge Tragedy,” Representations 89 (2005), 30–58.
63. Stephen Greenblatt, Walter Cohen, Jean E. Howard, and Katharine Eisaman
Maus, The Norton Shakespeare (New York: Norton, 1997), p. 1384.
64. Sir Edward Coke, The First Part of the Institutes of the Laws of England, or a
Commentary upon Littleton (London, 1628), section 141a.
65. Broude, “Revenge and Revenge Tragedy,” p. 50.
4
“Like to a Tenement”:
Landholding, Leasing, and
Inheritance in Richard II
William O. Scott
A recent description of the rules of succession to the throne in modern

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

It were a shame to let this land by lease;
58
Landholding, Leasing, and Inheritance 59
But, for thy world enjoying but this land,

Is it not more than shame to shame it so?
Landlord of England art thou now, not king.
Thy state of law is bondslave to the law. (109–14)
One question here is just what Gaunt is comparing to the leasing of

land. Though Shakespeare does not specify the object of this compari-
son, in Gaunt’s analogy the leasing of property seems to resemble
Richard’s means of raising cash by farming out the privilege of tax col-
lection to his supporters. Details of such a transaction are given in the
early seventeenth-century anonymous work Thomas of Woodstock, in
which Richard signs a document related to tax farming which provides
that “These gentlemen here . . . all jointly here stand bound to pay your
majesty, or your deputy, wherever you remain, £7,000 a month for this
your kingdom. For which your grace, by these writings, surrenders to
their hands all your crown lands, lordships, manors, rents, taxes,
subsidies, . . . and all other duties that is, shall, or may appertain to the
King or crown’s revènues.”3 Thus, although Richard is still nominal
owner of the realm, he has leased out the use of it to the tax farmers,
who function as tenants.4 Commenting similarly on Shakespeare’s lines,
Andrew Gurr says, “A ‘tenement’ was a tenancy, a property used but not
owned. . . . Gaunt is fusing the concept of tax farming with debasement
of landownership.”5 Yes, and just what sort of debasement is a matter for
further examination.
In any case, for Gaunt this misuse of the national property compro-
mises Richard’s tenure as hereditary monarch; just before this, he
declares,
Oh, had thy grandsire with a prophet’s eye

Seen how his son’s son should destroy his sons,
From forth thy reach he would have laid thy shame,
Deposing thee before thou wert possessed,
Which art possessed now to depose thyself. (104–08)
Abuses of what the king possesses – both property and kingship –

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

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

demesne land, with displacement of families who might once have pos-
sessed copyholds.13 For these reasons, the very idea of leasing might well
have aroused controversial associations, quite apart from what Gaunt
makes of it.
Of course, Gaunt’s actual complaint against Richard’s tax farming is
not that he is exercising too much power but the contrary, that such a
transaction gives undue influence to the lessees. Moreover, Gaunt, the
wealthiest man in England after the king, is hardly an advocate for ten-
ant farmers. Rather, he and especially his brother York speak for the
legitimating value of custom (which figures in York’s language as a right
of time and thereby of the nobility), and custom can cut many ways.14
Customary rents and fines limited the profits of landlords and gave an
economic windfall to tenants with rising crop prices, until the very
restraints of custom moved landlords to press for conversion to leases;
however, insofar as custom remained effective, it helped tenants in their
resistance to such conversion. On the level at which Gaunt and York
argue, custom could have varied results too. It would assert the right of
inheritance for the nobility against royal interference, but on the basis
of equal protection for royal legitimacy. The separation, through tax
farming, of ownership of the realm from its use, connected in this rea-
soning with the breach of custom in leasing, would also be an abuse of
royal power that ultimately weakened and discredited the customary
basis of kingship. Custom is supposed to moderate the contests of
power, whether of king against nobles or arguably of tax farmers (if they
were allowed at all) against king. In the view that the noblemen try to
present, then, self-discipline by respect for custom would preserve
power by inhibiting transactions that would be ultimately ruinous to
that power.
Gaunt nostalgically views England’s past as devoid of struggles. In his
idealized version, the description of England as an “other Eden” and
“This blessed plot, this earth, this realm” and as “This nurse, this teem-
ing womb of royal kings” (2.1.42, 51–52) suggests unhistorically a fecun-
dity, both agrarian and human, beyond needs for tillage, calculation, or
struggles for ownership. As James E. Berg says, the speech expresses “the
values of an agrarian economy,” portraying the land as “real” in a
vividly particular (as well as legalistic) sense.15 The cause of all the pres-
ent internal conflict is simply the folly of the current ruler.
Of course, these noblemen are themselves very much implicated in
ethical and political struggles. Gaunt is torn between his sister-in-law’s
clamor for vengeance for her husband’s murder and his fealty to the
king, and again between partiality for his son and the advice he must
give for banishment.16 York too finds his sense of duty stretched by
Richard’s decisions that wrong Bolingbroke. But Bolingbroke most of all
gives the lie to nostalgia for harmony: he appeals to a chivalric form of
combat to strike indirectly at Richard, making the customary partisan.
For all his idealization of kingship, even Richard sometimes thinks in
property terms, to Bolingbroke’s disparagement. In recounting
Bolingbroke’s “courtship to the common people,” his kneeling and doff-
ing of his bonnet to draymen and oyster wenches, Richard thinks of him
as conducting himself “As were our England in reversion his” (1.4.24–36).
The OED defines “in reversion” as “conditional upon the expiry of a grant
or the death of a person” and the single word as “The return of an estate
to the donor or grantor, or his heirs, after the expiry of the grant”; B. J.
and Mary Sokol, citing this passage, mention metaphorical usages
“concerned with anticipated or conditional possession” (s.v. “Reversion”).
Richard thinks of his kingship as a firm possession rather than such a
conditional grant, even if for life – despite the irony, late in the play, that
first his estate expires and then his life.
Control over inheritance was one important feature of freeholds on
property, and also of the stronger kinds of copyhold and leasehold. In
addition, the high nobility in Edward III’s reign, who held their property
directly from the king, adopted practices that assured inheritance by
separating ownership of their estates from management or use of them:
one was “enfeoffment to use,” delegation of management to feoffees or
trustees. On the nobleman’s death, “his feoffees remained in control,
and the king had no right to claim wardship of the estates during the
period of vacancy before the heir rendered homage”; thus, a legal fiction
of trusteeship maintained control of estates pending transfer to the
heirs.17 Another device was entailment, specification of the precise suc-
cession of land and title. Some ironies about these practices remain out-
side Shakespeare’s story, but the habit among kings of seizing estates on
any pretext whatsoever might be comparable to Richard’s treatment of
Gaunt’s title and land. If one considers Richard’s act of confiscation a
seizure by escheat of a traitor’s goods, it fails to meet the criterion
because Gaunt’s admonishment of Richard had not gone as far as trea-
son, nor was Bolingbroke proclaimed traitor.18 And, of course, without
much choice in the matter, Richard will eventually adopt Bolingbroke as
heir.
One category of royal possession was treated differently in the minds
of the nobility and Parliament than others: the royal demesne or crown
lands. Since these were owned outright by the king himself, he could
64 William O. Scott
farm out or lease their administration to the highest bidder or to a

favorite.19 The wealth of this demesne could be a reason for Parliament
not to grant taxes, as at Richard’s accession; the maxim was that “the
king should live of his own” (including also taxes and any other income
to which he was entitled).20 The maxim also seemed to imply that royal
demesne land ought not to be sold. Ironically, though, Queen Elizabeth
made extensive sales of crown lands, especially to finance military activ-
ity in the 1590s.21 The crown lands are not distinguished from other
sources of income as Shakespeare treats the situation – Richard gives up
his “manors, rents, revenues” along with all the rest (4.1.213) – but their
special role was of some current importance. Both Richard and Elizabeth
used the costs of war to justify their need for revenue, but Richard also
acknowledged the expenses of a lavish court (1.4.43–44), and he seized
Gaunt’s wealth on a pretext rather than turn his own possessions into
cash as Elizabeth did. Yet Elizabeth’s sales for immediate benefit also
caused concern, because they reduced the crown’s revenue base and
therefore the possibility of long-term income.22 Even she became so con-
cerned about uncontrolled and unrecorded leases and other transac-
tions, under her signature or affixed with the Great Seal, that she took
measures to control access to the Great Seal for bills “brought from the
Commissioners for leases [of crown lands].”23 Although Elizabeth was
obviously much more competent in money management and in other
aspects of rule, her sales of land perhaps showed just a touch of Richard
in her short-term thinking; however, she learned the need to rein in the
land deals by her agents, if only the better to control them herself.
James R. Siemon has pointed out the continuing emphasis on prop-
erty in the middle and later parts of the play: the “insistent economic
inflections” of the rebels’ complaints; the assurance that Bolingbroke is
coming “But for his own” (2.3.149) – where “own” means “property
assumed as absolute, self-evident possession, not the reciprocal issue of
kinship alliance or the dependent creature of ‘royalties,’ ‘tenure,’ or any
such feudal or monarchical grant and qualification”; and Bolingbroke’s
offers of patronage rewards to his followers and even some opponents.24
In contrast, Richard himself mainly dwells on figurative and symbolic
aspects of possession, as when he salutes the earth and expends pathos
on the wounds it sustains from the rebels’ warhorses, and he makes
much of kingship as his God-given due.25 But at two points in the depo-
sition scene his words allow of a property-law reading as well as the
other meanings they bear. Of these, the second is the simpler. When
Bolingbroke commands, “Go some of you, convey him to the Tower,”
Richard answers, “O, good! ‘Convey’? Conveyers are you all, / That rise
thus nimbly by a true king’s fall” (4.1.317–19). Gurr says of this,

“Richard develops the principal sense of ‘convey’ as ‘to escort’ with its
two other meanings, ‘to transfer the title to property’, and ‘to steal.’ ”26
Richard juxtaposes these meanings in an effective comment on the
emptiness of the formal abdication in which he has just been forced to
participate.
His other equivocal legalism is at once more elusive and more sweep-
ing in its implications. When told that he must resign, he asks for the
crown and first enacts a ritual of his own:
Here, cousin, seize the crown.

Here, cousin,
On this side my hand, and on that side thine.
Now is this golden crown like a deep well
That owes two buckets, filling one another,
The emptier ever dancing in the air,
The other down, unseen, and full of water.
That bucket down and full of tears am I,
Drinking my griefs, whilst you mount up on high. (4.1.182–90)
He has two token victories in this playlet: when he characterizes

Bolingbroke as an empty bucket, and before that when he says three
words, “seize the crown,” that are among the ones that Bolingbroke
would least want to hear spoken explicitly. (Of course, Richard immedi-
ately endows them with an “innocent” meaning.) In a technical reading
of his language, the word “seize” had legal associations through its cog-
nate term “seisin.” Two of the senses of “seisin” are marked by the OED
as primarily fifteenth century and as having shaded into meanings of
“seize”: “To invest with the seisin of property; to put in possession” and
“To confiscate (property).” A. W. B. Simpson’s explanation of “seisin”
gets at the ironies of Richard’s usage: “Titles are better or worse accord-
ing to the age of the seisin upon which they are based, and even a very
recent (and perhaps transparently wrongful) seisin is to some extent
protected. Thus any person who is seised of land has a protected interest
in that land, good against all but those who have a title based on an
older seisin.”27 With no other choice, Richard invites a transparently
wrongful seisin, against which he tacitly can place his older claim.
However, the connections with possession and confiscation alike
make a harder notion for modern interpreters of earlier legal thinking.
Describing the conditions under early feudalism, J. H. Baker says that
“seisin,” or “possession as a feudal tenant,” “originally was associated
66 William O. Scott
with the act of homage which clinched the lord’s acceptance of his
man.” Further, if the lord somehow received two men’s homage for the
same land, one of them had a right to some other land of like value, but
“the claim was essentially contractual: there was no question of upsetting
seisin by reference to some more abstract notion of title.” Finally, “The
tenant was seised of the land, and the lord was seised of the tenant’s
services, but neither of them ‘owned’ the land in any absolute sense.”28
These strict qualifications of ownership certainly do not answer to
Richard’s strong view of the rightness of his title. But in the question of
“seising” or “seizing” the crown, they may correspond to a strangely
almost-schizophrenic attitude that Richard seems to have toward
de facto possession. He expresses this attitude in his self-pitying remarks
before the abdication,
God save the King! Will no man say amen?

Am I both priest and clerk? Well then, amen.
God save the King, although I be not he;
And yet, amen, if heaven do think him me. (4.1.173–76)
Yet he is more critical of himself afterward:
if I turn mine eyes upon myself,

I find myself a traitor with the rest;
For I have given here my soul’s consent
T’ undeck the pompous body of a king,
Made glory base and sovereignty a slave,
Proud majesty a subject, state a peasant. (4.1.248–53)
He has colluded in an abdication that is exactly contrary to his abso-

lutist beliefs about kingship – indeed, he has obliged Bolingbroke by
making the offer unasked. In part, his absolutism actually promotes his
renunciation inasmuch as, when he is forced to confront the realities of
power, he yields to their stark divergence from his idealization. Likewise
the practice of seisin, while bracketing the question of absolute right,
grants an advantage to the power realities of possession, in this
case secured by Bolingbroke. By this point in the play, Richard’s double
vision of the politico-juridical situation informs an audience’s double
vision of the realpolitik of unrightful possession of the throne, and
therefore of self-divisions within the subjects. Throughout, absolutist
doctrine thus comes up against the obstacle of the de facto, the opposing
or limiting force. In abdicating, Richard washes away with his own tears
the anointing balm that he had said not all the water in the rough rude
sea could remove.
On his deathbed, Gaunt complains in the language of property of the
damage to England in Richard’s rule:
A thousand flatterers sit within thy crown,

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

erty, and, with a perspective that differs from Gaunt’s, they look to the
king for this action against the magnates.
Richard himself acknowledges his waste of hours as king when he
reflects in prison on his past. Now a critic of music that fails to keep time,
he admits that “for the concord of [his] state and time” he had not had
the same ear: “I wasted time, and now doth time waste me” (by forcing
him to expend tears [5.5.42–54]). The property-law sense of “waste”
would be questionable here, but perhaps still the active quality of its
meaning is pertinent: one could read something like “to destroy; to ruin;
to desolate; to wear away” for both uses of the word in the line, giving a
symmetry of meaning (with also the usual meaning of “squander” for
the waste of time).32 Richard achieves a truer perception, then, if he rec-
ognizes outright that he actually was destructive enough, as York warned,
to “take from Time / His charters and his customary rights” (2.1.195–96).
Such attention as this play gives to the legal status of property is rare;
the closest analogues lie in the details of tax farming in Woodstock and in
discussions of Alexander Iden’s freehold and of the Duke of Suffolk’s
enclosure in 2 Henry VI (1590–92; 4.10.18–23; 1.3.23–39).33 King Lear
tries to treat his whole kingdom as ordinary property in making a “retire-
ment contract” as commoners did, but he is left without either power or
income.34 When issues of property and customary rights figure in rebel-
lions, censorship dictates their omission, and sometimes the rebels are
depicted as illogical or clownish.35 Clearly such topics are potent.
Although this reading of Richard II has taken as its model the arguably
materialistic operations of land law, such restrictiveness alone could be
too limiting: there may be analogies between attitudes toward real prop-
erty and attitudes toward other possessions or less tangible advantages
in which people have valid and vested interests. Citing cases in which
monopolies given by Queen Elizabeth deprived people of the use of
their property or the practice of their trade or craft, and the injured sued
and won, J. H. Hexter concludes that “a man’s occupation is his property
by inheritance or lawful acquisition” and that, in the belief of many,
“the law favored property against mere power, that it supported men’s
right to hold what custom and their labor made their own.”36 In this
context, he mentions copyhold tenure of land, which was eventually
given common-law protection. Thus, perhaps, the controversial notion
of selfhood can be carefully defined for the sixteenth century through
one’s inherited or lawfully acquired status, possessions, and skills; at
least, inversely, Richard feels that the loss of his title and possessions
amounts to a loss of selfhood, indeed of a face in the mirror.
Even within the received doctrine that legitimate kingly rule is God
given, the terms and practice of property law and ownership or posses-
sion help to define contesting views in Richard II of the fertile ground of
England and of its kingly nurturing. Though Richard pushes to the
utmost the notion of absolute right as sanctioned by God, the peculiar-
ities of law that allow for severance of judgments about possession and
right correspond to the remarkable passiveness with which he confronts
that severance in his own loss of rule. Gaunt, for all his deference to
God’s position as sole judge of kings and his insistence that the king
should be above the law, treats royal possession as distinctly conditional:
it confers obligations on the king (like the ones laid on a tenant not to
commit waste on the land). Gaunt even imagines a kingly forebear judg-
ing the present one. Yet he indulges too in an obviously idealized vision
of a past without power struggles. York speaks for the moderating force
of customary possession and obligation but cannot invoke it success-
fully to mediate contests. Even the statements of the ideal in the play
smack of contention. For the audience, then, who knew of other con-
tests of ownership and power in their own time, the play renews ques-
tions of struggle and its customary modulation.
Notes
This essay is an abridged, updated version of an article that appeared as
“Landholding, Leasing, and Inheritance in Richard II,” Studies in English Literature
42 (Spring 2002), 275–92. Material from that version is reprinted here with per-
mission.
1. Vernon Bogdanor, The Monarchy and the Constitution (Oxford: Clarendon
Press, 1995), p. 42. This means that male heirs have priority over females, and
that primogeniture rules among males; he contrasts the Salic law, which
barred succession by females in France, and the modern Swedish situation,
which treats females and males equally.
2. William Shakespeare, Richard II, 2.2.195–99, in The Complete Works of William
Shakespeare, 5th ed., ed. David Bevington (New York: Pearson Longman,
2004). Subsequent references are to this edition.
3. Thomas of Woodstock, 4.1.181–91, ed. Peter Corbin and Douglas Sedge
(Manchester: Manchester University Press, 2002); see also the editors’ com-
ment, p. 7, identifying this type of agreement with Gaunt’s allusion to “rotten
parchment bonds” (Richard II, 2.1.64). Citing numerous linguistic examples,
Macdonald P. Jackson argues that Woodstock dates from the early seventeenth
century and is probably the work of Samuel Rowley; see “Shakespeare’s Richard II
and the Anonymous Thomas of Woodstock,” Medieval and Renaissance Drama in
England 14 (2001), 17–65. Jackson finds no precedent in the sources of
Shakespeare’s play for the idea of Richard as landlord, and he takes both that
and the reference to the “pelting farm” to be Shakespeare’s inventions (52, 54).
70 William O. Scott
4. The use of blank charters to create forced loans, which is sometimes read into
Gaunt’s various complaints, is properly separate from the leasing practice
that is described here: thus Richard first announces that he is farming the
realm, but then that “If that come short” for his revenue needs he will resort
to the blank charters (1.4.45–51).
5. Andrew Gurr, ed., Richard II (Cambridge: Cambridge University Press, 1984),
p. 87. This meaning of “tenement” accords with the legal terminology of
Richard’s time, according to W. F. Bolton, “Ricardian Law Reports and Richard II,”
Shakespeare Studies 20 (1988), 62; and Dennis R. Klinck, “Shakespeare’s
Richard II As Landlord and Wasting Tenant,” College Literature 25:1 (Winter
1998), 27, rept. in Un-disciplining Literature, ed. Kostas Myrsiades and Linda
Myrsiades (New York: Peter Lang, 1999).
6. Most of what follows – a highly condensed version of a complex subject –
comes from Eric Kerridge, Agrarian Problems in the Sixteenth Century and After
(London: Allen and Unwin, 1969), pp. 32–64. See also R. W. Hoyle, “Tenure and
the Land Market in Early Modern England: Or a Late Contribution to the
Brenner Debate,” Economic History Review 2nd ser., 43:1 (1990 1–20); E. B. Fryde,
Peasants and Landlords in Later Medieval England (New York: St. Martin’s Press,
1996); and B. J. Sokol and Mary Sokol, Shakespeare’s Legal Language: A Dictionary
(London: Athlone Press, 2000), esp. s.v. “Lease” and “Copy.” (I would not con-
test the Sokols’ statement that Shakespeare does not refer directly to copyhold.)
7. One of the nastier deeds of which landlords were suspected in the 1590s was
sending tenants off to war in hopes that, if they were killed, the lords could
collect entry fines upon replacing them. See I. A. A. Thompson, “The Impact
of War,” in The European Crisis of the 1590s: Essays in Comparative History,
ed. Peter Clark (London: George Allen & Unwin, 1985), p. 276.
8. Ellen Meiksins Wood, The Origin of Capitalism: A Longer View (London: Verso,
2002), p. 101. Wood considers that conversion of copyholds to leases was not
simply elective by landowners but was driven by the imperatives of “compet-
itive standards of productivity” that threatened the survival of less-productive
farms, and that “By the early modern period, even many customary leases in
England had effectively become economic leases of this kind” (pp. 102–03).
9. Of the lease for term of years, as contrasted with life tenancy, A. W. B.
Simpson says, “a lease for years was not conceived of as creating a tenurial
relationship between lessor and lessee at all”; see A History of the Land Law,
2nd ed. (Oxford: Clarendon Press, 1986), p. 73. Likewise J. H. Baker:
“Whereas the unit of feudal ownership was the holding for life, and the
hereditary fee was of perpetual or indeterminate duration, the letting for
years began not as a family interest but as a temporary financial interest. Its
principal use was to secure a loan of money”; An Introduction to English Legal
History, 3rd ed. (London: Butterworths, 1990), p. 338. See also Sokol and
Sokol, Shakespeare’s Legal Language, p. 202.
10. Hoyle, “Tenure,” 1–20. He also provides the suggestions about perceived
advantages of such conversions for both parties, under earlier economic
conditions. On the “Brenner debate” whether these conversions and other
developments, viewed as preparing the development of capitalism in agri-
culture, were brought about by application of the superior power of land-
lords as a social class, by demographic forces, or by economic forces, see my
full article, “Landholding, Leasing, and Inheritance in Richard II,” Studies in
English Literature 42 (Spring 2002), 288 n. 8.
11. John Hatcher, “English Serfdom and Villeinage: Towards a Reassessment,”

Past and Present 90 (February 1981), 18. Hatcher is describing a rationale, in
the thirteenth and fourteenth centuries, for conversion of customary ten-
ancy into leaseholds on failure of inheritance.
12. Fryde, Peasants and Landlords, pp. 272–73. Annabel Patterson cites Harrison’s
Description of England on “the dailie oppression of copiholders,” pretexts for
forfeiting their tenures, pressure to shorten terms, and increases in rents and
fines to use up all their income; see Reading Holinshed’s Chronicles (Chicago
IL: University of Chicago Press, 1994), pp. 82–84.
13. On these changes as facilitating evictions and enclosures, see Fryde, Peasants
and Landlords, pp. 197, 272–73. Wood says that “enclosure meant not simply
a physical fencing of land but the extinction of common and customary use
rights on which many people depended for their livelihood” (Origin of
Captalism, p. 108). Enclosure is discussed in relation to Richard II by James R.
Siemon, “ ‘Landlord Not King’: Agrarian Change and Interarticulation,” in
Enclosure Acts: Sexuality, Property, and Culture in Early Modern England,
ed. Richard Burt and John Michael Archer (Ithaca, NY: Cornell University
Press, 1994), pp. 17–33; and in Siemon, Word against Word (Amherst, MA:
University of Massachusetts Press, 2002), pp. 119–36. The contribution of
sixteenth-century inflation to enclosure is related to the play by James E. Berg,
“ ‘This Dear, Dear Land’: ‘Dearth’ and the Fantasy of the Land-Grab in Richard
II and Henry IV,” English Literary Renaissance 29:2 (Spring 1999) 225–45. Berg
says that land is increasingly “a tool of narrowly economic production” (232).
14. A general argument for the economic and social force of custom in protect-
ing the position of smallholders and other persons of modest status is made
by E. P. Thompson, Customs in Common (London: Merlin Press, 1991),
pp. 97–184. But one can also turn the argument another way, specifically in
relation to customs such as inheritance of copyhold land as presided over by
the manorial courts: “Manorial customs tied the lord’s hands very consider-
ably, and most lords probably submitted to the restraint, just as kings
submitted to their own law; their power was more secure for being
regularised” (Baker, An Introduction, p. 263). At the same time, though, in
using the word “charters” (Richard II, 2.1.196), York invokes a more securely
entrenched power: the word is associated with freeholds, in contrast to
copyholds (Berg, “This Dear, Dear Land,” 236).
15. Berg, “This Dear, Dear Land,” 239.
16. These conflicts are perceptively discussed by James R. Siemon, “ ‘Subjected
Thus’: Utterance, Character and Richard II,” Shakespeare Jahrbuch 126 (1990),
69–71; and Siemon, Word against Word, pp. 149–52. In Siemon’s Bakhtinian
analysis, the Duchess and Gaunt try to reckon with the organized discourses
of “kinship-honor” and religiously sanctioned royal absolutism.
17. W. M. Ormrod, The Reign of Edward III (New Haven, CT: Yale University Press,
1990), pp. 113–14.
18. The inadequacy of treason as a ground is discussed by Jack Benoit Gohn,
“Richard II: Shakespeare’s Legal Brief on the Royal Prerogative and the
Succession to the Throne,” Georgetown Law Journal 70:3 (February 1982)
958 n. 83.
19. B. P. Wolffe, The Royal Demesne in English History (London: George Allen and
Unwin, 1971), pp. 25, 61.
20. Wolffe, The Royal Demesne, pp. 54, 46–47.
72 William O. Scott
21. R. W. Hoyle, “Introduction: Aspects of the Crown’s Estate, c. 1558–1640,” in

The Estates of the English Crown, 1558–1640, ed. R. W. Hoyle (Cambridge:
Cambridge University Press, 1992), p. 29. See also in the same volume
Madeleine Gray, “Exchequer Officials and the Market in Crown Property,
1558–1640,” pp. 116–17.
22. Hoyle, Estates, p. 21.
23. Calendar of State Papers, Domestic, 1592, no. 73 (February). See also William O.
Scott, “Contracts of Love and Affection: Lear, Old Age, and Kingship,”
Shakespeare Survey 55 (2002), 36–42.
24. Siemon, “Subjected Thus,” pp. 75–78, and Word, pp. 161–67.
25. For divine designation as one of the historical bases for claiming the throne,
see Gohn, “Shakespeare’s Legal Brief,” 949, and his references.
26. Gurr, Richard II, p. 149.
27. Simpson, History of Land Law, p. 88.
28. Baker, An Introduction, pp. 262–63.
29. Gurr, Richard II, p. 89; Gohn, “Shakespeare’s Legal Brief,” 957.
30. Klinck, “Landlord and Wasting Tenant,” 27.
31. Klinck gives the instance of the felling of trees on leasehold property as a
form of waste (“Landlord and Wasting Tenant,” 30). One ought to contrast
the beneficial trimming advocated by the gardeners.
32. These meanings are taken from Alexander Schmidt’s Shakespeare-Lexikon. He
cites the line for both meanings without giving details; presumably he means
“squander” for the first and “destroy,” etc., for the second. For this passage as
continuing the charges by York, Gaunt, and the Gardener, see Robert L.
Montgomery Jr., “The Dimensions of Time in Richard II,” Shakespeare Studies
4 (1968) 78–79.
33. For controversy over Iden’s freehold, see Scott, “Landholding, Leasing,”
pp. 290–91 n. 34.
34. See Scott, “Contracts of Love.”
35. See the discussions of Jack Straw, Heywood’s 1 Edward IV, and Sir Thomas More
in Scott, “Landholding, Leasing,” 285–86. A further discussion of clownish
elements in the rebellion in 2 Henry VI is Craig A. Bernthal’s “Jack Cade’s
Legal Carnival,” Studies in English Literature 42 (Spring 2002), 259–72. On
censorship of Sir Thomas More and carnivalization in Jack Straw, see Simon
Hunt, “ ‘Leaving Out the Insurrection’: Carnival Rebellion, English History
Plays, and a Hermeneutics of Advocacy,” in Renaissance Culture and the
Everyday, ed. Patricia Fumerton and Simon Hunt (Philadelphia: University of
Pennsylvania Press, 1999), pp. 299–300, 302. Janet Clare takes the omissions
in Jack Straw as a sign of censorship; see her “Art Made Tongue-Tied by
Authority”: Elizabethan and Jacobean Dramatic Censorship, 2nd ed. (Manchester:
Manchester University Press, 1999), pp. 59–60.
36. J. H. Hexter, “Property, Monopoly, and Shakespeare’s Richard II,” in Culture
and Politics from Puritanism to the Enlightenment, ed. Perez Zagorin (Berkeley,
CA: University of California Press, 1980), pp. 15–16. Examples of such
monopolies are sale of playing cards, registration of insurance policies, and
manufacture of salt (in which case real property, land with salt pits, is made
useless).
5
Cast out of Eden: Property and
Inheritance in Shakespearean
Drama
Nancy E. Wright and A. R. Buck
Conflicts over property occur in courtly, urban, and rural settings in

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

of inheritance and private property
In 2 Henry VI one of Jack Cade’s followers complains about the conse-

quences of social hierarchy and status: “It was never merry world in
England since gentlemen came up” (4.2.6–7). Gentlemen and nobles no
longer recognize that property is a basis not only of their elite social status
and privileges but, more important, of their obligation to provide for the
less fortunate. The deterioration of the social relationship between
the poor and great landowners is revealed by the dismissive response
of the nobles to a petition presented by rural laborers “Against the Duke
of Suffolk, for enclosing the commons of Melford” (1.3.20–22). The peti-
tion challenges the duke’s extinguishment of their customary use rights
to land. Commons, which included open fields as well as waste and for-
est, were areas of land in which many different people held property
interests. Game animals within a forest, for example, were the property
of the king and manorial lords, as were the trees and the land itself;
however, the local community held common use rights to the land,
where they could graze animals and gather furze, peat, and other
resources. Enclosure disrupts these property relationships by transform-
ing common lands into the private property of Suffolk, a noble
landowner who holds exclusive proprietary rights.3 Jack Cade uses griev-
ances about enclosure and private property to unite “thrifty honest
men” (4.2.186), who labor in the city and the countryside, in a rebellion
against nobles and gentlemen. He urges, “you that love the commons,
follow me” (4.2.183). This rally cry aptly expresses the twin causes of his
rebellion; the noun “commons” denoted not only common lands
shared by a community but also the social estate or status of laborers.
The play positions Cade not simply as a rebel but, more important, as a
London clothworker, a representative of urban laborers.4 He aims to pro-
vide for the material needs of the poor and wage laborers, and to remedy
their differentiation from wealthy landowners reinforced by sumptuary
laws, which determined the kinds of clothing worn by people of differ-
ent social statuses. He recognizes that ownership of private property is a
foundation of social hierarchy. For this reason he intends to “burn all
the records of the realm” (4.7.14) so that “henceforward all things shall
be in common” (4.7.18–19). Burning records, such as deeds recording
titles to land, will establish customary use rights to all property within
the kingdom and remove the economic basis of social hierarchy.
Through the abolition of private property, he believes, laborers will
recover their “ancient freedom” by casting off their subordination or
Property and Inheritance in Shakespearean Drama 75
“slavery to the nobility” (4.8.27–28). Only when “all the realm shall be
in common” (4.2.68) will the social order again be like that in the
Garden of Eden before the Fall.
In contrast to Cade, medieval and early modern theologians and
jurists justified the institution of private property as both a logical and
necessary consequence of humankind’s fallen nature. The fall from a
state of innocence, resulting in humankind’s expulsion from the Garden
of Eden, was assumed not only to have introduced evil into the world
but also to have undermined “whatever order still pervaded the
universe.”5 The social institution of private property, St. Augustine
argued, was a means to reestablish order.6 In the prelapsarian world,
while humankind was innocent, all property had been held in common.
After the Fall, however, humankind was “compelled to organize society
and the diverse institutions which should regulate the ownership and
use of the good things which men had once held in common. The insti-
tution of property thus represents both the fall of man from his primi-
tive innocence, the greed and avarice which refused to recognize the
common ownership of things, and also the method by which the blind
greed of human nature may be controlled and regulated.”7 Only in a
state of innocence, it was assumed, was the institution of private prop-
erty unnecessary. The Fall, Richard Schlatter explains, “provided the
social and political theorists of Christendom with a conservative argu-
ment more persuasive and more subtle than Aristotle’s theory of natural
inequality and natural slavery. It accepts the position that men were cre-
ated equal and insists that even now their souls are of equal worth in the
eyes of God. But at the same time it insists that since the Fall the natures
of men, all of them depraved, make necessary instruments of social
domination.”8 Ideas of the law of nature, articulated by Aquinas,
informed later Tudor and early Stuart discussions of both government
and property.9 Although it was premised on, and facilitated the main-
tenance of, inequality and hierarchy, private property was understood
as reasonable and just because it was necessary to bind people together
in civil society and to maintain the social order threatened by their
depravity and self-interest.
Thomas Starkey is one of many Tudor counselors and jurists whose
dialogues and treatises reveal the profound influence of Christianity and
biblical narratives about the Fall upon concepts of property.10 In his
Dialogue between Pole and Lupset (written c.1529–32),11 Pole criticizes
laws and customs of inheritance, whereas Lupset justifies them as social
conventions that secure social order and accord with the law of nature.
During their discussion of English inheritance customs, Pole criticizes
primogeniture, the common law rule of aristocratic inheritance upon

intestacy, by which “the eldest brother succeeds excluding all the other
from any part of the inheritance.”12 This system of succession disadvan-
tages younger brothers in an aristocratic family as if they were neither
“the children of that father nor brethren to the heir.”13 He contends that
all male siblings should share the patrimony. Primogeniture, which
instead excludes younger sons “from all, as though they had committed
some great offence and crime against their parents, is plain against rea-
son and seems to diminish the natural love between brother and
brother.”14 Lupset, however, contends that Pole’s argument would “take
utterly away our policy and whole order of this our realm. You note such
things to be faults wherein rests all the honor of our country and which
is the ground of all good order and civility.”15 Lupset refers to the polit-
ical purposes of primogeniture, which, he asserts, are necessary in a
postlapsarian world in which “laws are made for the people and the
order of them and not the people for the laws . . . therefore laws, ordi-
nances and statutes which contain the people in good order and rule are
to be allowed and justly to be received.”16 Laws that regulate society, he
explains, have been shaped to correct the fallen nature of humankind;
those
who first instituted this law of inheritance . . . well considered . . . our

people who by nature be somewhat rude and sturdy of mind, in so
much that if they had not in every place some heads and governors
to temper their rude and unruly affects there would among them be
no order at all, and therefore it was . . . ordained and established that
in every great family the eldest should succeed to maintain a head,
which by authority, dignity and power should better contain the
rudeness of the people.17
Customs such as primogeniture have a political function; they ensure an

orderly government supervised by rulers representing great landed fam-
ilies. It is the fallen nature of humankind – its unruliness – that necessi-
tates laws that order and structure relationships within the family and
polity. Lupset assumes that if the lands of aristocratic families were dis-
tributed equally among brothers “in a small process of years, the head
family would decay and by little and little utterly vanish away and so
the people should be without rulers and heads which then by their rude-
ness and folly would shortly disturb this quiet life and good policy
which by many ages they have laid here in our country.”18 Lupset uses
terms such as “unruly,” “rude,” and “foolish” to describe those who lack
private property. These terms participate in what Keith Wrightson

describes as a “terminology of social simplification” that elides more
formal categories of social hierarchy and degree, such as nobility,
clergy, gentry, and commonalty, in order to articulate ideas of “radical
differentiation” that dissociate the propertied and unpropertied members
of society.19
Lupset argues that the inequality suffered by younger sons in great
landed families is outweighed in importance by the fact that “the rude-
ness of our peoples requires heads and governors to contain them in
order and quietness.”20 Consequently, he asserts that the custom of pri-
mogeniture should be practiced only by “great houses, as princes, dukes,
earls and barons.”21 This exclusivity merits emphasis. The ability to per-
petuate noble estates from generation to generation was protected by
entail and primogeniture, which enabled the aristocracy to consolidate
both title and land as a basis of political and economic power. Entail was
a legal device for transmitting property from one generation to the next
in order to create a land–family bond that differentiated aristocrats from
all others in terms of status, particularly the middling sort including the
gentry.22 For this reason, Lupset argues, entail should be practiced only
in “great houses”: “this entailing may be suffered for the maintenance of
the [great] family, yet in the base families commonly, this is to be admit-
ted surely as nothing convenient, for as much as it brings in great
inequality and so much hate and malice among the commonalty.”23
Starkey’s dialogue justifies private property as a convention necessary to
curb social unrest, created by the license of those unable to govern
themselves. For Starkey, individuals blinded by self-interest will “invari-
ably disregard the common interest, thus proving incapable of govern-
ing themselves well.”24 For this reason, the dialogue explains, English
law has a political logic that justifies primogeniture only among the aris-
tocracy. It fostered unequal property rights among the nobility, mid-
dling, and lower sorts. In a postlapsarian world, different statuses based
in private property were socially desirable because they were assumed to
produce order.
Rebels and Heirs in 2 Henry VI and As You Like It
Property rights become a basis of complaint shared by the nobles and

laborers in 2 Henry VI when they learn the terms set forth in the mar-
riage contract of King Henry and Margaret of Anjou. Peace is established
between England and France upon agreement “that the duchy of Anjou
and the county of Maine shall be releas’d and deliver’d to the King her
father” (1.1.50–52). Because the army of Henry V conquered these

territories for England, their return to France becomes “the common
grief of all the land” (1.1.77). Anjou and Maine, in the minds of many of
the king’s subjects, are the “true inheritance” (1.1.82) that Henry V left
not only his son but all his people. Their inability to compel Henry VI to
rescind his agreement to the marriage contract reflects the complex the-
ory of the king’s relationship to all the lands of his kingdom. An English
king by his coronation oath became responsible for preserving the state
and its welfare. In order to maintain the estate and dignity of the crown,
he was endowed with the hereditary and inalienable fisc, a complex of
lands, revenues, and rights. As G. L. Harriss has explained, although in
regard to the fisc the “king’s authority was sovereign, not shared, he was
to exercise it for the support of the dignity of the crown.” Consequently,
“the king had a duty not to alienate or impair the fisc so that it became
insufficient for this purpose. Subjects could thus claim a legitimate con-
cern with the management of the king’s ‘own,’ but that concern stopped
short of the power to determine or constrain the king’s use of it.”25
Medieval, Tudor, and early Stuart writers compared the fisc to the soul of
the state or its dowry to emphasize that the king was a trustee of it for
the realm. The fisc in Roman law “had a public function for which the
king was merely the trustee, [whereas] in feudal terms the fisc was the
king’s demesne; he was lord of his own to do with it what he willed.
Even though he should not alienate it (for it sustained his dignity and
rule), he could not be prevented from so doing.”26 Although the feudal
theory of his relationship to the fisc legitimizes Henry VI’s decision to
surrender Anjou and Maine, it does not content his subjects. Cade
voices his own and his followers’ sense of injury caused by the loss of
French territory; to them the marriage treaty “hath gelded the com-
monwealth” and “thereby is England maimed and fain to go with a
staff” (4.2.165, 162–63). Among the nobles, Warwick’s sense of griev-
ance is unique; it arises from his role as the warrior who in the name of
Henry V “did win them both. / Those provinces these arms of mine did
conquer” (1.1.119–20). These responses identify an issue that produces
conflicts about property throughout the play: the fact that many
people could hold different interests in one property. Just as members of
a local community, a manorial lord, and the king could hold different
interests in common land, the king’s subjects – both nobles and laborers –
understood themselves to hold property interests in the fisc sundered by
the marriage contract.
Gloucester, the Lord Protector, like other nobles, recognizes that the
loss of Anjou and Maine is “the common grief of all” (1.1.77). He alone
among the nobles, however, accepts that this grievance that they share
with other subjects of the king does not justify rebellion. York, in con-
trast, argues that Henry’s decision to cede territory to France indicates
the king’s inability to fulfill the responsibilities of his office. This argu-
ment fails to disguise the ambitious self-interest of York’s assumption
that he himself is not only “far better born than is the King” but also
“More like a king, more kingly in my thoughts” (5.1.28–29). York’s argu-
ment that obedience is owed only by those who “know not how to rule”
(5.1.6) proposes election on the basis of ability and is a valid alternative
to inheritance of the crown according to rules of lineal succession. York
and other nobles who question the king’s tenure of office and preroga-
tive powers thereby undermine the political order based upon inheri-
tance and lineal succession. The nobles initiate a concatenation of
conflicts by challenging the principle of succession, which makes Henry
the “legitimate” king, head of the kingdom. The principle of lineal suc-
cession to the crown, although based on a unique theorization of the
king’s relationship to the land, is analogous to the principle of succes-
sion governing aristocratic inheritance. The succession of the eldest
male heir of each generation of an aristocratic family was justified, as
Starkey’s dialogue explains, only by its political purpose of maintaining
social order. By questioning the king’s rightful tenure of his office, the
nobles undermine their own hereditary rights and fail to honor their
responsibilities as aristocratic landowners to maintain social stability.
Their rivalry causes the failure of orderly government; indeed, their
factionalism is contained only in response to Cade’s rebellion, which
temporarily unites members of the nobility to protect their privileged
social status. With the collapse of Cade’s rebellion, factionalism prolifer-
ates, leading to the failure of the “head” families to fulfill their social
function. The nobles’ factionalism, which serves only their self-interest,
indicates why Cade’s aim to abolish all private property and transform
the realm into one vast common, like the Garden of Eden, cannot suc-
ceed. Only respect for the diverse but interrelated rights and interests in
property – the fisc, private property, and the commons – can unite
the king, nobles, and laborers. It is deference to property law and
custom, which define and organize social relationships, rather than
the mere existence of landed property that can maintain social order in
a postlapsarian world.
As You Like It explores the same themes as 2 Henry VI: familial conflict
caused by customs of inheritance and social conflict caused by the
erosion of common use rights to land. In this comedy the aristocratic
custom of the lineal succession of the eldest male son, by which Duke
Senior succeeded to his title and family estate, is overturned when his
younger brother, Duke Frederick, usurps the dukedom. The usurpation
of the estate and title of Duke by the younger brother remains largely
unquestioned within the play; a fait accompli as the play begins, this
challenge to social customs of inheritance will be overturned at the con-
clusion of the play when the usurper willingly restores the dukedom to
its rightful ruler. Although the usurper, fearing a challenge to his title
from those loyal to the rightful duke, at one point pursues his brother
with an army, Duke Senior and his courtiers accept a contemplative life
of retirement in the Forest of Arden. Complaint about the disruption of
the aristocratic custom of lineal succession is voiced not by Duke Senior
but instead by Rosalind, his daughter and sole heir. It is Rosalind who
complains that she cannot easily “forget a banish’d father” and the con-
sequences of this fact upon “the condition of my estate” (1.2.15–16).
She is persuaded to “be merry” only when her cousin, Celia, proposes to
rectify the wrongs of her father, Duke Frederick. Celia assures Rosalind:
“You know my father hath no child but I, nor none is like to have; and,
truly when he dies, thou shalt be his heir: for what he hath taken away
from thy father perforce, I will render thee again in affection”
(1.2.17–21). The friendship of these young women, both potential
heiresses to the same dukedom, provides a resolution not to the conflict
between their fathers but instead to the intergenerational consequences
of that conflict. Celia generously promises to restore to her cousin the
estate necessary to maintain Rosalind’s understanding of herself as an
“heiress.” When Duke Frederick impedes this plan by banishing
Rosalind, Celia not only resolutely flees with her cousin but also for-
swears her inheritance, asserting, “let my father seek another heir”
(1.3.99). Maintenance of the title and landed estate of the dukedom is
threatened by the estrangement of the two heiresses from their fathers.
The estrangement of siblings in the de Boys family is, as Starkey’s dia-
logue contends, a result of the gentry imitating aristocratic inheritance
practices. Orlando, the youngest son of Sir Roland de Boys, complains of
his ill-treatment by his eldest brother, Oliver, who, in accordance with
his father’s will, succeeded to the family lands and wealth.27 Sir Roland’s
will specifies that the family lands and estate descend to his eldest son,
who was given the responsibility of educating his younger brothers in a
manner appropriate to their gentry status. The conflict between Oliver
and Orlando, as Louis Montrose has explained, represents the popular
idea that younger sons were potential sources of social disruption and
discontent, especially after the gentry began to imitate the inheritance
customs of the nobility.28 Orlando complains that unequal distribution
of property among brothers allows an heir to abuse his younger siblings

by denying them the means to maintain not only their economic status
but also their familial identity. He accuses Oliver of having “train’d me
like a peasant, obscuring and hiding from me all gentleman-like qualities”
(1.1.68–70).
After his life is saved in the Forest of Arden by Orlando, Oliver volun-
tarily gives him the family estate. Oliver is not required by custom or by
law to transfer his property to Jacques, the brother closest to him in age.
Oliver chooses to alienate his property to his youngest brother and
adopts a new persona as a husband to Celia, a woman whom he believes
to be only the sister of a small landowner who possesses a “cottage, pas-
ture, and the flock” (2.4.92) within the forest. Oliver’s conduct is the
comedy’s most obvious questioning of primogeniture as a social custom
of inheritance. Whereas the play ends with the restoration of the duke-
dom to its rightful heir, the eldest brother Duke Senior, the de Boys’
estate is transferred away from the eldest and elder sons without trans-
gressing customs of inheritance. The play suggests the irrelevance of
aristocratic customs of inheritance to a gentry family such as the de
Boys.
Oliver’s decision to marry Celia and remain in the Forest of Arden “as
a shepherd” is made possible by the enclosed lands that she has pur-
chased. From the fifteenth century onward, disafforestation – the enclo-
sure of the common lands within forests – limited the use rights of local
communities to areas of the forest that supported their economy.29
Corin, a resident of Arden, works for another man, who intends to sell
part of the forest lands that he has enclosed for grazing sheep. Corin’s
description of the dwelling on the property as a “cottage” suggests that
its owner is not a manorial lord or great landowner but instead a small-
scale agriculturalist. As Neal Wood has explained, “the pioneers of early
capitalist enterprise were usually free tenants, copyholders, and yeomen
(tenants as well as freeholders in their own right). . . . The working, non-
gentlemanly capitalist farmers were among the first and most ruthless
enclosers of common and waste land, engrossing their scattered hold-
ings in the common fields and leasing arable and pasture from the
gentry, all chiefly for the purpose of grazing their livestock.”30 The play
represents the fact that these changes in land ownership have conse-
quences for those whose livelihood depends on common land; an
owner of enclosed private property can exclude Corin from lands to
which the local community once held common use rights. The comedy
does not direct criticism for enclosure and its consequences toward the
aristocrats or gentry but instead toward an enterprising cottager whose
absence from his land and failure to perform “deeds of hospitality” reveal
his “churlish disposition” (2.4.82, 80). The absent master’s willingness to
sell his property to Celia indicates that he understands it merely as a prof-
itable commodity. Its sale to Celia, a member of the aristocracy, who at
the conclusion of the play weds Oliver, a member of the gentry, restores
the pair’s original identities as people of propertied status.
The locus amoenus in 2 Henry VI and As You Like It
The Garden of Iden in 2 Henry VI illustrates the nature of property rela-

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

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

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

from epideictic to forensic topoi about the place or locus of the garden.
When he first engages Cade in combat, Iden identifies himself as
“Alexander Iden, an esquire of Kent” (4.10.38). Defining his identity
both by status and county, Iden provides evidence that his actions con-
form to those of a gentleman. In this manner, he attempts to disprove
the slanderous accusation that only with the aid of servants would he
dare attempt to cast Cade out of the garden. It is Cade’s dying revelation
of his identity that provides proof that Iden is just in his decision to
exclude the trespasser, whose decapitated body is cast “Unto a dunghill,
which shall be thy grave, / . . . Leaving thy trunk for crows to feed upon”
(4.10.81–84). This scene of Jack Cade in the Garden of Iden – an ironic
allusion to the biblical, prelapsarian Garden of Eden – represents the
political purpose and consequences of exclusive proprietary rights.
According to political theorists, including Starkey, private property is
intended to maintain hierarchy, which by differentiating propertied and
propertyless members of society orders their relationships. It is necessary
because of the depravity of humankind – exemplified not only by Cade’s
“rudeness” but also by the conduct of men of propertied status in
2 Henry VI. And it is the depravity of men of property in the history play
that qualifies the political justification of private property and inheri-
tance that Starkey endorses. The strife among the nobles and the com-
mons in disregard of both legitimate succession and property rights
vitiates the settings of the city and the court. In an idealized pleasant
landscape, the enclosed Garden of Iden, where an owner’s property
interests legitimize his exclusion of all others from it, there remains no
basis for a social relationship among members of society. Instead, there
is simply a basis for confrontation and conflict. Although Cade’s guilt as
a leader of a rebellion legitimizes Iden’s action as the execution of a trai-
tor, it cannot erase knowledge of the fact that the landowner’s initial
intention is to exclude a trespasser at any cost. The communal Garden
of Eden that existed in a world of prelapsarian innocence has become
the enclosed Garden of Iden, whose owner claims it as individual private
property. The Fall, it was believed, had caused the expulsion of Adam
and Eve from the Garden of Eden. In Shakespeare’s history play, in a
world of private property, intrusion into the Garden of Iden has become
a capital crime.
The Forest of Arden in As You Like It is a landscape in which common
lands remain to maintain property relationships as a basis of a society
that increases as many people migrate to it for refuge. Although Orlando
describes the landscape as a “desert inaccessible” (2.7.110) before he is
welcomed to join the Duke and his court, its pleasant and restorative
qualities are well defined by Duke Senior, who asks those loyal to him in
exile to affirm: “Are not these woods / More free from peril than the
envious court?” (2.1.3–4). The harshness of fall and winter, to the Duke,
is less threatening than courtly life, where envy confirms the depravity
of humankind’s fallen nature. The Duke values the simple and harsh life
in the forest as a corrective necessary for men of property. In the forest
he and his loyal companions feel
the penalty of Adam,

The seasons’ difference, as the icy fang
And churlish chiding of the winter’s wind,
Which when it bites and blows upon my body
Even till I shrink with cold, I smile and say
“This is no flattery: these are counsellors
That feelingly persuade me what I am.” (2.1.5–11)
By implicitly condemning the insincerity rife at court, he praises the

effects of exposure to the seasons in the forest as valued political coun-
selors who provide a corrective to pride. He identifies the conventional
attributes of a locus amoenus when he praises “this our life, exempt from
public haunt, / [that] Finds tongues in trees, books in the running
brooks, / Sermons in stones, and good in every thing” (2.1.15–17). As a
result of usurpation of his landed estate and title, the Duke, while living
on lands to which customary use rights remain, understands what he
has in common with all others as a consequence of “the penalty of
Adam” (2.1.5). The Forest of Arden is a postlapsarian landscape that
teaches how, as a result of their depravity, humankind must struggle to
correct their conduct and maintain social order in a fallen world. In the
pleasant retreat offered by the forest, the Duke realizes that both those
of propertied and those of unpropertied status share depravity.
It is in the Forest of Arden that men such as Duke Senior and Oliver de
Boys, who are illegally dispossessed of their property, learn their respon-
sibility to maintain social order by respecting customary use rights and
customs of inheritance that differentiate the status of the aristocracy
and gentry. Oliver, who abused his status as heir by failing to fulfill his
obligations to his youngest brother, loses both his lands and status when
the usurper, Duke Frederick, seizes the de Boys’ lands. Oliver subse-
quently undergoes a conversion in the forest, where Orlando saves him
from death and presents him to Duke Senior. Reconciled to his youngest
brother, whom, he admits to Celia, in the past he did “oft contrive to
kill” (4.3.134), Oliver succumbs to both love of Celia and the humble
pastoral life that she has adopted. His love for Celia is the reason that
Oliver gives to explain why he renounces both his property and identity
as heir, promising to Orlando, “my father’s house and all the revenue
that was old Sir Roland’s will I estate upon you, and here live and die a
shepherd” (5.2.10–12). Although at the play’s beginning Oliver was an
unkind master to his servant Adam, he, like others of elite and middling
status, has been reformed by his experience in the forest. While those
who flee to the Forest of Arden do so because their property has been
alienated and their status and identity estranged from them, the pleas-
ant landscape provides an opportunity to understand the relationship of
property to their personhood. There they share the experience of a sim-
ple shepherd, such as Corin, who is affected by the erosion of customary
use rights when a small portion of the forest is enclosed. As a result of
enclosure, Corin explains, “I am shepherd to another man, / And do not
shear the fleeces that I graze” (2.4.78–79). Having lost common use
rights to property, Corin accepts that his best lot is to work for a kinder
master. Like other characters in As You Like It, the laborer Corin adapts his
persona to the restored and re-created society of the forest. Property is the
medium through which the characters understand and exercise attrib-
utes of their own status and explore and regulate their social relation-
ships to members of their family and persons of different social status.
Conclusion
Shakespearean drama indicates the degree to which the concept of prop-

erty was debated in Tudor England. Enclosure is a noted example of an
innovative practice that provoked debate about the definition of landed
property. To enclosing landholders, land was no longer a basis of pater-
nal obligations between a manorial lord and a local community who
shared interests in common land, but instead a commodity with eco-
nomic potential determined by security of title and exclusive propri-
etary interest. Enclosure provokes petitions in 2 Henry VI as well as
complaint in As You Like It. Enclosure is also the reason for Jack Cade’s
ambition to burn “all the records of the realm” to destroy all proof of
title to land and thereby restore the “ancient freedom” (4.8.27) of the
commons that existed in a prelapsarian world. Cade, however, aims to
do more than restore customary use rights to common lands; he aims to
eradicate all private property in order to remove the basis for social hier-
archy that differentiates status on the basis of the extent of one’s landed
property. To Cade, social status based upon inherited property is called
into question by the fact that “Adam was a gardener” (4.2.134), an asser-
tion of a common origin that challenges those who assume social dif-
ferentiation is based on landholding by lineal succession. The ultimate
aim of Cade’s rebellion is to reestablish the social order based upon com-
mon property in the Garden of Eden. The possibility of restoring
humankind to a prelapsarian state was not an idea assumed to be feasi-
ble or desirable by sixteenth-century theorists of the land law and prop-
erty. Instead writers such as Thomas Starkey built upon the arguments of
preceding jurists and theologians who used the Fall to explain why pri-
vate property as an institution and the social customs which supported
it, particularly common law rules of aristocratic inheritance, were neces-
sary for the flourishing of society. In 2 Henry VI the unruliness of all
members of society – those in the city and the court as well as the
Garden of Iden – demonstrates why property is a necessary if fallible
means of securing social order. Similarly, in As You Like It, the strife of
urban and courtly life transforms the experience of living in the pleas-
ant landscape of the Forest of Arden, where characters learn the neces-
sity of respecting a web of property relationships that differentiate their
social status. Neither the locus amoenus of the Garden of Iden nor the
Forest of Arden restores or recommends the social order of the Garden of
Eden in which private property did not exist. Instead, Shakespearean
drama represents the reality of human self-interest that disrupts the
political function of property relationships in a fallen world.
Notes
1. Citations are taken from William Shakespeare, As You Like It and The Second
Part of Henry VI, in The Riverside Shakespeare, ed. G. Blakemore Evans (Boston,
MA: Houghton Mifflin, 1974), pp. 365–402, 630–70.
2. Place was a topos of proof in judicial rhetoric and praise in epideictic rhetoric.
In classical Greek and Roman poetry as well as the Latin poetry of the middle
ages, these topoi informed a variety of literary genres, including epic and geor-
gic, which included description and praise of a “pleasant place” or locus
amoenus. See Ernst Curtius, European Literature and the Latin Middle Ages, trans.
Willard R. Trask (Princeton, NJ: Princeton University Press, 1973),
pp. 195–202.
3. On enclosure in 2 Henry VI see Thomas Cartelli, “Jack Cade in the Garden:
Class Consciousness and Class Conflict in the Tudor-Stuart Period,” in
Enclosure Acts: Sexuality, Property, and Culture in Early Modern England, ed.
Richard Burt and John M. Archer (Ithaca, NY: Cornell University Press, 1994),
pp. 48–67; Stephen Greenblatt, “Murdering Peasants: Status, Genre, and the
Representation of Rebellion,” Representations 1 (1983), 23–25; Michael
Hattaway, “Rebellion, Class Consciousness, and Shakespeare’s 2 Henry VI,”
Cahiers Elizabethans 33 (1988), 13–22; and Richard Wilson, Will Power: Essays
on Shakespearean Authority (Detroit, MI: Wayne State University Press, 1993),

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

24. Neal Wood, Foundations, p. 133.
25. G. L. Harriss, “Medieval Doctrines in the Debates on Supply, 1610–1629,” in
Faction and Parliament: Essays on Early Stuart History, ed. Kevin Sharpe
(London: Methuen, 1978), pp. 75–76.
26. Harriss, “Medieval Doctrines,” pp. 88–89.
27. According to the 1540 Statute of Wills, real property, or land, could be dis-
posed by testament. See Buck, “The Politics of the Land Law,” 200–15.
28. Louise Montrose, “The Place of a Brother in As You Like It: Social Processes
and Comic Form,” Shakespeare Quarterly 32 (1981), 28–54.
29. See Leonard Cantor, “Forests, Chases, Parks and Warrens,” in The English
Medieval Landscape, ed. Leonard Cantor (Philadelphia, PA: University of
Pennsylvania Press, 1982), p. 56.
30. Neal Wood, Foundations, pp. 63–64.
6
Avoiding the Issue of Fraud:
4, 5 Philip & Mary c.8 (the Heiress
Protection Statute), Portia, and
Desdemona
Charles Ross
A fraud is any intentional deceit. To justify a civil suit, the fraud must
result in damages.1 In criminal offenses, according to a popular and rea-
sonable account in the Encyclopedia Britannica, there must be a mens rea,
so fraud is not an offense itself but part of an offense:
Probably the first attempt to bring fraud within the criminal law was
in the sixteenth century, when Britain’s reputation in commerce was
beginning to develop. Two statutes were passed in the reign of
Elizabeth I dealing with conveyances in fraud of creditors and in
fraud of purchasers which curtailed the current fraudulent practice of
disposing of assets prior to bankruptcy.2
Although the criminal element never took hold, these two statutes
established two kinds of fraudulent conveyancing in debtor–creditor
law.3 The first occurs when a debtor intentionally puts assets out of the
reach of creditors. This type was the subject of a statute passed in 1571
(13 Eliz. c.5). The core of the law is that transfers of property intention-
ally made “to delay, hinder, or defraud creditors and others” may be
voided. The second form of transaction occurs when a purchaser is
defrauded, usually because someone else has taken title. Fraudulent
conveyances against purchasers were the subject of 27 Elizabeth c.4,
passed in 1584. These were not the first laws in England against fraudulent
91
92 Charles Ross
conveyancing, nor was England the first country to have such laws, but
they have remained the basis for modern American law.
Fraudulent conveyancing was part of Shakespeare’s life. It inflects the
language of his plays, in which various actions allusively mimic the
practice, particularly the conveyance of women. A couple of English
statutes against seducing women for their money (6 Rich. 2 c.6 and 4, 5
Phil. & M. c.8) shared some of the terms, if not the legal acumen, of the
statutes aimed at stopping frauds against creditors or purchasers. That
overlap in part explains why the language of commercial credit is often
used in the context of desire. The metaphor arose in part because daugh-
ters were to some extent regarded as property, but also because a daugh-
ter, insofar as she owed obedience to her father, could be compared to a
debtor, and her elopement to fraud against him.
In this essay I want to take a closer look at fraudulent conveyances in
two plays of Shakespeare, The Merchant of Venice (1596–97) and Othello
(1602–04). In particular I want to emphasize fraud, because it turns out
that the difficulty or uncertainty in identifying examples of fraudulent
conveyancing in Shakespeare’s plays is precisely the point. Just as
Shakespeare’s text often hides details such as when, exactly, Portia mar-
ries Bassanio and when Othello and Desdemona consummate their mar-
riage, Shakespeare’s characters often fail to acknowledge fraudulent
conveyances. The result is that this means of avoiding debt is a
metaphor not just for the abduction of young ladies, but also for obscur-
ing the issue of the commoditization of women and the related issue of
race: the status of a child fathered by a Moor on a Venetian lady he has
abducted. A similar avoidance characterizes statutes against conveying
women, which I will look at first. For Shakespeare, the most recent of
the laws against trafficking in young women was ineffective because it
failed to address fully the problem of fraud.
Sharing a similar language of and concern for fraud and conveyancing
with the commercial statutes 13 Elizabeth c.5 (1571) and 27 Elizabeth c.4
(1584) – as well as a number of earlier political statutes that served a simi-
lar purpose – were laws passed to protect not creditors or purchasers, but
families and friends. Following the lines of an earlier statute (6 Rich. 2 c.6),
Parliament in 1556 passed a law against carrying away “women who are
heirs apparent to their ancestors” (4, 5 Phil. & M. c.8). The problem
was what happened if a woman had been left property in her
name when fortune seekers (“unthrifty and light personages . . . [and]
others that for rewards buy and sell the said maidens”) managed to
convey her away from her guardians and marry her. The preamble
Avoiding the Issue of Fraud 93
indicates that Parliament sought to protect property interests
[w]here maidens and women – children of noblemen, gentlemen,

and others, as well as such as be heirs apparent to their ancestors, as
others, having left unto them by their father, or other ancestor and
friends, lands, tenements, and hereditaments, or other great
substances in goods and chattels moveable, for and to the intent to
advance them in marriage – [are] . . . secretly allured and won to
contract matrimony . . . either with sleight or force . . . [and] . . .
taken and conveyed away from their said parents, friends, or
kinsfolks.4
The remedy clause, which follows the statement of the problem,

makes it unlawful to “take or convey” a young woman against the will
of her guardian – unless “such taking and conveying” be “without
fraud” (the tortured syntax of this statute is not the least of its
problems):
For remedy, be it enacted by the King and Queen’s Majesties . . . and

the Parliament assembled . . . that it shall not be lawful . . . to take or
convey away . . . any maid or woman child unmarried, being within
the age of sixteen years out of, or from the possession, custody, or
governance, and against the will of the father of such maid or woman
child, or such person or persons to whom the father of such maid or
woman child, by his last Will and Testament, or by any other act in
his lifetime, hath, or shall appoint . . . or grant the order, keeping,
education, or governance of such maid or woman child.
The penalty follows the remedy. If the offender is over fourteen years of
age, he and his confederates will be imprisoned for two years or fined an
amount to be determined in Star Chamber. If the offender deflowers the
girl or contracts matrimony, he shall be imprisoned for five years or pay
a fine, half to the Crown, half to “the parties grieved.” The statute does
not otherwise annul the marriage, probably because the determination
of marriage (based on the woman’s consent) was a matter for the
ecclesiastical courts.5
If the statute does not restore the ravished and married woman to her
previous status, it does seek to frustrate the new husband’s claims to the
family property. First, aware that no common law suit could proceed
without the proper pleading, the authors of the statute specified that the
94 Charles Ross
correct procedure against the malefactor was an “indictment of trespass.”

They then specified that where the woman consented to matrimony, and
so was married, her property would pass to her next of kin during her
lifetime, a restatement of the law in 6 Richard 2 c.6. Neither she nor her
husband would enjoy her inheritance. At her death, however, the prop-
erty would pass from her next of kin back to her heirs, although not to
her offending husband. In short – and the statute does not state this
specifically – her children by her husband would inherit (“as they should”):
And after the decease of such person so contracting matrimony, that,

then the said lands, tenements, and hereditaments shall descend,
revert, remain, and come to such person or persons as they should
have in case this Act had never been made, other than to him only
that so shall contract matrimony.
It is hard to know what is most scandalous: the danger of abduction that

this statute was designed to counter, the poor drafting of the statute,
or the exceptions that it allowed. First, it applies only to women under
sixteen years of age. At a time when women routinely married in their
twenties, as Peter Laslett argued in The World We Have Lost, the statute
failed to cover a significant portion of the population.6 The statute fur-
ther exempts London or any other municipality that provides for
orphans. If they, like the Court of Wards that controlled most of the
great heiresses of the realm, allowed fortune hunters, that was their busi-
ness. Finally, the pressures operating against this statute are signaled by
the exceptions made for matrimonial contracts made by “such person or
persons as by the title of Wardship shall then have, or be intitled to
have, the marriage of such maid or woman child.” This statute allowed
old lords to marry young wards, a situation that even Molière takes for
granted and finds amusing, as long as the older man is not a nincompoop.
It is perhaps not just the spirit of comedy but the ineffective state of
the law that accounts for so many protective fathers or appointed
guardians in Shakespeare’s plays: Capulet, Brabantio, Aegeus, Prospero,
Calchas, Baptista Minola, the Duke of Milan in Two Gentlemen of Verona
(1592–93), Shylock, George Page, Leonato, Lear, Polonius, Duke
Frederick, and Duke Senior, and, lest we not take seriously the worries of
parents, whoever is responsible for Thisby. Despite the foolishness of
most of these men, some of Shakespeare’s young women are fatherless
and, if the concerns of 4, 5 Philip & Mary c.8 are any indication of the
dangers that faced them, Shakespeare’s audience would have perceived
them as imperiled and unprotected. This list includes fatherless women
of the upper classes such as Olivia and Viola, the Helenas in A

Midsummer Night’s Dream (1595–96) and All’s Well That Ends Well
(1603–04), perhaps Beatrice in Much Ado about Nothing (1598–99),
Isabella, Lady Anne, Juliet, Imogen, the princess of France who loses her
father in the course of Love’s Labor’s Lost (1595), and Portia. Since
Adriana in The Comedy of Errors (1590), despite the practice of modern
performances, is a former ward of the duke, she should probably not be
imagined as a commoner. Her marital unhappiness in fact signals the
helplessness of heiresses who were brought into and bought in the sys-
tem of wardship that developed to control their property. In addition,
the list of Shakespeare’s imperiled women should probably include
ladies-in-waiting and others of the middling sort, some of whom are
protected by such “friends” as the statute mentions. Women of this sort,
who may be imagined to have some property even when unmentioned,
include Rosaline, Maria, and Katherine in Love’s Labor’s Lost; Ursula,
who gets into trouble in a window; Diana, the widow’s daughter in All’s
Well; Juliet and Mariana in Measure for Measure (1604); perhaps Maria in
Twelfth Night (1601); and Nerissa. Despite the emphasis on family
wealth, the statute covered all classes: that inclusiveness is the point of
the phrase “and others” in the first sentence of the preamble. Therefore,
the list of imperiled women should include servants and peasants such
as Phebe, Audry, Jaquenetta, and various kitchen wenches who, if their
ages were known, might be imagined to benefit from the statutory rape
provisions of the law. Most of these women appear in the comedies.
Little case law developed from the statute designed to protect such
women, although Blackstone cites it, noting that in France, daughters
required their parents’ consent until age twenty-five and in Holland
until age twenty.7 This lack of influence supports the view that the
statute was badly drafted as well as out of touch with the social mores.
A major problem is that the statute contains an emotional but legally
ineffective definition of fraud, using name-calling and outrage in place
of logic. For example, the penalty provision makes the mistake of
incompletely specifying the types of fraud a man might use to gain the
consent of an underage woman – that is, “by secret letters, messages, or
otherwise.” The word “otherwise” raises a problem that a good lawyer,
then or now, might exploit. Suppose that a father, such as Brabantio,
believes a man has used black magic to seduce his daughter. His lawyer
would argue that the word “otherwise” covers magic, but the opposing
lawyer would argue that it does not. Magic is not a means of communi-
cation, like letters or messages, since it is done in secret and the recipient
is unaware of this secret means of persuasion. Lacking case law on this
96 Charles Ross
statute, we do not know whether the issue was alive, but Shakespeare’s
play inverts the Marian statute. The Duke is prepared to void the mar-
riage should it be shown that Othello used magic to lure Desdemona,
but as Othello used only his words, his action does not fit the Duke’s
category: in the play, as opposed to the statute, it does not suffice that
the messages of love are secret. Like Brabantio, the statute expresses out-
rage but proves powerless.8 Unlike the statute, Shakespeare concentrates
on Desdemona’s marital status and her father’s personal, not financial,
disappointment. The play avoids the issue of Desdemona’s property and
fraud.
The quality of drafting in the statute may be further gauged by noting
that it contains no provision for voiding the conveyance either of the
woman or, eventually, her property. The statute aims to prevent either
force or fraud in the carrying away of a woman on whom an estate had
been settled. Yet except for a provision that the property would be held
by the next of kin during the woman’s lifetime, there was no provision
to undo the ill effects of the crime. The statute creates the possibility
that the woman might be raped, forcibly married, consent to her matri-
mony at least enough to satisfy the ecclesiastical courts, produce an heir,
be murdered – perhaps by falling down a flight of stairs9 – or die in child
birth, and leave her entire estate to an infant who, for all the statute did,
would be under the control of the offending husband until the child
came of age. The language of the statute is too vague, the punishments
too lenient, the exceptions too great, for it to have effectively countered
what the preamble sets out as a major cause of concern: the ploys of
those who use “slight or force” to take young women from the protec-
tion of their families. Such elopements may have been “to the high dis-
pleasure of Almighty God, disparagement of the said children, and
extreme continual heaviness of all their friends,” but they continued,
despite the words of the preamble that called this practice “a great,
familiar, and common mischief in this our Commonwealth” (4, 5 Phil.
& M. c.8).
In his personal life, Shakespeare, of course, would have avoided the
statute: the heiress to whom he displayed what the law called his “lewd
demeanor” was well over the protected age when he got her pregnant
and married her. And his most popular plays support the point of view
of the persuasive fortune seeker because Shakespeare convinces us that
the daughter is right and the father wrong, as in the case of Juliet,
Desdemona, Jessica, and possibly Portia. Yet through his suggestive lan-
guage and plot structures, Shakespeare also managed to conflate the
moral outrage over abducted women with the legal acumen of fraudulent
conveyancing laws. During the age of Elizabeth, it seems that it was not
law but literature that continued to raise the problem of conveying away
women. Except in the case of Kate in Taming of the Shrew or Jessica, who
leaves her house with her father’s moneybags, Shakespeare generally
underplays the possibility that women from wealthy families (Hero,
Cordelia, Portia) might be married for their money. But the shadow of
the issue remains.
II
Recent scholarship on The Merchant of Venice has been alert to the com-
mercial and social interests represented by Belmont, although a similar
analysis has yet to be focused on Othello. Portia may or may not be less
carried away in love than Desdemona, but she is far more obviously
associated with economic exchange and – with regard to an issue an ear-
lier generation of scholars tended to avoid – far less tolerant of ethnic
otherness, including skin color, than her Venetian sister. Her father has
died and left a riddle based on a choice of caskets to determine who will
be her husband and receive the family fortune. Having set her heart on
Bassanio, a soldier and scholar, rather than a drunken German or a bur-
nished Moroccan, Portia arranges for Bassanio to hear a song that warns
him against trusting outward appearances. Fancy, engendered through
the eyes, should be let die. Bassanio takes the hint and finds Portia’s pic-
ture in the least attractive casket. As usual with Portia, we may wonder
about her intention. She explicitly tells Bassanio that she cannot teach
him how to choose correctly or she will be forsworn, yet she allows the
song to perform this task under the pretense of providing music for him
to die by, like a swan, should he choose wrong. It is not hard to take the
view that despite her father’s will, Portia is a determined agent of her
own fate.
If her father’s will is all that controls her destiny, then Portia is but a
piece of property and may be fairly regarded as a token of exchange, a
Maussian and Levi-Straussian gift whose role is to display the power of
her father, even beyond the grave, and cement an exogamous relation-
ship to a chosen and well-connected outsider.10 Commenting on the
correlation between traffic in women and merchandise, Jyotsna Singh
concludes that Portia is prevented from “occupying the position of an
autonomous, desiring subject.” She identifies Portia as a “gift within a
patriarchal sex/gender system” but only after concluding that gifts
“generate a broad range of meanings.”11 This range arises because Mauss
made no distinction between gifts and other objects of exchange, and
98 Charles Ross
Singh does not know quite what to do with Derrida’s decontextualized

definition of the gift as what “is ostensibly given with no assurance of
anything in return.”12 She concludes, rightly I think, that Belmont is
more commercial than earlier critics who regarded it as a fairy-tale
“green” world supposed, but I am not sure that the notion of a gift, how-
ever broad its range, adequately explains Portia or what she does. Portia
is hardly an unreciprocated gift from her father, as Bassanio arrives in
Belmont preceded by a messenger bearing presents that warm that part
of Portia’s heart that might still be hesitant about the quality of the man
who seeks to marry her. What was the point of the loan from Shylock,
after all, if not to make Bassanio suitable?13
Part of the problem of understanding Portia is finding the right frame
of reference for her. Any good lawyer could have argued Portia is part of
an exchange in which consideration in the form of love weighs equally
with the value of the gift. It is easy enough to imagine Aragon or
Morocco proclaiming the value of his love, should events have
demanded it. Nor, I would argue, is Portia to be regarded as a counter in
an equally vague economic transition to modern capitalism.14
Historically, what is happening in the play is less what Singh calls “the
spirit of the gift [that] offers a rhetorical cover or a mystification of the
transactions of global capital and trade” than a demonstration of the fer-
vent debate over the ethics of and remedy for financial fraud. Portia is
always on the verge of fraud. She may manipulate Bassanio’s choice of
caskets. She gets her way when she appears as Bellario to quibble over
the meaning of a pound of flesh. And she threatens to give away what
does not belong to her. Although Portia declares that Bassanio, having
chosen the correct casket, may take possession of her and of her wealth,
she still acts as if she controls that of which, she remarks pointedly, “but
now I was the lord”15 When she tells Bassanio to pay Shylock triple what
is owed, and triple that, she is offering to give away Bassanio’s money to
save Antonio. Had she succeeded, had she herself given money to
Antonio, Bassanio could have charged her with fraudulent conveyanc-
ing for giving away before her marriage what he has a right to as a result
of the marital negotiations (in this case the set of symbolic agreements
presented by the choice of caskets). Cases were actually brought in the
seventeenth century where families were sued for conveying property
beyond the reach of the man who married their daughter.16
This example is what I call a shadow of a fraudulent conveyance
rather than an example of it since Portia does not actually make a pay-
ment to Shylock and it is unclear whether she has control of her father’s
resources, even temporarily.17 It makes legal sense that there is a moment
after her father’s death and before her marriage during which Portia
takes possession of the family property, unless we are to imagine a
trustee both willing to go along with the father’s fantasy will and
immune to the kind of pressure a future beneficiary as smart and deter-
mined as Portia might exert. The objection that Shakespeare’s play pre-
sumes a world where no woman is allowed to own property seems more
the product of our modern imagination than what happens in the play.
Ever alert to examples of patriarchal power in the past, we presume that
since Portia’s father’s will sets terms on Portia’s marriage, it also sets up
an inflexible trust that can hold seisin for the period between the
father’s death and the settlement of the property on Portia’s future
husband.
Portia does not commit a fraudulent conveyance in the play, but once
Bassanio chooses the correct casket, we can ask how the law would apply
if she had. Our uncertainty about what Portia is saying, rather than mys-
tifying the transition to modern capitalism, suggests that Portia does not
fully exploit the legal possibilities of her position. As we have seen,
Portia’s language implies that she controls herself and what is hers. If
that is the case, she could have conveyed her assets away, hidden them,
delayed their transfer, or as the law against fraudulent conveyances also
put it, hindered Bassanio’s possession of them and her. Does she delay,
hinder, or defraud Bassanio? In fact, she marries him so quickly, one is
not sure when the wedding takes place. What is mystified is not the
commercial character of Belmont but Portia’s attitude toward fraud for
her own benefit.
What Portia does not do is significant, then, as she oversees the trans-
fer of her family’s wealth to Bassanio. The only wealth transfer we actu-
ally see is the ring she gives him.18 It may be just as Stanley Kauffman
explains in his review of the Al Pacino Merchant that “with the last
minute ring mix-up, Shakespeare was clearly trying to restore the key of
romantic comedy to his play after the grim trial scene.”19 If we look at
this exchange in commercial terms, however, the question it raises is
whether the debt Bassanio owes Portia – symbolized in her ring and sig-
nifying love – outweighs or is more valuable than the one he owes the
“judge” who helped his friend. One of the legal questions answered by
Twyne’s Case (1601) – the judicial decision that clarified the fraudulent
conveyancing statute of 1571 and settled this aspect of debtor law for
centuries – was whether love was a valuable consideration for a gift of
property. The rule set forth was that love might be good consideration
but it could not be “valuable consideration,” which had to involve more
than affinity and affection.20 Score one for Bassanio, who had to assume
100 Charles Ross
that Bellario wanted the ring for its value, not its sentiment. Given the
development of the law, it was reasonable to suppose that the “judge”
would not regard his claims to the ring’s sentimental value. Unfortunately
for him, however, Portia regards the ring for its sentiment, not its mone-
tary worth. The lesson she teaches Bassanio is that the loyalty he owes her
is far more valuable than anything he could owe the “judge.” He must
learn that her relationship to him is not commercial, but emotional. (She
may also be teaching him who is boss, but that is part of the comedy.)
III
Like The Merchant of Venice, Othello is about a man who takes another
man’s daughter. So obvious is the change that Shakespeare makes to his
source when he adds Othello’s elopement with Desdemona that it seems
he deliberately draws attention to the issue – how to keep family prop-
erty out of the hands of a fortune hunter who makes off with an heiress –
that motivated statutes against fortune hunters (6 Rich. 2 c.6; 4, 5 Phil. &
M. c.8; or 35 Eliz. c.9, which forbade benefit of clergy to ravishers).
Although the idea that Othello marries Desdemona for her money never
arises in the play, these statutes were also about protecting daughters
from unsuitable outsiders, and that issue is everywhere felt in the play.
No one mentions the fate of Brabantio’s estate, but it may be presumed
he had substantial property and that Desdemona, as the only child, was
the heir. It may be that something like the heiress protection statute lies
behind Iago’s thought when he tells Othello that if Brabantio can’t
divorce Othello from Desdemona, he will “put upon you what restraint
or grievance / The law, with all his might to enforce it on, / Will give him
cable” (1.2.115–17). Outside of divorce, the only restraint imaginable
would be resettlement of any property intended for Desdemona. To the
objection that Brabantio is still alive and does not need the statute to tell
him how he should dispose his property is the answer that he soon dies –
another detail Shakespeare adds – perhaps even before he could resettle
his estate. Following this admittedly hypothetical reasoning, an actor
playing Brabantio’s brother Graziano might decide that Graziano would
have managed to claim some kind of equivalent of 4, 5 Philip & Mary c.8
and control Desdemona’s inheritance during her lifetime. There is no
other particular reason why Brabantio’s close relative should show up in
Cyprus, something else that Shakespeare added to his source. If we imag-
ine Desdemona to be under sixteen, her elopement would fall within
the statute. If she is older, then the issue of fraud remains, although this
statute would fail to provide a remedy.
Shakespeare did not write Othello as a commentary on commercial

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

stops me here, it is too much of joy” (2.1.196–97). Let there be the
smallest doubt, he says, and “Chaos is come again” (3.3.92). Iago
phrases this transfer negatively, raising the issue of the second badge of
fraud, which is that the donor continues in possession of the goods he
has legally “conveyed” to the ownership of someone else. “Her honor is
an essence that’s not seen,” says Iago. “They have it very oft that have it
not” (4.1.16–17). We know that Desdemona has not given away her
honor to Cassio, but Othello believes she is guilty just because she man-
ages both to give it away privately and to keep it publicly. She transfers
her affection in secret, and secrecy is Coke’s third mark of fraud, the one
Iago exploits to the fullest every time he makes Othello suspect
Desdemona’s secret affair with Cassio. The fourth sign of fraud appears
when a transfer is made during proceedings, as when a debtor, getting
wind that his creditor is coming, then conveys his property out of reach.
Again, everything Desdemona does to hide her connivance with Cassio
works in this way once Iago has poisoned Othello’s mind (“And by how
much she strives to do him good / She shall undo her credit with the
Moor” [2.3.358–59]). Coke’s fifth sign of fraud, trust with another party,
addresses the revocable gift, perhaps the most important badge of fraud
in later law. Othello believes that Desdemona has revoked the love she
gave him and given it away, but he has no conceptual framework within
which to make the case that she void the transfer, or repent, and so he
murders her. An unnecessary protestation of innocence is a badge of
fraud: when Desdemona raises the issue of Cassio in the presence of vis-
itors from Venice, Othello strikes her, presumably because a woman who
doth protest too much is inherently suspicious (4.1.232). Desdemona’s
later protestations of innocence confirm his suspicions as he strangles
her:
OTHELLO: Think on thy sins.

DESDEMONA: They are the loves I bear you.
OTHELLO: Ay, and for that thou di’st. (5.1.39–41)
Throughout Othello Shakespeare adds elements of fraud and con-

veyancing to his source story. Although in Cinthio’s story Desdemona’s
parents oppose her marriage to the Moor, they know Othello’s inten-
tions, and the couple marry and live together before their journey to
Cyprus. Shakespeare adds secrecy to the affair. He adds Brabantio’s
charge that Othello used witchcraft to lure away his daughter. Where in
the source Othello weighs taking the Cyprus appointment against his
desire to remain with Desdemona, Shakespeare adds the confusion of

the Turkish attack on Cyprus that forces Othello to assign the
“conveyance” of Desdemona to Iago in a separate ship (1.3.285). He
does so not just because the urgency of the situation requires his instant
departure, but because time is needed to draw up his “commission”
(1.3.281), a metonymic association reminding us that conveyances were
legal documents, not just oral transfers, which was why laws were
needed to void them. Othello’s use of the word is innocent enough. No
merchant, a stranger to Venetian customs, he seems oblivious to the
issues his elopement raises – including the status of any children he
might have – yet his use of the word “conveyance” prompts Iago (who
constantly improvises on small hints) to repeat and exploit this pattern
of fraud. Credulity – lending too much credit to Iago, just as Roderigo
does in a monetary way – is Othello’s undoing.
As part of the pattern of fraud in the play, a scheme of unwarranted
property transfers underlies Desdemona’s famous handkerchief. In
Cinthio’s story the Ensign (Iago’s part) picks Desdemona’s pocket while
she is distracted with his little daughter. He then plants it where the
Captain (Cassio) will find it. There is no scenario of Emilia wrongly giv-
ing it to her husband instead of back to Desdemona, then Iago passing
it to Cassio, who gives it to Bianca. By making Emilia an intermediary,
Shakespeare adds an element of fraud. Emilia knows she should return it
but other obligations convince her to give it to her husband, just as
every debtor has an excuse, often a good one, for avoiding payment.
Why shouldn’t Emilia convert something as small as a handkerchief?
Her seeming innocence mirrors the moral issues behind fraudulent con-
veyancing. “She may, I think, bestow’t on any man” (4.1.13), says Iago,
as if Desdemona were a debtor who could choose which creditor to pay.
Once Iago has the handkerchief, he arranges its further conveyance to
Cassio and makes it a symbol of Desdemona’s honor. Othello tells
Desdemona the handkerchief had the magic power to keep a husband
from straying, but he really regards it as a sign not of his love but of the
conveyance of her affections to someone else. Honor is not, however,
recoverable property. Nor does Othello ever understand the pattern and
give her a chance to remedy her perceived deceit. He has no remedy for
her fraud but to murder her.
Although Othello himself remains blind to fraud and the implications
of his term “conveyance,” little details point to the way Shakespeare
imagined Othello’s story in commercial terms. Cassio, for example, is
unnamed in the source and his home unmentioned. He is merely a cap-
tain. Shakespeare makes him a “great arithmetician” from Florence, a
104 Charles Ross
city known for its banks, and gives him a name that roughly means
“cash” or “cashier” (with a double sense of the teller in a bank and some-
one who might be cashiered, as Cassio is when Othello demotes him).
Shakespeare gives the Ensign a name too. He chose the odd version
“Iago” (James, Iachimo), perhaps because it sounds like “agognare,”
which means to wish, covet, desire, or long for. According to John
Florio’s standard Italian–English dictionary, a panting dog that has run
hard and is out of breath is said to “agogna.” Further word play occurs
when Shakespeare adds the inn to which the couple elopes and gives it
a name, the Sagittarius, which refers to an arrow-shooting centaur.
Othello never notices how the name alludes to Iago’s perception of him,
but Shakespeare, in naming the inn, probably had in mind that several
centaur features might apply to Othello’s love for and conveyance of
Desdemona: the centaur was a concupiscent animal, a figure of abnor-
mal lust. In Ovid’s Metamorphoses the centaurs both carry away women
(at the wedding of the Lapithae) and are figures of fraud or duplicity
(“duplex natura,” 12.504). Another image of deception that Shakespeare
adds to the rich imagery of his play is the feint of the Turkish fleet
toward Rhodes. The name means the island of roses and might be
regarded as a faint reference to Desdemona’s virginity. That the fleet
turns toward Cyprus, requiring the senate to send Othello there, sug-
gests the way Desdemona turns in Othello’s imagination from virgin to
whore, for Cyprus was the island of Venus and often associated in
romances with wanton love.
Othello never admits his fraud from the beginning, when he blithely
elopes with Desdemona, to the end, when he kills himself. He is a figure
of fraud just the same. For where in the source story Othello refuses to
confess his role in Desdemona’s murder, is banished, and later murdered
by Desdemona’s relatives, in Shakespeare’s drama of deception, Othello
must have known what it meant to elope with Desdemona. And when he
takes his own life, he is cheating the state of the life he owes it. For her
part, Desdemona’s tragic protests include her striving to model herself on
her maid Barbary. “A guiltless death I die,” she claims with her last
breath, echoing Barbary’s willow song (“it expressed her fortune, / And she
died singing it” [4.3.29–30]). In Cinthio’s story, Desdemona sees herself
as a warning for young girls not to marry against the wishes of their par-
ents. In Shakespeare’s play, Desdemona acts on the theory that Othello
will love her better if she behaves the way she believes people of his back-
ground expect. And so following the script of Barbary’s song (“She was in
love, and he she loved proved mad / And did forsake her” [4.327–28]),
she seems to accept her fate. This script coincides with the ethical action
of a debtor, since she dies paying what she believes is due her husband:
her life (“Let nobody blame him, his scorn I approve” [4.3.53]). She does
not convey herself away, even when she knows her life is in danger.
Othello ends in the opposite way, conveying his body to the grave, when
he knows he owes it to the criminal process of Venice.
The three main characters in Othello have different degrees of aware-
ness of fraud and race.24 Iago is alert to the problems and the language
of race and fraud: he is the only one to scorn Othello’s color and to rec-
ognize that the issue is what Desdemona and Othello’s marriage means
to Brabantio. “Awake the snorting citizens with the bell, / Or else the
devil will make a grandsire of you” (1.1.90–91), he yells, assuming that
Desdemona’s children will take on Othello’s features (“you’ll have your
nephews [grandsons] neigh to you” [1.1.112]). In contrast to Iago (and
unlike Portia), Desdemona seems oblivious to Othello’s skin color, but
she seems aware that she has cheated her father when she asks for per-
mission to accompany Othello to Cyprus. Othello is more difficult to
figure. He proudly ignores his race, at least until Iago starts to work on
him, when he admits that he is “black / and [has] not those soft parts of
conversation” (3.3.263–64).25 He elopes with Desdemona without com-
ment, although it would seem that race is his reason for secrecy. We
know that he knows the word “conveyance,” since he uses it when he
orders Iago to convey Desdemona to Cyprus (“To his conveyance I
assign my wife” [1.3.285]), but we do not know whether he realizes its
implications, that by using word he implies the fraud in his ravishment
of Desdemona (and as 4, 5 Phil. & M. c.8 makes clear, a ravishment can
occur even when the woman is willing), or that the word might give
Iago ideas.
Law is ethical behavior, plus the power of the state to punish and
enforce. Literature gives us a glimpse of the ethical dilemmas behind the
law. In Shakespeare’s lifetime, society found itself ready to outlaw fraud-
ulent conveyancing by statute. No common law statute existed to undo
the ravishment and marriage of an heiress, except to allow property to
skip the offending couple and settle on the issue of their marriage, but
that does not mean that society was not worried about dark men – or
those outside the common law, such as Irishmen – carrying away its
women. This worry was a cause of patriarchal anxiety and an element
in Shakespeare’s plays.26 The texture of both Othello and The Merchant
of Venice suggests that the ethics of commerce and fraud are connected
to perceptions of race.27 By hinting at patterns of fraud even as the
106 Charles Ross
nobler characters avoid it, Othello signals another moral issue, one
whose regulation was to garner more and more attention during the
seventeenth century.28
Notes
1. The general elements of fraud in the law today are (1) material false repre-
sentations; (2) made with knowledge that the representation is false or made
in a reckless manner; (3) made with intention that the representation be
acted on; (4) which was in fact relied upon by the party to whom the repre-
sentation was made; (5) which caused injury.
2. Encyclopedia Britannica, s.v. “Fraud.”
3. I discuss the problem of combining a penalty clause, which makes the statute
criminal and thus to be narrowly construed, with a statute against fraud,
which must be broadly construed to be effective, in Charles Ross, Elizabethan
Literature and the Law of Fraudulent Conveyance (Burlington, VT: Ashgate,
2003), pp. 105, 117, 120.
4. English parliamentary statutes were frequently printed. See for example the
edition of Ferdinando Pulton, A kalender, or table, comprehending the effect of
all the statutes that haue beene made and put in print, beginning with Magna
Charta, enacted anno 9. H.3. and proceeding one by one, vntill the end of the ses-
sion of Parliament holden Anno 3. R. Iacobi (London, 1606). I have somewhat
modernized spelling.
5. B. J. Sokol and Mary Sokol, Shakespeare, Law, and Marriage (Cambridge:
6. Peter Laslett, The World We Have Lost: England Before the Industrial Age, 2nd ed.
(New York: Scribner’s, 1971), p. 85.
7. Sir William Blackstone, Commentaries on the Laws of England: A facsimile of the
First Edition of 1765–69, intro. Stanley N. Katz, vol. 1 (Chicago, IL, and
London: University of Chicago Press, 1979), Book 1, ch. 15, pp. 424–26.
8. A reference to 6 Rich. 2 c.6, a statute similar to 4, 5 Phil. & M. c.8, occurs in
a run-of-the-mill property dispute that had nothing to do with conveying
away women. One lawyer in the report in 1 Plowden 354 (1569), while argu-
ing the operation of exceptions to a statute, gives examples from portions of
6 Rich. 2 c.6 that are fairly identical to language in 4, 5 Phil. & M. c.8. He
explains that a woman under twelve who consents to her ravisher is left out
of the statute (and “the heir or next of blood to whom the land ought to
come, &c shall not enter”) because she “is under the age of consent, because
she is without discretion.” She is “within the purview of the Act by the gen-
erality of the words, yet she is left out of it by the help of the reasonable con-
struction made of them.” The problem of whether the woman consented
would be an obstacle to any application of the latter statute as well.
9. When I wrote this I was thinking of the death of Amy Robsart, which freed
Robert Dudley to woo Queen Elizabeth. Then I found that a similar rumor
attended the death of Lady Margaret Hoby; see Sokol and Sokol, Shakespeare,
Law, and Marriage, p. 124.
10. For Claude Levi-Strauss’s argument in The Elements of Kinship that the incest
taboo promoted exagomy and its application to how fathers marry off their
daughters in Shakespeare’s plays, see Lynda Boose, “The Father and the Bride in
Shakepeare,” Publications of the Modern Language Association 97 (1982) 325–47.
11. Jyotsna Singh, “Gendered ‘Gifts’ in Shakespeare’s Belmont: The Economies
of Exchange in Early Modern England,” in A Feminist Companion to
Shakespeare, ed. Dympna Callaghan (Oxford: Blackwell, 2000), pp. 144–59.
12. For the paradox that all gifts entail obligations, see Jacques Derrida, Given
Time. I, Counterfeit Money, trans. Peggy Kamuf (Chicago, IL: University of
Chicago Press, 1992), a meditation, in part, on Marcel Mauss’s anthropological
study, Essaie sur le don (1924).
13. See also Peter Miller, “Past and Present,” in The New Republic 30 (April 2001),
38–44, in his review of Natalie Zemon Davis’s The Gift in Sixteenth-Century
France (Madison, WI: University of Wisconsin Press, 2000). He argues that
the definition of commercial society included the exchange of passions and
sentiments as well as good and services, and that this was always the case,
even among Marcel Mauss’s primitive Melanesians.
14. Singh overlooks the social taboo that specifically forbade aristocrats, the war-
rior class, from engaging directly in trade.
15. William Shakespeare, The Merchant of Venice, 3.2.167. Subsequent citations
from The Merchant of Venice and Othello are from The Riverside Shakespeare,
ed. G. Blakemore Evans (Boston, MA: Houghton Mifflin, 1974).
16. See Ross, Elizabethan Literature, pp. 1, 7 n. 2.
17. Lisa Jardine, Reading Shakespeare Historically (London: Routledge, 1996),
p. 179 n. 53, believes that “Portia remains explicitly in charge of ‘wealth’
throughout the play,” and indeed, Portia’s language, as she presides over the
transfer of assets to Bassanio, hints that she has enough control over her fam-
ily estate that when Bassanio takes possession of what she calls “myself and
what is mine” (3.2.165) he is doing not so much what her father’s will
instructs but what she allows Bassanio to do. But compare B. J. Sokol and
Mary Sokol, Shakespeare’s Legal Language (London and New Brunswick, NJ:
Athlone / Continuum International Publishing Group, 2000), p. 79, who
mention “the peculiar conditions of Portia’s father’s will, which are probably
invalid.” In real life, today, the idea that trustees can resist the blandishments
of a beneficiary is a polite fiction.
18. Portia’s ring, in addition to its symbolic sexual meaning, also participates in
the often-noticed association of the language of commerce with the language
of desire. As Karen Newman argues in “Portia’s Ring: Unruly Women and
Structures of Power” (Shakespeare Quarterly 38 [1987], 19–33), the ring shifts
from a synecdoche, where the ring is part of Portia, to a metonymy, where it
“picks up new meanings which contradict its status as a sign of male
possession.” Newman compares Portia to Mauss’s Big Man, a gift giver who
doles out more than can be reciprocated “and in so doing wins prestige and
power.” I would add that among the “meanings and associations” the ring
“accumulates,” in Newman’s phrase, is the question of who owes what to
whom. It tests the loyalty Bassanio owes to Portia, so that when he gives it to
Bellario, he has morally bankrupted himself. He has nothing left to pay. Still,
during Shakespeare’s era it was not a fraudulent conveyance to prefer one
creditor over another. Insofar as Bassanio owed a debt of gratitude to Bellario,
he could legitimately hand over the ring. But the whole force of the final act
is to move in the other direction, to establish Bassanio’s gift as morally if not
108 Charles Ross
legally wrong. The play actually raises the moral issue that underlies the law
better than the statutes or cases.
19. Stanley Kauffman, “Troubled Beauty,” The New Republic 24 January 2005,
24–25.
20. See Ross, Elizabethan Literature, p. 84.
21. Giraldi Cinthio, Hecatommithi (1565), trans. J. E. Taylor (1855). Digitized by
Stephen L. Parker, http://rick.stanford.edu/opera/Verdi/Otello/source.html.
22. For example, Mihoko Suzuki argues that Renaissance playwrights regularly
substituted the control of women for the problem of controlling the lower
classes. See her essay, “Gender, Class, and the Ideology of Comic Form: Much
Ado About Nothing and Twelfth Night,” in A Feminist Companion to Shakespeare,
ed. Dympna Callaghan, pp. 121–43.
23. See Ross, Elizabethan Literature, pp. 101–03.
24. In The Merry Wives of Windsor Margaret Page shows an unusual degree of
expertise in the area of fraudulent conveyancing, while Falstaff seems fairly
unaware of the ethical problem. See Ross, Elizabethan Literature, pp. 12–16.
The situation is more complex in Othello.
25. See Karen Newman, Fashioning Femininity and Renaissance Drama (Chicago,
IL: University of Chicago Press, 1991), p. 74: “Even [Iago’s] manipulation of
Othello depends on the Moor’s own prejudices against his blackness and
belief that the fair Desdemona would prefer the white Cassio.”
26. Lynda E. Boose, “ ‘The Getting of a Lawful Race’: Racial Discourse in Early
Modern England and the Unrepresentable Black Woman,” in Women, “Race,”
and Writing in the Early Modern Period, ed. Margo Hendricks and Patricia
Parker (New York: Routledge, 1994), p. 46.
27. Sokol and Sokol, Shakespeare’s Legal Language: “Shakespeare shows a quite
precise and mainly serious interest in the capacity of legal language to con-
vey matters of social, moral, and intellectual substance” (p. 3).
28. Newman’s chapter on Othello in Fashioning Femininity argues that blacks
move from a position as occupiers of “mythic roles” to “mere chattel or eco-
nomic linchpins”: “By the time of Rymer’s attack on Othello, Shakespeare’s
heroic and tragic representation of a black man seemed unthinkable”
(pp. 89–90). Newman concludes that “Shakespeare was certainly subject to
the racist, sexist, and colonialist discourses of his time; but by making the
black Othello a hero, and by making Desdemona’s love for Othello and her
transgression of her society’s norms for women in choosing him sympa-
thetic, Shakespeare’s play stands in contestatory relation to the hegemonic
ideologies of race and gender in early modern England.” By the same token,
allowing the offspring of a ravished heiress to inherit, 4, 5 Phil. & M. c.8
might be said to assume the same “contestatory” posture.
7
Accomplished with What She
Lacks: Law, Equity, and
Portia’s Con
Thomas C. Bilello
Critics have long looked to the tension between law and equity in
understanding Shakespeare’s The Merchant of Venice (1596–97). This ten-
sion is rooted in Shylock’s demand for his bond’s notoriously onerous
penalty, a pound of the debtor’s flesh. The bond itself memorializes a
loan made by Shylock to Bassanio, which the merchant Antonio is obli-
gated to repay. When Antonio fails in his repayment obligation, Shylock
brings suit for enforcement of the bond’s penalty. Portia, recently mar-
ried to Bassanio, conceals her identity and arrives at court in the guise of
a Doctor of Laws from Padua apparently called upon to direct the Duke’s
decision. While acknowledging the “strange nature [of] the suit,” Portia
grants that the “law / cannot impugn” Shylock as he proceeds.1 Both the
Duke and Portia appeal to Shylock, imploring him to be merciful in
enforcing his demand for the penalty. When their pleas fail, Portia
allows the enforcement of the penalty but only as strictly construed. The
bond, Portia holds, allows for the taking of precisely one pound of the
debtor’s flesh – no less, no more – and not “one drop of Christian blood”
(4.1.310). This ruling renders the bond’s penalty practically unenforce-
able. Portia then uses Shylock’s attempt to enforce the penalty in court
as the basis for an attempted murder charge, pursuant to which he is
effectively dispossessed. Portia’s highly technical reading of the bond –
whereby the mere attempt to enforce it is itself a crime – dooms Shylock.
Critics generally agree that the play’s court scene examines the conflict
between the rigor of common law literalism and the flexibility of equitable
construction.2 George W. Keeton, for example, argues that, in restricting
Shylock’s recovery to precisely one pound of flesh and no blood, Portia
moves from common law to equity, analogous to a strict accounting of
109
110 Thomas C. Bilello
foreclosures on estates made in satisfaction of a debt.3 Mark Edwin Andrews

imaginatively (and somewhat controversially) reconstructs the trial scene
to depict litigants moving from the common law court, where Shylock’s
bond is held to be enforceable, to Chancery in order to obtain what is
effectively an injunction of that holding.4 The “injunction” is in the form
of the court-imposed no-blood condition. More recently, Stephen A.
Cohen has identified in Portia’s ruling the use of an Aristotelian notion of
equity, specifically that the no-blood condition equitably preempts the
injustice that would otherwise result by enforcing the bond.5 Yet in
the face of this broad agreement, various scholars continue to argue that
the trial in The Merchant of Venice has no connection to either the operation
of equitable construction or English equity jurisdiction.6 Given such
apparent agreement, this claim begs investigation.
To explore this claim, we must first define equity and determine where
in the play such equity may be located. If we cannot find equity to be in
operation, we must then be prepared to provide an alternative by which
to understand the operation of the court. I will argue that Portia’s judg-
ment has little to do with justice or equity. Instead, she is motivated more
by her desire to protect Antonio, her new husband’s confidant. Indeed, by
inserting herself by artifice into the legal proceedings to enforce the bond,
Portia converts the law into an instrumentality of her will. Interestingly,
the criticism of the court scene largely ignores the significance of Portia’s
fraud. For even were Portia not professionally unqualified to provide
guidance on the disposition of the case – she is, after all, “an unlesson’d
girl, unschool’d, unpractic’d” (3.2.159) – her direct personal interest in its
disposition renders her judgment fatally partial, and is itself disqualifying.
Yet, by disguising herself and effacing her bias, she appropriates the mech-
anisms of the court. To that extent, Portia succeeds brilliantly: she obtains
Antonio’s release from the bond, thereby relieving Bassanio from his
moral debt and, by requiring Shylock’s conversion to Christianity, ensures
his elimination from the usury market. But her performance in the court-
room cannot be viewed apart from her bias, which ultimately acts as a
corrupting influence upon the court’s decision. I will therefore argue that
the court’s operation can be best understood in terms not of the conflict
between law and equity but rather of the exertion of Portia’s will through
her disingenuous use of the law.
The notion of equity as understood in sixteenth-century England is
commonly traced to Aristotle’s discussion of epieikeia as developed in his
Nichomachean Ethics.7 There, Aristotle examines the concepts of “justice”
and “equity.” The law, Aristotle argues, is developed as a collection of
general rules. While the mechanical application of these general rules is
legally just, their application may be problematic in particular cases.
Law, Equity, and Portia’s Con 111
For this defect to be corrected, equity requires that these rules be applied
as if the lawgiver “were present” and “had known of this particular
case.” Thus, equity operates as “a corrective to what is legally just,”
where the strict and unreflective application of law would be inconsis-
tent with the lawgiver’s intention.8 For Aristotle, equity speaks to the
imaginative reconstruction of statutes in a manner consistent with the
intent of the legislator. Aristotle does not address the practical difficul-
ties resulting from this construction, which include the requirement
that the personal will of the judge be suppressed. As Carlton K. Allen
argues, the principle of equitable construction “has sometimes led to
[judicial] refinements [of law] which border very closely on fiction.”9
This increased emphasis on jurisprudence injects a measure of flexibility
into the law, while reducing its certainty. It also amplifies the role of the
judge in each particular case, empowering him to determine whether
the law is indeed in conflict with equity and, if so, what equity requires.
Perhaps the most important early modern construction of equity can
be found in Christopher St. German’s Doctor and Student.10 In it,
St. German builds upon Aristotle’s formulation. According to St. German,
Equyte is a [ryghtwysenes] that consideryth all the pertyculer

cyrcumstaunces of the dede / the whiche also is temperyd with the
swetnes of mercye. And [such an equyte] must alway be obseruyd in
euery lawe of man / and in euery generall rewle therof / & that knewe
he wel that sayd thus. Lawes couet to be relyd by equytye. And the
wyse man sayth: be not ouer moch ryghtwyse for the extreme
ryghtwysenes is extreme wronge.11
As in Aristotle’s construction, equity becomes a corrective where apply-

ing “all that the wordes of the law gyueth” is to act “agaynst the lawe.”
Equity requires, at times, that the “wordis of the lawe” be abandoned in
favor of “reason and Justyce,” in order to “tempre and myttygate the
rygoure of the lawe.” St. German echoes Aristotle in locating the prob-
lem of law in the failure of general rules: “It is not possyble to make any
generall rewle of the lawe / but that it shall fayle in some case.” Where
the law of man would, by reason of its generality, offend the law of God
or reason in any particular case, equity must step in as the exception to
“secretely vnderstande in euery generall rewle of euery posytyue lawe.”12
Equity is itself universal, to be observed “in euery lawe of man / and in
euery generall rewle therof.”13 Further, as with Aristotle, equity is to
follow the “intent of the lawe,” rather than the strict “wordes of the
lawe.”14 The judge must reconstruct the intent of the lawgiver in order
to effectuate the equitable application of the law. For St. German (as well
as other sixteenth-century writers, such as Edward Hake), equity was not

a set of principles in opposition to the law, but instead a method of
interpretation or construction inherent therein.15
St. German’s use of the term “ryghtwysenes” may be understood by
comparison with the likely source for his definition of equity. J. A. Guy
traces St. German’s concept of equity to the writings of the Parisian the-
ologian Jean Gerson (1363–1429). Guy states plainly that “it is Gerson
who unquestionably dictates the formulation” of St. German’s discus-
sion of equity in Doctor and Student.16 Gerson’s definition, as offered in
his Regulae Morales, reads, “Equity is justice [which] having weighed all
the particular circumstances is tempered with the sweetness of mercy.”17
One significant point of difference is St. German’s use of the term
“ryghtwysenes” in place of Gerson’s “justice.” St. German’s substitution
of the term “justice” avoids some of the difficulty faced by Aristotle,
where “justice” is the strict application of the law even where such
application is not “equitable.” St. German can then posit a circumstance
where the strict application of law does not result in justice:
To folowe the wordes of the lawe / were in some case both agaynst
Iustyce & the common welthe: wherfore in some cases it is good and
even necessary to leue the wordis of the lawe / & to folowe that reason
and Justyce requyreth / & to that intent equytie is ordeyned / that is
to say to tempre and myttygate the rygoure of the lawe.18
While St. German generally tracks Aristotle, he is more willing to discuss

frankly the consequences of the failure of general law. St. German asserts
that the mechanical application of law will, in some cases, be unjust.
If equity is operating in The Merchant of Venice, we should see some
discussion of whether the law as applied is consistent with the legisla-
tor’s intention. There is, of course, no such discussion. Indeed, as
Theodore Ziolkowski notes, the word “equity” never occurs in the
play;19 the discussion at court is whether the bond’s penalty is legally
enforceable. Before the bond can be enforced, however, it must be estab-
lished as lawful. Given the commercial successes of both Antonio and
Shylock, the requisite legal formalities would be familiar to both. In fact,
it appears that the parties agree to satisfy the formalities for its enforce-
ment as it has been reduced to writing, sealed, and notarized (see gener-
ally 1.3.143–77). Moreover, there appears to be an actual and intended
agreement to the bond’s terms between the two, in that Antonio agrees
to Shylock’s unusual proposal of a penalty not once but at least three
times. Shylock states:
Go with me to a notary, seal me there

Your single bond; and in a merry sport
If you repay me not on such a day,
In such a place, such sum or sums as are
Express’d in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body pleaseth me. (1.3.144–51)
To this, Antonio responds, “Content, in faith, I’ll seal to such a bond”

(1.3.152). Again, after Shylock minimizes the value of the proposed penalty
(“what should I gain / By the extraction of the forfeiture?” [1.3.163–64]),
Antonio confirms his agreement to its terms: “Yes, Shylock, I will seal unto
this bond” (1.3.171). Any suggestion that the penalty was never seriously
proffered is rendered moot when Antonio agrees to its enforceability in
open court (4.1.181–82). Indeed, both Shylock and Antonio ask the court
for the enforcement of the penalty.20 Without any dispute between the liti-
gants as to the enforceability of the bond, there is little for equity (or the
court) to do: there appears to be no conflict between the law or the litigants
for the court to resolve and therefore no room for equity to operate.
Still, St. German’s notion of equity may be implicated if, by enforce-
ment of the bond’s penalty (the law demanded by Shylock), the applica-
tion of Venetian law results in a violation of the law of God or the law of
nature. To enforce the bond’s penalty, the argument might run, is to
enforce an unnatural agreement that offends the physical integrity of the
person, and no person should be held to such contracts. This is perhaps
similar to the common argument that such a bond should be unenforce-
able as against public policy.21 Nonetheless, the court neither enjoins the
enforcement of the penalty nor mitigates its recovery. Instead, the court
expressly finds the bond and its penalty enforceable. “You must prepare
your bosom for his knife” (4.1.243), Portia directs Antonio,
For the intent and purpose of the law

Hath full relation to the penalty,
Which here appeareth due upon the bond. (4.1.245–47)
The suggestion in Portia’s legal judgment is that the law supporting

enforcement of the penalty was intended to operate in this manner. This
may be understood as implicating equity, as, for both Aristotle and

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

It droppeth as the gentle rain from heaven
Upon the place beneath. (4.1.184–86)
That is to say, as Shylock suggests, that he cannot be compelled by the

state or its laws to be merciful. Rather, his “earthly power” will “show
likest God’s / When mercy seasons justice” (4.1.196–97). After impor-
tuning Shylock, Portia “pray[s] for mercy” (4.1.200). She has spoken
To mitigate the justice of thy plea,

Which if thou follow, this strict court of Venice
Must needs give sentence ’gainst the merchant there. (4.1.202–05)
The justice discussed here is akin to Aristotle’s notion of justice – that

of the strict application of law. Justice for Shylock is the collection of
his penalty. Portia asks that he mercifully compromise his lawful
claim and accept less than his legal entitlement. Her plea reminds us
of Aristotle’s extension of the concept of equity to individual action,
where “a man is equitable . . . who is no stickler for justice in a bad
sense, but is satisfied with less than his share even though he has the
law on his side.”25 Aristotle develops an analogy between the equi-
table goals of the judge and those of private individuals. Just as the
judge is to be guided by notions of equity in the application of the
law, so must individuals operate equitably toward each other in
private transactions. Shylock’s repeated demands for justice, then,
ignore the inequity that, at the level of private transactions, would
result from the enforcement of the bond’s penalty. Although his
penalty may be provided for by the law, and as such may be just in the
Aristotelian sense, his insistence on its enforcement distinguishes it as
inequitable.
Of course, equity has another meaning apart from that examined
above. Equity also refers to the authority of the English equity courts,
including the Chancery court. English equity jurisdiction developed
under the authority of the Chancellor, and generally sought to provide
relief from the overly rigorous holdings in common law courts.26 It is
well accepted that, by the sixteenth century, the Chancery court rou-
tinely granted relief from the collection of bond penalties where this
would impose undue hardship on the debtor, and monetary damages
would suffice.27 According to A. W. B. Simpson, Chancery courts began
to draw a distinction between a “penalty,” designed to encourage the
obligor’s performance in terrorem, and “liquidated damages,” a bona fide
covenant for the payment of possible future damages.28 The penal bond
fell into decline as a result in part of the reluctance of the Chancery
courts to enforce penalties. Courts worked to avoid enforcing penalty
provisions in bonds, and granted relief from bond penalties in, for
example, cases of “extreme hardship or oppression.” Such equitable
injunctions became increasingly common in the reign of Elizabeth I.

According to Sir George Cary, if a person bound by penalty fails to make
timely payment as provided for by the bond, but tenders payment in
short order thereafter, “Chancery will compel the obligee to take his
principal, with some reasonable consideration of his damages.”29 Such
damages would typically consist of interest and demonstrable costs.
While it appears that the penal bond’s disfavor developed at least in
part after the writing of The Merchant of Venice, English courts were
relieving debtors from penalty from at least the fourteenth century. For
example, in Umfraville v. Lonstede, the defendant entered into a bond to
deliver a document to the plaintiff as of a certain date.30 The bond
included a penalty requiring payment of a sum if the defendant failed to
deliver as required. When the defendant failed to deliver the document
as agreed, the plaintiff sued for the penalty. There appears to be no ques-
tion of fact as to the defendant’s failure to deliver. However, the defen-
dant tendered delivery of the document at court, citing his prior absence
“beyond the sea” (along with his wife’s apparent failure to follow his
request to deliver in his stead) and argued that the plaintiff had not been
harmed by his failure to deliver. The plaintiff relied on the words of his
bond in his prayer for recovery. The court, distinguishing the desired
recovery as a “penalty” and not a “debt,” asked, “What equity would it
be to award you the debt when the document is tendered and you can-
not show that you have been damaged by the detention?” The court
held that the plaintiff must wait seven years for his judgment.
F. W. Maitland describes this injunction as “an indefinite postpone-
ment of that judgement which is dictated by the rigour of the law” and
as such a “premonition of Equity.”31 More to the point, although it
occurred some two hundred years before Shakespeare’s writing of The
Merchant of Venice, Umfraville is one example of how a bond’s penalty
might be dealt with by a court of equity. Further, it supports the notion
that such equitable remedies were well established at the time of the
writing of Merchant. Yet the Venetian court does nothing similar to
Umfraville.
Not unlike in Umfraville, Bassanio – the recipient of the loan proceeds
but an apparent third party to the bond – offers the full repayment of
the debt to Shylock in open court, and with generous interest. Bassanio
offers Shylock fully two times the loan proceeds, which, considering the
three-month loan period, Richard Posner calculates to be equivalent to
an annual interest rate of 400 percent.32 In fact, Bassanio states that he
will pay Shylock ten times the amount owed if he will forgo his penalty
(4.1.209–13) (such repayment to be made, of course, from his new wife
Portia’s riches). Shylock refuses, demanding his penalty under the bond.
Unlike in Umfraville, however, the court does not ask Shylock for proof
of his damage in light of the amounts proffered. Instead, Portia main-
tains her formalist approach to the language of the bond in ruling that
the penalty is fully enforceable under its strict terms: “A pound of that
same merchant’s flesh is thine. / The court awards it, and the law doth
give it” (4.1.299–300).
Portia’s literalist reading of the bond’s terms is dramatically foreshad-
owed by Shylock’s legalistic view of his obligation to Antonio. Shylock
argues, and Portia concedes, that he cannot be legally compelled to
show mercy. In preparing for the enforcement of the penalty, Portia
then asks Shylock to “have by some surgeon . . . on your charge, / To
stop his wounds, lest he do bleed to death” (4.1.257–58). Shylock asks,
“Is it so nominated in the bond?” (4.1.259). Of course, it is not. Portia
responds that it is not the bond but charity that demands he act so.
Instead, Shylock sees his relationship to Antonio in commercial terms,
and as wholly contained in the bond. Shylock is not compelled to
do anything for Antonio not provided for in the bond, including obtain-
ing and paying for the assistance of a physician. To this extent, Antonio
is commodified. Just as Shylock argues that he owes no duty to the
“muttons, beefs, or goats” purchased and sold for their flesh, neither
does he owe a duty to Antonio. More pointedly, while in court, Shylock
compares Antonio to “a rat” – a vermin with no commercial value – and
his own refusal of the bond’s repayment to the exercise of his legal
option to collect the penalty:
What if my house be troubled with a rat,

And I be pleas’d to give ten thousand ducats
To have it ban’d? (4.1.44–46)
Shylock offers no more reason for his refusal of repayment than

“a lodged hate and a certain loathing / I bear Antonio” (4.1.59–62). The
loss of his three thousand ducats becomes his purchase price for
Antonio’s life. Shylock’s position announces the stillbirth of the friend-
ship desired by him at the formation of the “merry bond.”
Shylock’s narrow reading of his obligation to Antonio gives Portia
license for her narrow reading of the bond’s penalty:
This bond doth give thee here no jot of blood;

The words expressly are “a pound of flesh.”
Take then thy bond, take thou thy pound of flesh,
But in the cutting it, if thou dost shed

One drop of Christian blood, thy lands and goods
Are by the laws of Venice confiscate
Unto the state of Venice. (4.1.306–12)
While the bond’s penalty is enforceable by Shylock, any attempted

enforcement exposes him to criminal liability if he varies from its strict
terms. Indeed, Portia goes on to say that Shylock will be sentenced to die
if he takes either “more / Or less than a just a pound” (4.1.326–32).
Sensing Shylock’s defeat, Portia taunts him: “As thou urgest justice, be
assur’d / Thou shalt have justice more than thou desir’st” (4.1.15–16).
Shylock has not, in fact, ever asked for “justice.” His demand has been
for “the law,” that is to say, its strict application without mitigation.
Justice is not Shylock’s concern except to the extent that an appeal to
“justice” may mitigate his receipt of law. Yet Portia’s subtle transforma-
tion of Shylock’s plea from law to justice will certainly obtain a different
end. Portia seeks to impose an Aristotelian “justice,” the rigorous appli-
cation of law. But, as Aristotle suggests, this justice is not necessarily
equitable. Portia’s notion of imposing a “justice more than thou desir’st”
gestures toward the equitable mitigation of law’s application that
St. German found necessary.
Cohen argues that Portia’s hypertechnical reading of the bond, specif-
ically in its separation of blood from flesh, was a common tactic exer-
cised by equity courts when attempting to discourage the collection of a
common law judgment, thus making voluntary noncollection the more
appealing option.33 Keeton’s position is that the property-like account-
ing required of Shylock – “Shed thou no blood, nor cut thou less nor
more / But just a pound of flesh” (4.1.325–26) – is akin to that required
by equity courts in debtor–creditor transactions. Both positions fail to
recognize that equity courts had long-established remedies for debtors
with respect to the enforcement of penalties. The court’s typical method
of equitable relief was simply not to enforce the penalty, and instead to
assess money damages. But Portia’s desire is to provide legal support for
Shylock’s enforceability of the bond, so that the attempt to enforce it –
or, more accurately, intent to enforce, as no physical attempt is apparent –
can be prosecuted as attempted murder under the alien statute. Her goal
is neither “justice” nor “equity,” but the redemption of her husband’s
friendship with Antonio through the defeat of Shylock.
Still, critics see Portia’s performance at court as admirable. Posner,
while acknowledging that she is an “imposter” with “an undisclosed
interest in the outcome of the trial,” nevertheless refers to Portia in
almost reverent tones as one who applies the law with “sensitivity and
tact” so that its spirit is not sacrificed to its letter.34 Posner recognizes
that “no equitable principles actually inform” the action in the play.35
Yet he (like many others) seems too willing to discount the fatally com-
promised position held by Portia qua judge. She is, after all, wife to
Bassanio, Antonio’s self-described “dear friend” (3.2.261). Antonio
sealed to Shylock’s bond in order to secure funds for Bassanio in his
courting of Portia (1.1.161–76). When Shylock brings his action,
Bassanio makes plain to Portia his relationship to Antonio, and the
import of Shylock’s suit (3.2.258–66). “Is it your dear friend that is thus
in trouble?” (3.2.291) asks Portia, to which Bassanio answers,
The dearest friend to me, the kindest man,

The best-condition’d and unwearied spirit
In doing courtesies, and one in whom
The ancient Roman honor more appears
Than any that draws breath in Italy. (3.2.292–96)
Portia resolves to protect Antonio from the bond’s penalty by paying

Shylock many times the principle, “Before a friend of this description /
Shall lose a hair through Bassanio’s fault” (3.2.299–300). When she
understands that Shylock will not allow the monetary satisfaction of his
bond, Portia develops a strategy intended to defeat Shylock. However,
this defeat requires that she engage in an elaborate fraud – in her words,
the “device” (3.4.81) – upon the Duke of Venice and others at court. This
fraud undermines any justice or law available in court, as Portia has pre-
determined Shylock’s fate; the Venetian courts become simply the
forum for Shylock’s undoing.
To insert herself into the operation of the court, Portia must conceal
her identity, and sends to her respected cousin, Bellario, for the gar-
ments typically worn by a Doctor of Laws. These garments serve to
efface both her gender and her sympathies to the debtor Antonio. It is
interesting to note that, in rehearsing her transition from woman to
man, Portia identifies the most characteristic male trait as the “telling of
quaint lies” (3.4.69). While the lies rehearsed are those of a boy and, as
such, not significant, the suggestion is that dissembling defines the male
character. By obscuring her gender, Portia perpetrates the first lie, an
ironic and necessary step in her entry into the exclusively male court.
Bassanio’s soliloquy before the caskets is telling, and foreshadows
Portia’s double role in court. As Bassanio begins to analyze the three cas-
kets that will determine whether he has won Portia’s hand in marriage,
he speculates as to the meaning of their adornments:
So may the outward shows be least themselves –

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

But more, for that in low simplicity
He lends out money gratis, and brings down
The rate of usance here with us in Venice. (1.3.42–45)
Antonio abuses Shylock for both his business of lending money at inter-
est and for his Jewishness. Shylock has long suffered Antonio’s verbal
and physical insults. Antonio calls him “misbeliever” and “cut throat
dog.” He spits on Shylock’s “Jewish gaberdine” and beard, and kicks him
(see, for example, 1.3.111–12 and 1.3.117–19). Worse, Antonio is
unrepentant: “I am as like to call thee so again, / To spit on thee again,
to spurn thee too” (1.3.130–31). Despite these hostilities, Antonio rec-
ognizes a commercial necessity in Shylock. He demands that the loan be
made, but as to an enemy, so that if the bond is not repaid, Shylock may
“with better face / Exact the penalty” (1.3.135–37). Shylock’s stated
desire, however, is to forget the indignities perpetrated by Antonio, and
make the loan without interest, as between friends:
I would be friends with you, and have your love,

Forget the shames that you have stain’d me with,
Supply your present wants, and take no doit
Of usance for my moneys. (1.3.138–41)
As a token of this friendship, Shylock proposes the penalty as a pound of

flesh, and the bond is executed. While Charles Spinosa argues that the
bond is Shylock’s attempt to normalize relations with Antonio,36 it must
be understood in the context of his desire for revenge: “If I can catch
him once upon the hip, / I will feed fat the ancient grudge I bear him”
(1.3.46–47). The bond will either generate the goodwill that Shylock
seeks or be Antonio’s ruin. Shylock’s “ancient grudge” is quickly stoked
by the loss of his daughter and a certain part of his fortune to Lorenzo,
a Christian. Shylock no longer speaks of the practical value of the nom-
inated penalty – “what should I gain / By the exaction of the forfeiture?”
(1.3.163–64) – but instead of his cemented desire to obtain it: “if it will
feed nothing / else, it will feed my revenge” (3.1.53–54). Shylock under-
stands that Antonio, as a Christian, is cruel to him because he is a Jew.
Shylock interrogates the notion of their difference in his “Hath not a
Jew eyes” speech. Their similarities are broad, extending to the base
human desire for revenge:
And if you wrong us, shall we not revenge? If we are like you in the
rest, we will resemble you in that. If a Jew wrong a Christian, what is
his humility? Revenge. If a Christian wrong a Jew, what should his
sufferance be by Christian example? Why, revenge. The villainy you
teach me, I will execute, and it shall go hard but I will better the
instruction. (3.1.66–73)
Thus, when Antonio defaults on the loan, Shylock is quick to seek its
penalty. Antonio recognizes that Shylock’s vengeance has a commercial
element. Shylock now seeks his life in part because Antonio has assisted
Shylock’s debtors in satisfying their obligations, thereby preventing
Shylock from collecting the penalties of various other bonds. This inter-
ference Antonio understands to be the reason “he hates me” (3.3.21–24).
Though the penalty itself is economically empty, its does serve the com-
mercial purpose of removing Antonio from Venetian commerce, thereby
allowing Shylock to “make what merchandise I will” (3.1.127–29).
Shylock’s enforcement of the bond’s penalty cloaks his desire to ruin
Antonio in the guise of legal authority. If the penalty is enforceable, the
law legitimates, and indeed enables, the blood lust that its formalities
attempt to control. As such, Shylock’s attempt to collect the penalty
may be read in opposite directions, at once both legally protected and
criminally actionable. This is in contrast to Portia’s attempt to ruin
Shylock, which is legally privileged. Portia, in her position as quasi-
judge, can interpret and apply the law at her discretion. Her rulings both
establish the legality of the penalty and reconstruct it as an attempt on
Antonio’s life. The text of the play offers no indication that Shylock has
made any overt attempt to foreclose on the bond – that is, to injure
Antonio – without the court’s direction and approval. Still, Shylock is
prosecuted under the alien statute, which states in substance,
If it be proved against an alien,

That by direct or indirect attempts
He seek the life of any citizen,
The party ’gainst the which he doth contrive
Shall seize one half his goods; the other half
Comes to the privy coffer of the state,
And the offender’s life lies in the mercy
Of the Duke only, ’gainst all other voice. (4.1.349–56)
Shylock does not defend against this charge, nor does Portia or the court
offer the proof required for conviction. While it is clear that Shylock
seeks some measure of personal, ethnic, or religious revenge in pursuing
his pound of flesh, it is not clear whether Shylock takes any overt action,
either “direct or indirect,” by way of ending Antonio’s life. Shylock
appropriately looks to the bond’s enforcement through the courts of
Venice and not through some lawless self-help. Consistent with this
logic, if an action to enforce the bond in court is a criminal act, Portia
acts as an accessory to that crime in that she, through her decision, pro-
vides Shylock with the legal right to pursue his penalty: Portia rules that
the law will protect Shylock in obtaining his penalty.
Shylock looks to implicate Venetian law in carrying out his revenge.

The common single bond, he argues, is legally enforceable and, as such,
its penalty should be as well. Indeed, Shylock argues that Venetian law
is compelled to enforce the bond for commercial reasons. Venice’s com-
merce is important, and the nonenforcement of arm’s-length commer-
cial agreements risks loss of confidence from that sector, as Antonio
acknowledges (3.3.26–31). Portia, too, recognizes that the law must
respect and enforce such private commercial agreements or risk losing
the confidence of its merchants for want of certainty and predictability.
Shylock understands this and forces the court to enforce his penalty.
Indeed, that Shylock is no stranger to commercial transactions
strongly suggests that he understood that the bond would be viewed by
the law not as merely “merry sport” but as binding. The law, then,
becomes the agency, and the court the public forum, through which
both Shylock and Antonio (through his agent, Portia) seek revenge.
But Portia’s holding will likely degrade the confidence of the business
community further than merely not enforcing the bond’s penalty may
have done. A conditional bond containing the penalty of a pound of
flesh simply does not present a serious commercial appeal, and certainly
plays no significant role in Venetian commerce. A holding that the com-
mercial bond’s penalty was unenforceable would not disrupt legitimate
commerce. However, Portia’s creative and overly narrow reading of the
bond could be extended. Does a contract executed in Venice for the pur-
chase of a lamb exclude any part not expressly identified? Does a con-
tract for the purchase of a portion of land exclude flora not expressly
nominated? Portia’s too-clever ruling suggests that Venice maintains an
overly active judiciary, and as such does far greater harm to the notion
of Venice’s freedom than the mere vitiation of the bond’s penalty.
Despite the many implications of her ruling, Portia ultimately acts to
uphold and enforce Shylock’s bond. However, her hypertechnical read-
ing renders its penalty unenforceable. Portia converts Shylock’s demand
for legal enforcement into a criminal attempt on Antonio’s life. This
nonsensical juridical conclusion suggests that the “law” repeatedly
demanded by Shylock is infinitely plastic and exists to be manipulated
by a partial – and quite literally false – judiciary. As such, Portia, through
Shylock’s condemnation, implicates the very laws and legal procedures
of Venice. While nominally still inviolate, Venetian law becomes no
more than the convenient instrument of Shylock’s demise, and the cer-
tainty desired by all with a stake in its commerce – including the Duke,
Antonio, Shylock, and Portia – is compromised. Does it matter that
Portia obtains her judicial power through deception if her ruling is in
fact appropriate? We need not reach this question, as she certainly over-
reaches in resolving the matter at hand. Not only does Portia render the
bond’s penalty effectively unenforceable, but she goes on to pursue
Shylock personally, subjecting him to death, his estate to forfeiture, and
his religious convictions to suppression. Thus, Portia’s bias reduces the
Venetian court to a forum of revenge rather than law. Her con, in don-
ning the robes of the Doctor of Laws, is in deceiving the Duke into
thinking that she is “accomplished / With that [she] lacks” (3.4.61–62).
This is not simply a blue joke. Portia lacks actual authority to act on
behalf of the court. The gowns efface her gender but, more important,
her usurpation of the mechanisms of the court.
Notes
A longer version of this essay was originally published as “Accomplished with
What She Lacks: Law, Equity, and Portia’s Con,” in Law and Literature 16:1 (Spring
2004), 11–32, by the Cardozo School of Law of Yeshiva University.
1. William Shakespeare, The Merchant of Venice, 4.1.177–79, in The Riverside
Shakespeare, 2nd ed., ed. G. Blakemore Evans (Boston, MA: Houghton Mifflin,
1997). All subsequent citations to the play are to this edition.
2. Owen Hood Phillips, in his chapter cataloging criticism regarding the trial
scene, states: “There is a fair measure of agreement among Shakespeare schol-
ars that the trial scene in The Merchant of Venice (4.1) expresses the perennial
conflict between law or strict justice on the one hand and mercy on the other”;
Shakespeare and the Lawyers (London: Methuen, 1972), p. 91. Phillips’s use of
the term “mercy” rather than “equity,” while not uncommon, is problematic.
I will discuss the distinction between the terms later in this essay. For a helpful
overview of the critical debate concerning the operation of law versus equity in
the play, and the development of the “consensus” view, see Charles Spinosa,
“Shylock and Debt and Contract in The Merchant of Venice,” Cardozo Studies in
Law and Literature 5 (1993), 65–85, 82 n. 3. For a survey of the literature on the
theme of “law versus equity” in the play, see B. J. and Mary Sokol, “Shakespeare
and English Equity Jurisdiction: The Merchant of Venice and the Two Texts of
King Lear,” Review of English Studies 50 (1999), 417–39, esp. 421–28.
3. George W. Keeton, Shakespeare’s Legal and Political Background (London:
Pittman, 1967), pp. 144–46. See also his Shakespeare and His Legal Problems
(London: A & C Black, 1930), pp. 18–20.
4. Mark Edwin Andrews, Law versus Equity in “The Merchant of Venice” (Boulder,
CO: University of Colorado Press, 1965).
5. Stephen A. Cohen, “ ‘The Quality of Mercy’: Law, Equity and Ideology in The
Merchant of Venice,” Mosaic 27:4 (1994), 35–54.
6. Sokol and Sokol, “Shakespeare and the English Equity Jurisdiction,”
pp. 421–28, cite various dissenting opinions, including, among others,
R. S. White, Natural Law in English Renaissance Literature (New York: Cambridge
7. Aristotle, Nichomachean Ethics, Book 5, ch. 10, trans. Martin Ostwald

(Indianapolis, IN: Bobbs-Merrill, 1962), pp. 141–42. Ostwald notes that the
Greek noun epieikeia, translated by him as “equity” or “the equitable,” must
be understood broadly to “include any notion of decency, fair play, etc.”
(p. 141 n. 1). Similarly, Carlton K. Allen understands epieikeia as “the general
principle of fairness or equity”; Law in the Making (London: Oxford
8. Aristotle, Nichomachean Ethics, all p. 141.
9. Allen, Law in the Making, p. 390.
10. The text referred to throughout is St. German’s Doctor and Student, ed.
T. F. T. Plucknett and J. L. Barton (London: Selden Society, 1974). This dialogue
was first published in England anonymously under the title Hereafter foloweth
a dyaloge in Englysshe bytwyxt a doctoure of dyuynte and a student in the lawes of
Englande, of the groundes of the sayd lawes and of conscience (1530?).
11. St. German, pp. 95–97.
12. All St. German, p. 97.
13. St. German, p. 95.
15. See for example Glenn Burgess, The Politics of the Ancient Constitution: An
Introduction to English Political Thought, 1603–1642 (University Park, PA:
Pennsylvania State University Press, 1992), p. 87. See also J. A. Guy,
Christopher St. German on Chancery and Statute (London: Seldon Society,
1985), p. 71: “For St. German himself held that equity is not outside the law,
but resides implicitly in and should be observed in every human law.”
16. Guy, Christopher St. German, p. 72, citing P. Vinogradoff, “Reason and
Conscience in Sixteenth Century Jurisprudence,” Law Quarterly Review 96
(1908), 374–75. See also Z. Rueger, “Gerson’s Concept of Equity in
Christopher St. German,” History of Political Thought 3 (1982), 1–30.
17. Guy, Christopher St. German, p. 72.
19. Theodore Ziolkowski, The Mirror of Justice: Literary Reflections of Legal Crises
(Princeton, NJ: Princeton University Press, 1997), p. 181.
20. For Shylock’s demand for “justice,” see for example 4.1.103; regarding his
demand for “law,” see for example 4.1.206–07. For Antonio’s demand for
“judgment,” see for example 4.1.80–83 and 4.1.243–44.
21. See Phillips, Shakespeare and the Lawyers, pp. 91–118; and Keeton, Shakespeare’s
Legal and Political Background, pp. 132–33.
22. Cohen, “The Quality of Mercy,” 49.
23. Keeton, Shakespeare and His Legal Problems, p. 19.
24. See Sokol and Sokol, “Shakespeare and the English Equity Jurisdiction,” 426.
25. Aristotle, Nichomachean Ethics, p. 142.
26. F. W. Maitland famously defines equity as “that body of rules which is admin-
istered only by those Courts which are know as Courts of Equity”; Equity and
Forms of Action (London: Cambridge University Press, 1909), p. 1. Maitland
worked hard to avoid a general definition of such courts, saying “Equity is
now . . . a part of the law of our land. What part? That part which is admin-
istered by certain courts known as courts of equity. We can give no other
general answer” (pp. 13–14).
27. Spinosa concludes similarly that, by the sixteenth century, Chancery courts
commonly provided relief from onerous bond provisions: “It is important to
point out that by the 1590s the Court of Chancery had developed the prac-
tice of giving relief when bonds imposed extreme hardship. Chancellors had
done so since the fifteenth century. And without doubt the Chancery in
Shakespeare’s day would have granted relief to an obligor such as Antonio
who had missed the payment day but was willing to pay a short time after”
(“Shylock and Debt,” 82 n. 3). See also Richard A. Posner, Law and Literature,
rev. and enlarged ed. (Cambridge: Harvard University Press, 1998), p. 107.
Citing E. G. Henderson, “Relief from Bonds in English Chancery,” American
Journal of Legal History 18 (1974), 298–306, and J. H. Baker, An Introduction to
English Legal History (London: Butterworth, 1990), pp. 370–71, Sokol and
Sokol ask why Antonio never seeks equitable relief from the bond’s penalty
when such was, at the time, an established fixture of jurisprudence: “In
Shakespeare’s time the opportunity for equitable relief from a conditional
bond like Shylock’s was certainly available from such courts, and was well
known to be so. This may raise a question: is there a discernible reason why
no such relief is ever thought of during its [the play’s] trial scene or
elsewhere?” (“Shakespeare and the English Equity Jurisdiction,” 426).
28. A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the
Action of Assumpsit (Oxford: Clarendon Press, 1975), pp. 118–20.
29. Cited in Simpson, History of the Common Law, p. 119.
30. Unfraville v. Lonstede, Year Books 2, 3 Ed.2 (S.S. ii), 58; cited in Allen, Law in
the Making, p. 402.
31. Allen, Law in the Making, p. 402.
32. Posner, Law and Literature, p. 107.
33. Cohen, “The Quality of Mercy,” 48 (citing Andrews, Law versus Equity, p. 66;
and Keeton, Shakespeare’s Legal and Political Background, p. 145).
34. Posner, Law and Literature, pp. 107, 109, respectively.
35. Posner, Law and Literature, p. 110.
36. Spinosa, “Shylock and Debt,” 75.
8
Drama and Marine Insurance
in Shakespeare’s London
Luke Wilson
[Men] cannot invent or imagine anything,

but the value of it may be assured.
Gerard Malynes (1622)
It is odd that Antonio does not insure his ships.

Marc Shell (1982)
To begin with, a familiar question about The Merchant of Venice

(1596–97): Why is Antonio so sad? And some familiar answers: he is sad
because he fears losing Bassanio, to whom he is homoerotically
attached, to Portia; because he is nostalgic for an order he himself has
helped destroy; because it is advantageous for him to be so, in order to
legitimate his enormous profits; because he is “foundering under the
burden of so much heterogeneous ideological cargo”; and so on.1 In
what follows I offer an alternative account of Antonio’s sadness, one
guided by late seventeenth- and eighteenth-century preoccupation with
the concept of probability, which I regard as unfolding a properly
Shakespearean preoccupation with probability rather than as anachro-
nistic in relation to it; the association of the same period with senti-
mental and neoclassical critiques and redactions of Shakespeare has
obscured the way in which Enlightenment thinkers of the period, espe-
cially David Hume, articulate certain strains in Shakespeare’s thought.
The analysis of the passions of hope and fear in Hume’s Treatise of
Human Nature (1739–40), I will argue, at once explains and underscores
the strangeness of Antonio’s sadness. For Hume, hope and fear arise with
respect to anticipated events: where positive and negative outcomes are
both possible the mind will oscillate between images of each.2 As Lorraine
127
128 Luke Wilson
Daston puts it in her account of Hume’s argument, “the only way in

which the mind can represent probabilities to itself is to imagine the
various outcomes in proportion to their likelihood of occurring.”3 Hume
says: “Probability arises from an opposition of contrary chances or
causes, by which the mind is not allow’d to fix on either side, but is
incessantly tost from one to another, and at one moment is determin’d
to consider an object as existent, and at another as the contrary.”4 The
passions associated with considering objects or eventualities as actual
rather than merely probable, however, are joy and grief; “as if the mind
is never at any given instant genuinely uncertain,” hope and fear are
really composed of separate and opposed states of certainty, though since
the imagination is faster than the passions, there is a sort of overlapping
of affect and image, the affect associated with the previous image remain-
ing even though a new and contrary image has taken its place. This phe-
nomenology of hope and fear resembles Salarino’s suggestion that
Antonio feels as he does because his “mind is tossing on the ocean” along
with his argosies, as if tossed this way and that by an uncertainty bred of
successively presented probable outcomes.5 Solanio, too, talks about sad-
ness as produced by uncertainty, emphasizing the analysis of evidence
(maps, wind direction) that, it is hoped, will resolve this uncertainty.
The problem, of course, is that Antonio seems to have the wrong
affect: he is sad when – if he is uncertain about his ships, or about any-
thing else for that matter – Hume would expect him to be fearful. In one
sense this tends to confirm Antonio’s insistence that any uncertainty he
might have about his ships – and in any case he says he has none – is not
what is making him sad. But if the charge of anachronism may be
brought against the application here of Hume’s standard, the same
complaint cannot be leveled against the opinions of Solanio and
Salarino themselves. If Hume would take Antonio’s sadness as an indi-
cation that he is not uncertain about anything, Solanio and Salarino
insist on reading that sadness as fear – in other words, on pairing it with
uncertainty. Even if his friends are wrong about Antonio – and I will sug-
gest they are partly right and partly wrong – their attempt to see sadness
as the affective response to uncertainty requires explanation.
Quite rightly, critics typically note the suspicious abruptness of
Antonio’s rejection of the suggestion that he is in love, and point out
the close relationship between erotic and commercial venturing. The
problem here, however, is again that if, as seems plausible, Antonio’s
concern is that he may lose Bassanio to Portia (Bassanio has written him of
his plan to woo her), according to the Humean model Solanio and Salarino
seem to presuppose he should again respond with fear, not sadness, as he
Drama and Marine Insurance 129
is confronted with a probable outcome rather than an established fact.

Here Antonio’s friends seem to be on the right track. What’s wrong, on the
other hand, and what they cannot read for what it is, is Antonio’s affect.
What Antonio feels is not fear à la Hume, but Salarino and Solanio
attempt to describe it as if it is. In this first encounter of the play we see
the normative (and, as it happens, Humean) understanding of contin-
gency and its proper affect confronted by and unable to grasp the expe-
rience of someone who does not fit the pattern. At first, Solanio tries
making fear point forward to a future sadness: “And every object that
might make me fear / Misfortune to my ventures, out of doubt / Would
make me sad” (1.1.20–22). Later, though, fear drops out altogether when
Salarino asks, “Shall I have the thought / To think on this [namely, rocks
threatening to wreck ships], and shall I lack the thought / That such a
thing bechanc’d would make me sad? / But tell not me; I know Antonio /
Is sad to think upon his merchandize” (1.1.36–39). Having transformed
fear into sadness, Salarino says that Antonio is sad now because he is
imagining being sad when his ships are ruined at some future date: sad
at the prospect of being sad. Here, I think, Salarino is right about
Antonio. To adapt Solanio’s words when he proposes to Antonio that
“you are sad / Because you are not merry” (1.1.47–48), we can say that
Antonio is sad because he is not fearful. In Antonio, in other words, risk
is dissociated from its normative (and, again, Humean) affect; instead he
experiences risk as sadness. He is sad rather than fearful because, where
he should be, he is not uncertain; for him risk is not associated with
probability. This means that for Antonio risk cannot be managed, that
in the most abstract sense he has no grasp of probability. Venture for
him is absolute, all or nothing. Marc Shell notes that it is odd that
Antonio does not insure his ships, when in late sixteenth-century
London (and for that matter in mid-century Venice) maritime insurance
was already well-established practice.6 Here, then, is the answer to
Shell’s implicit question. It is not that Antonio is sad because he has no
insurance (because he is at risk, as Solanio and Salarino implicitly con-
jecture), but that he has no insurance because he is sad – because, that
is, he is unable to understand risk except as something wholly unman-
ageable, and therefore beyond anxiety (fear). He is sad, rather than
nothing at all, because risk thus has the status of accomplished fact (this
also is why he is sad rather than fearful at the thought that he might lose
his beloved Bassanio, and why he is convinced, as others are not, that
forfeiture of the pound of flesh will kill him). His sadness registers affec-
tively an absolute lack of uncertainty. Again, Salarino is right that
Antonio is sad at the thought that he might be sad: he can only grasp a
130 Luke Wilson
possible negative outcome as already accomplished, never as a matter of

probability.
The irony of this appears when we recall that in debating with
Shylock Jacob’s clever appropriation of Laban’s sheep, Antonio seems to
argue the ethical superiority of risk to calculation. Unlike Shylock’s tak-
ing interest, Jacob’s scheme was a “venture . . . not in his power to bring
to pass, / But swayed and fashioned by the hand of heaven” (1.3.87–89).
But Antonio’s description of Jacob’s exposure to risk is entirely dissoci-
ated from probability and human agency. The fact is Antonio does not
know what he is talking about; he advocates not the taking of risks but
a sort of fatalism. What Shylock grasps and Antonio does not is that risk
and calculation are not opposed to one another, and that risk is the sub-
jection of uncertainty to calculation. Antonio seems able to respond to
uncertainty only passively; he cannot strategize uncertainty. Still, why is
Antonio not happy rather than sad? The usual view of Antonio as a
masochist, taking pleasure both in Bassanio’s rejection and in the
prospect of Shylock’s knife, may be translated into the idiom of
probability by saying that for Antonio sadness and happiness are indis-
tinguishable, just as pleasure and pain tend to be for the masochist.
Similarly, this kind of nonstrategic pessimism and optimism are
equivalent in being absolute. To adapt Solanio again, Antonio is sad
because he is happy.
I have already suggested one explanation of why Antonio does not
have marine insurance – because he is sad – and there are, of course, oth-
ers that have the advantage of being more sensible: there is no talk of
insurance in Shakespeare’s source; the last thing on Shakespeare’s mind
was to produce a verisimilar account of Venetian (or English) business
practices; his generic commitments left no room for insurance policies.
All true. If Antonio had had insurance he would not have forfeited the
bond and the play could have skipped from act 3 to act 5, resulting in
possibly more comfortable but certainly less satisfactory comedy.
Indeed, the objection that Antonio should have had marine insurance
seems a perversity worthy of Thomas Rymer, who complains in his Short
View of Tragedy (1692) of the lack of verisimilitude in Cassio’s stunning
description of Iago and Desdemona’s sea voyage from Venice to Cyprus,
in which tempest and rocks let them pass, for Desdemona’s sake, despite
their natural inclination to cause shipwrecks: “Is this the Language of
the Exchange, or the Ensuring-Office? Once in a man’s life, he might be
content at Bedlam to hear such a rapture. In a Play one should speak like
a man of business, his speech must be [politicos], which the French render
Agissante; the Italians, Negotiosa, and Operativa; but by this Gentleman’s
talk one may well guess he has nothing to do.”7 If Cassio is such an
arithmetician and counter-caster, Rymer complains, why does he not
talk like one?
Only half concealed in this rant against indecorum in dramatic
speech is Rymer’s annoyance over Othello’s irresponsible attitude toward
sea travel. Elsewhere he complains that though he moves the action
from Venice to Cyprus, “our Poet” did not bother to “make any provi-
sion of Transport Ships for” the audience.8 And here, implicitly, Othello
is being faulted for having failed to take advantage of the services avail-
able through the Office of Assurance at the Royal Exchange. Rymer pub-
lished Short View in 1692, before the explosion of insurance schemes
around 1710–12 but well after the introduction of the tontine system of
life insurance in 1653, and five years before Defoe’s Essay Upon Projects,
with its proposal for a system of personal injury insurance.9 Insurance
was in the air, and so, of course, was the new mathematics of probabil-
ity that finally endowed it with actuarial precision. Rymer’s notorious
objection to the play – “Nothing is more odious in Nature than an
improbable lye; And, certainly, never was any Play fraught, like this of
Othello, with improbabilities” – may have derived as much from this
new discourse of probability as from a neoclassical insistence on
decorum.10 So too it must have made him look to the ensuring office
rather than the divine Desdemona as the best means of protection
against the perils of sea travel.
Yet Othello is itself manifestly concerned with the category of the
probable; Rymer in his perversity was at least on the right track.11 And
similarly, when Merchant first appeared on the stage, marine insurance
had been readily available on the Exchange for some years, so that it is
not at all unlikely that the more business-minded in Shakespeare’s
audience may themselves have wondered, “Why doesn’t Antonio have
insurance?” It is therefore worth pausing over the fact that a lack of
insurance is the enabling condition of the play, that in it insurance’s
absence is structurally crucial. What is the shape of that absence? What
is it that Antonio does not have?
When Gerard Malynes said in 1622 that “men cannot invent or
imagine anything, but the value of it may be assured,” he was exagger-
ating, but only a little.12 Personal injury insurance, for example, was an
invention of the later seventeenth century.13 But many other forms of
insurance were available. In addition to marine insurance, insurance
could be had for crops and cattle as well as against fire, and one could
even take out a policy on one’s own life or on another person’s.14 Marine
insurance, which was widely practiced in the classical world and had
132 Luke Wilson
been common throughout Europe for centuries, was in London unusu-

ally sophisticated and extensive.15 It was the most common form of
insurance, and, along with life insurance, which was often taken out in
connection with sea voyages, was widely discussed by writers on mer-
chant and maritime law and in connection with attempts by Parliament
and the Privy Council to regulate it.16 The volume of insurance policies
issued in the late sixteenth century, or the percentage of ventures
insured, cannot be precisely calculated; not all merchants chose to
insure. It nevertheless remains a fact that insurance was available for
most ventures, and that this kind of risk management was a part of day-
to-day life on the Exchange. Sheer, unmanaged risk was an elective
rather than an inevitable part of doing business.
Risk management through marine insurance resulted, however, in a
secondary set of liabilities and risks. First, premiums may sometimes
have been prohibitively high. Malynes lists standard premiums as costing
between 3 percent of the value insured (London to Rouen) to 20 percent
(return trip to the East Indies).17 If profit margins were slim to start with,
such premiums might dig deep into the rate of return. In the event of a
loss, moreover, claims were not always paid without a legal struggle,
which could be expensive and protracted. Jurisdiction over disputes
concerning commercial agreements generally was uncertain owing to
the ambiguous status of the law merchant in relation to the common
law; commercial cases could be tried in a variety of courts, from local fair
or pie-powder courts to the central common law courts in Westminster
Hall to the prerogative courts, especially Chancery and the Admiralty.18
When it came to insurance claims, recourse to the law was even more
unpredictable, with multiple available jurisdictions; the statutory estab-
lishment of a mercantile court in 1601 to handle insurance disputes
does not seem to have resolved these problems.19 As a result, legal adju-
dication itself, and jurisdictional forum shopping, became a part of the
probability calculus, leading Malynes to an etymological quibble:
The court of Chancerie is properly called a court of Conscience,

because it reasoneth on the part of the complainant, by argument
taken from the Law of Nature before mentioned, Quod tibi fieri non
vis, alteri ne feceris: for in the Chancerie everie man is able by light of
nature to foresee the end of his cause, and to give himselfe a reason
thereof, and is therefore termed a Cause; whereas at the common-law
the clients matter is termed a Case, according to the word Casus,
which is accedentall; for the partie doth hardly know a reason why it
is by law adiudged with or against him.20
Finally, if marine insurance could distribute risk, it might instead simply

displace it. Although it could effectively minimize the risk borne by the
insured, it also meant an assumption of risk by the insurer to a signifi-
cantly greater extent than is the case in modern insurance. Before the
late seventeenth century, policies were underwritten not by corpora-
tions or “friendly societies” able to distribute risk across all their policy-
holders as a group, but by merchants who engaged individually for
whatever amount they were willing to hazard; risk was thus to some
extent distributed among underwriters, but for each it typically
remained substantial. Insurance was itself a form of speculation, and
insurers could reinsure against their own potential losses.21
In The Merchant of Venice, Antonio’s ships are reported as having mis-
carried, only to turn up safe and sound in act 5. This kind of situation,
in which Antonio does not know whether his ships are safe or lost, was
itself manageable by insurance. Not all insurance policies were taken out
at the beginning of a voyage; it was not unusual to insure only after the
venture was well under way, in response to unanticipated stormy
weather, the outbreak of hostilities between nations, an overdue arrival
date, and so on. Vessels already under sail in distant seas could be
insured in two ways. The first was to take a standard policy, and in this
case much care was devoted to the prevention of fraud. In an insurance
case tried in 1559, for example, it was explained that under certain con-
ditions such policies were void:
Althoughe no certen newes ys or can be proved to be or come uppon

land to the contry or place, wheare the same assuraunce shall happen
to be made, of the losse of the goodes, wares or merchandises so
assured happeninge before the tyme of the said assurance, yeat if
anye newes thereof might have comen, althoughe none came in
dede, or if any messangers might have comen by possibilitye from
the said place wheare the losse was, unto the place wheare the assur-
ance was made (althoughe no messangers came in dede),
accomptinge, entendinge and takinge the same possibility after this
sorte and manner: to saye allowinge to the said messanger one houre
for every three miles travayle by land or by sea, for every three myles
being distant betwene the place where the said loss happeneth to be
and the said place wheare the assurance happeneth to be made.22
There is no interest here in evaluating whether a report is true, but only in

whether if there were a report it could be true. If a report could be true – a
possibility determined through distance and a standardized rate of
134 Luke Wilson
travel – then it was too late to take out a policy. The probability that the
ship has been lost is kept separate from any question about the proba-
bility of reports that the ship has been lost. The rule means that one can
take out a policy on an overdue ship reported lost, but only if that report
cannot possibly be true. There are only two classes of reports: those that
cannot be true and those that can. This is a possibility/impossibility
standard, and it does not admit of degrees of probability. The underlying
question of the ship’s fate remains a matter of probability (in fixing on a
premium, insurer and insured will weigh the likelihood that the ship’s
arrival has merely been delayed), but the probability of reports them-
selves is strictly irrelevant. Such a policy would cover a ship that had
already been lost, but only as long as it was not possible to know it had
been lost.
When a ship was already overdue, premiums (and the underwriters’
potential gain) on such policies were higher than they would have been
otherwise, since the likelihood of mishap was perceived as higher. But
ships already at sea could also be insured by means of a distinct kind of
policy that, by the insertion of the phrase “lost or not lost,” explicitly
covered losses that might have already happened. In such cases the spec-
ulative potential of marine insurance was especially high. When a ship
was overdue in port and its perishing had not been established as fact,
one could insure against its loss even if that loss had already occurred
and – this is the key difference – even if a possibly true report of it had
already arrived. Malynes describes the practice in Lex Mercatoria:
Other assurances are made, and these the most dangerous of all,
because they are made upon ships and goods, lost or not lost; which
is not onely in regard that a ship knowne to be departed, doth not
arrive in many moneths after to the appointed place of discharge: but
also if any newes doe come that the ship and goods is cast away, nev-
ertheless if the Assurance be made with the words (lost or not lost)
the Assurors beare the adventure of it, unless it can be proved that the
partie who caused the Assurance to be made, did see the ship when it
was cast away, in this case it is a fraud23
Malynes holds that nothing less than the insured’s having himself wit-
nessed the loss of his ship voided a “lost or not lost” policy made subse-
quently; mere reports of a loss, even if they could have been true, were
not sufficient. Lex Mercatoria dates from 1622, but that this was custom-
ary practice much earlier, at least as early as the latter part of the six-
teenth century, is suggested by provisions in the “Booke of Orders of
Assurances” (c.1577–85). This document sets rules for both the

“ordinary policy,” where reports of loss cannot, by the usual method of
computation, be true, and the “lost or not lost” policy, in which
“whosoever do underwrite such policy of assurance shall not benefit
himself by computation, in reckoning that the news might have come
of the loss before the assurance was made, after the rate of three English
miles, or one Spanish league, to an hour.”24
In removing the “computational” basis for assessing whether a poten-
tial report is true – by preventing not only impossible but also possible
reports of loss from voiding a policy – the availability of “lost or not
lost” policies expanded the reach of probability analysis beyond the bare
probability that a ship will be lost to include the probability that reports
of a loss are true. Ordinary policies taken out when the insured ship is
already at sea necessitate painstaking attempts at precision in measuring
time and distance while nevertheless anticipating that, as the “Booke of
Orders” puts it, “doubt and controversy may grow thereupon.”25 “Lost
or not lost” policies eliminate the need for such precision, but only at
the cost of extending the reach of probability analysis.
This extension of probability to embrace evaluation of reports of loss
was an innovation for marine insurance, certainly, and it does not seem
to have been a feature of any form of earlier insurance, which dealt with
the uncertainty of outcomes but not with the probability of credibility
and does not seem to have asked before “How likely is it that this report
is true?” but only “How likely is it that this or that will come to pass?”
In earlier ways of thinking, uncertainty was framed in terms of belief,
and thus of truth; the new forms of insurance represent a new way of
thinking in which uncertainty is a matter of probability and thus of risk.
Traditional marine insurance policies covering late returns remain closer
to the first of these models, especially in their evaluation of reports of
loss. Although the truth of such reports is bracketed, this is not because
truth is replaced by probability and the risk model but, on the contrary,
because the possible is deemed procedurally equivalent to the certain.
“Lost or not lost” policies – which were, again, innovations of the 1580s
and unique to the London insurance market – acknowledge that the
possible may be more or less probable.
Shakespeare, too, was interested in the evaluation of risk in relation to
the probability of reports, especially when it came to maritime adven-
tures. Shipwreck, and maritime adventure generally, are almost always
what must happen offstage, and thus become closely associated with
reports of what has occurred by eyewitnesses and others, as in the
relatively uncomplicated examples of the reports of wrecks at sea in
136 Luke Wilson
Twelfth Night (1601), The Winter’s Tale (1610–11), and The Tempest
(1611). In a more complex case, Thomas Rymer’s indignant engagement
with Othello in terms of its (im)probability is anticipated in that play in
the scene in which the Venetian counsel weighs conflicting reports of
the disposition of the Turkish fleet, concluding (correctly) that the fleet
is mostly likely bound for Cyprus, not Rhodes.26 In The Merchant of
Venice, the probability of reports of the fate of Antonio’s ships is debated
several times in acts 2 and 3 (at 2.8.26–34 and more extensively
throughout 3.1 and at 3.2.66–71); their total loss is considered certain
by 3.2.271. Unlike the Venetian senators of Othello (1602–04), the
Venetian merchants of The Merchant of Venice, are mistaken; the final
word on the fate of Antonio’s ships (of three of them at any rate) is not
delivered until near the end of act 5, when Portia reveals a letter report-
ing to Antonio that “three of your argosies / Are richly come to harbor
suddenly” (5.1.276–77). She forestalls any inquiry into the credibility of
her news by immediately adding, “You shall not know by what strange
accident / I chancèd on this letter” (5.1.278–79).
For an earlier generation of critics, the emphasis here on accident
might adumbrate divine intervention or even Portia’s own association
with divinity. Those who favor a more skeptical, ironic Shakespeare will
see instead a self-conscious gesture toward comic closure whose con-
trivance is deliberately underscored by Portia’s mysterious refusal of
details when Shakespeare might as easily have had her offer some plau-
sible explanation to set our minds at ease. The constraints of genre sanc-
tion this stagy foreclosure of speculation on the credibility of the letter,
as well as any inquiry into the probability of Portia having access to it.
I am not sure whether this distracts us from, or calls our attention to, the
realization that, since this report being true would mean that earlier
reports were false, there is then the unsettling possibility that, con-
versely, they may have been true and this one false. There is no more
than a hint of this, if even that. False or true? Lost or not lost?
Shakespeare self-consciously offers genre here as the disabler of such
questions; the convergence here of the momentary sound of the grind-
ing of the generic gears and the restoration of a loss that is itself in doubt
suggests (to me, anyway) that Portia’s miraculous announcement is
something akin to the generic equivalent of an insurance policy, as if
she says to Antonio, you did not insure your ships, but I – or the play-
wright, the genre, maybe even providence – did.
The difference between the prevention of loss by these agencies and
marine insurance is that the latter compensates for losses that have
already occurred. And yet marine insurance, and what may be called risk
management by genre, or perhaps “generic insurance,” are structurally

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

risk, fate, or providence. But its implications I think run elsewhere,
toward a plea for the management of risk by people rather than by
genre. Genre in the episode involves a disablement of probability and
thus a foreclosure of the realm of risk per se. Antonio, similarly, never
embraces probability or its entailments, but for different reasons and
with different consequences. The opening scenes, as I have suggested,
present his position as anomalous, and that of his business associates
(even if they are partially mistaken about him) as the norm. Moreover,
where Antonio’s refusal of risk and its management through insurance
would drag the play head first into tragedy, genre’s cork buoys it up. But
if it does so nominally by making probability irrelevant and establishing
credibility by fiat, the effect is perhaps more unsettling. On the one
hand, Antonio’s failure to insure is socially destructive, but on the other,
a dramatic practice that takes out generic insurance to ensure the
restoration of social equilibrium finds itself vulnerable to judgment on
grounds of an improbability founded not within but somewhere beyond
the bounds of genre.28
If Othello is about the potency of probabilistic reasoning and its per-
version by Iago (the senators’ correct conclusion regarding the Turkish
fleet contrasting with Othello’s failure to discern the falsity of Iago’s
plausible tale), Merchant presents a world in which probabilism is a norm
nevertheless conspicuously absent or irrelevant where it ought to be
most in view: in Antonio himself, and in the play’s summary refusal to
debate the comparative credibility of the letter in Portia’s possession and
the previous reports that contradict it. One might even say that the
realm of the probable is nearly squeezed out of the play between these
two forms of denial, which correspond, respectively, to the assurances of
grief and joy Hume associates with contradictory certainties of good and
evil eventualities.29
A sophisticated appreciation of risk and probability, I have suggested,
was the conceptual terrain on which business and theatrical practices
executed joint maneuvers in late sixteenth-century London, especially
in connection with reports brought home of occurrences in remote loca-
tions, whose probability had to be considered in “lost or not lost” poli-
cies, which were expressly prohibited in both Antwerp and Spain and
permitted only on the Exchange in London.30 London fostered an insur-
ance industry that made the calculation of the probability of human tes-
timony its business. The theatrical enterprises London also fostered
made it, I suggest, their business as well.
Notes
1. Theodore B. Leinwand, Theatre, Finance and Society in Early Modern England
(Cambridge University Press, 1999), pp. 15–18, 115; Michael Ferber, “The
Ideology of The Merchant of Venice,” English Literary Renaissance 20 (1990),
438. This essay was originally written for the 2003 Shakespeare Association
seminar on Risk and Catastrophe, organized by David Glimp and Julian
Yates. Thanks to them and to the seminar participants for their thoughtful
remarks and suggestions. Thanks also to Karen Cunningham for a helpful
reading of the essay in anticipation of its appearance here.
2. David Hume, A Treatise of Human Nature, 2nd ed., ed. P. H. Nidditch (Oxford:
Clarendon Press, 1978), pp. 438–48.
3. Lorraine Daston, “Fortuna and the Passions,” Chance, Culture and the Literary
Text (Michigan Romance Studies 14), ed. Thomas M. Kavanagh (Ann Arbor, MI:
Michigan Romance Studies, 1994), p. 36. I acknowledge Daston’s influence
on my reading of Hume throughout.
4. Hume, A Treatise, p. 440.
5. The Merchant of Venice, 1.1.8, rev. ed., ed. M. M. Mahood (Cambridge:
Cambridge University Press, 2003). I follow Mahood (pp. 191–95) in desig-
nating Antonio’s business associate Salarino rather than Salerio as in most
other editions.
6. Marc Shell, Money, Language, Thought: Literary and Philosophic Economies from
the Medieval to the Modern Era (Berkeley, CA: University of California Press,
1982), p. 54 n. 19; see also Ferber, “Ideology,” 438 n. 10. Antonio’s insistence
that “My ventures are not in one bottom trusted, / Nor to one place; nor is
my whole estate / Upon the fortune of the present year” (1.1.42–44) does not
argue a recognition of probability to the extent it might appear. As Ferber
points out, “it seems that the bottoms are entirely his own, so that when they
miscarry he must absorb the entire loss” (“Ideology,” 438 n. 10). Shell sug-
gests that Antonio may not have insured his ventures because he is overcon-
fident or careless, or because insurance for him seems too much like taking
or paying interest, which he says he refuses on principle.
7. Thomas Rymer, Short View of Tragedy, in Critical Works, ed. Curt A. Zimansky
(New Haven, CT: Yale University Press, 1956), p. 86.
8. Rymer, Short View, p. 142.
9. On tontine life insurance see William R. Scott, The Constitution and Finance of
English, Scottish and Irish Joint-Stock Companies to 1720, vol. 3 (Cambridge:
Cambridge Univeristy Press, 1911), pp. 368–69.
10. Rymer, Short View, p. 134.
11. See Joel Altman, “ ‘Preposterous Conclusions’: Eros, Enargeia and the
Composition of Othello,” Representations 18 (1987), 129–57.
12. Gerard Malynes, Consuetudo, Vel, Lex Mercatoria, or, The Ancient Law-Merchant.
Divided into three Parts: According to the Essential Parts of Trafficke (London:
Adam Islip, 1622), p. 149.
13. For “Of Assurances” and “Of Friendly-Societies,” Daniel Defoe’s innovative
schemes to institute personal injury insurance for mariners, see An Essay
Upon Projects, ed. Joyce D. Kennedy, Michael Seidel, and Maximillian E.
Novak (New York: AMS, 1999), pp. 46–57. On the history of compensation
140 Luke Wilson
for personal injury in early English law see Luke Wilson, “Monetary
Compensation for Injuries to the Body, A.D. 602–1697,” Money in the Age of
Shakespeare: New Economic Essays on Renaissance Literature, ed. Linda
Woodbridge (London: Palgrave, 2004), pp. 19–37.
14. The first recorded British life insurance policy was dated June 18, 1583, and
was taken out by Richard Martin, citizen and alderman of London, on one
William Gibbons; Trevor Sibbett, “Early Insurance and the Royal Exchange,”
The Royal Exchange, ed. Ann Saunders (London: London Topographical
Society, 1997), pp. 79–80. Though fire insurance was not developed on a
wide scale until after 1666, it was available in England through the ancient
guild system as early as the eleventh century, and cattle and crop insurance
is at least as old; Karl H. van D’Elden, “The Development of the Insurance
Concept and Insurance Law in the Middle Ages,” The Medieval Tradition of
Natural Law, ed. Harold J. Johnson (Kalamazoo, MI: Medieval Institute
Publications, 1987), p. 195. Life insurance seems to have been a more recent
innovation, and as such deserves further study; see Malynes, Consuetudo,
p. 149; Chris Lewin, “1848 and All That,” The Actuary November 1991, part 2,
p. 35 (Order #s 113–19); William West, The First Part of Symbolaeography,
Which May be Termed the Art, or description, of Instruments and Precedents
(London, 1603), sig. Qq5–Qq5v (transcription of the full text of a life insur-
ance policy dated May 14, 1596).
15. On early marine insurance in the Mediterranean region, see C. F. Trenerry,
The Origin and Early History of Insurance, Including the Contract of Bottomry
(London: P. S. King, 1926). J. S. Kepler, comparing the “Booke of Orders” with
the Antwerp Ordinance of Assurances of 1563 and the Spanish Insurance
Ordinance of 1556, concludes that “at the time the London orders were
drafted there were more possibilities for reducing risks on the Royal
Exchange than had been previously available on the lawful insurance mar-
kets of the two greatest ports in Europe, Antwerp and Seville”; “The
Operating Potential of London Marine Insurance in the 1570’s: Some
Evidence from ‘A Booke of Orders of Assurances within the Royall
Exchange,’ ” Business History 17 (1975), 52.
16. In 1574–75 the Privy Council had directed that the Lord Mayor of London com-
pile a list of regulations to govern insurance matters; BM Harleian MS 5103,
fols. 158–85, “A Booke of Orders of Assurances within the Royall Exchange,
London,” is probably a draft of this list, compiled between 1577 and 1585
(Kepler, “Operating Potential,” 46–47; the document is excerpted in Lewin,
“1848”). Kepler argues that although “the provisions of the draft orders were
[probably] neither generally known in any official form nor widely enforced”
(47), they are likely to “represent the attitude not only of the drafters but of the
London merchant community” (48). A patent of monopoly for brokering
insurance policies was granted in 1576 (Kepler, “Operating Potential,” 45;
Sibbet, “Early Insurance,” p. 78); this provided for the establishment of an
Office of Assurances in the Royal Exchange. Violet Barbour notes that similar
offices were not established in the major European cities in Holland, Germany,
and France until later in the century; “Marine Risks and Insurance in the
Seventeenth Century,” Journal of Economic and Business History 1 (1928–29)
572–73. The 1601 parliament enacted a statute providing for the regulated
adjudication of insurance disputes; see 43 Eliz. c.12 in Anno xliii Reginæ
Elizabethæ (London, 1601), sig. E3v–E4v.
17. Malynes, Consuetudo, p. 150.

18. J. H. Baker, “The Law Merchant and the Common Law Before 1700,”
The Legal Profession and the Common Law (London: Hambledon, 1986),
pp. 341–68.
19. W. J. Jones, “Elizabethan Marine Insurance: The Judicial Undergrowth,”
Business History 2 (1960), 53–66. In 43 Eliz. c. 12 (Anno xliii sig. E3v–E4v) the
Lord Chancellor was authorized to direct that such suits be heard by
“the Judge of the Admiraltie for the time being, the Recorder of London for
the time being, two Doctors of the Civil Lawe, & two common Lawyers, and
eight grave and discreete Merchants, or to any five of them.” This group is to
be authorized “to heare, examine, order and decree all and every such cause
and causes concerning policies of Assurances, in a briefe and summarie
course, as to their discretion shall seeme meete, without formalities of plead-
ings or proceedings.” They are to have the right to summon the parties to
come before them, as well as to commit those refusing to jail. They are to
meet at least once a week, “in the office of the Assurances, or in some other
convenient publique place by them to be assigned” (sig. E4). Further, anyone
dissatisfied with a judgment in this court may appeal to the Chancery; the
Chancellor or Lord Keeper will have authority to reverse or affirm judgments
coming out of this commission (sig. E4–E4v). On the limited efficacy of this
court, however, see Barbour, “Marine Risks,” 575.
20. Malynes, Consuetudo, p. 467 (sig. Rr6).
21. On reinsurance see “Booke of Orders” #11, excerpted in Lewin, “1848,” part
1, p. 34.
22. Quoted in Jones, “Elizabethan Marine Insurance,” 60.
23. Malynes, Consuetudo, p. 149 (sig. O3). By the late seventeenth century, pre-
miums for lost not lost policies could be as high as 40 percent (Charles
Molloy, De Jure Maritimo et Navali: or, a Treatise of Affaires Maritime, And of
Commerce [London, 1676], sig. Dd2); see also Barbour, “Marine Risks,”
592–93; Kepler, “Operating Potential,” 49. As one might expect, the potential
for fraud was also high. Barbour (584–85) mentions Pepys’s dismay that he
had missed an opportunity for such a fraud involving insurance on a ship
“lost or not lost” when he had inside information about its safe arrival.
24. Lewin, “1848,” part 2, pp. 34, 35 (Order #120).
25. Lewin, “1848,” part 2, p. 35 (Order #96).
26. Othello, 1.3.1–44, ed. E. A. J. Honigmann (Walton-on-Thames: Thomas
Nelson, 1997). On this scene see Altman, “Preposterous Conclusions.”
27. On “salutary anxiety” see Stephen Greenblatt, Shakespearean Negotiations
(Berkeley, CA: University of California Press, 1988), pp. 142–46. This preser-
vation of social or spiritual liability goes some distance toward redeeming
generic insurance from Antonian objections.
28. On the obscenity of Antonio’s refusal to manage risk see Wilson, “Monetary
Compensation,” pp. 32–33.
29. Bassanio and the risky business of the casket test do not provide as much of
an outpost for the probable as might be supposed, though certainly this is
one good place to look. It is true that Bassanio, perhaps with a little help
from Portia, works out a plausible (and apparently correct) rationale for why
the lead casket is a good choice. On the other hand it is striking that the
inscription on that casket – “Who chooseth me, must give and hazard all he
hath” (2.7.16) – is no more relevant to that casket than to the others, nor to
142 Luke Wilson
Bassanio than to the other suitors (and certainly Bassanio does not risk his
own money, as the others do, but rather Antonio’s); and Bassanio’s choice,
while reasoning from the visible evidence, is described by the scroll within
the lead casket as a choice “not by the view” (3.2.131) – in other words in
spite of it, and, implicitly, in accordance instead with blind faith; Bassanio
chooses on the basis at once of a subtle reading of the evidence and by disre-
garding it. This is something other than probabilistic reasoning.
30. Kepler, “Operating Potential,” 51.
9
Noises Off: Participatory
Justice in 2 Henry VI
Lorna Hutson
I want to begin with a murder inquiry. Actually, I want to begin by

noticing how odd that term sounds in relation to the Renaissance:
“a murder inquiry.” But something similar happens in act 3 of the play
now known as part 2 of Henry VI (1590–92). The stage directions and
speeches vary considerably between the Quarto (Q) and Folio (F), but it
is clear that this murder sequence is conceived similarly in both ver-
sions. The central scene is act 3, scene 2. In F, this scene opens with the
stage direction: Enter two or three, running over the stage from the murder of
Duke Humphrey.1 In Q, a fuller stage direction tells us that we see first two
men smothering Humphrey in his bed, and then the Duke of Suffolk
coming toward them.2 We learn from the next exchange between the
murderers and the Duke of Suffolk that Duke Humphrey is to appear to
have died peacefully in his bed: “Have you laid fair the bed?” asks
Suffolk (3.2.11) in F, and in Q he asks them to smooth down the
bedclothes.3 The king and peers enter: this is the appointed time of
Humphrey’s trial for trumped-up charges of treason, on which we saw
him arrested and taken into custody in the previous scene. The king is
just expressing the unlikely hope that proceedings against Humphrey
will be in accordance with “true evidence, of good esteem” when the
announcement is made: Humphrey has been found “Dead in his bed.”
Confusion ensues: the king faints; his queen, Margaret, remonstrates
with him for seeming to cast suspicion on her. Then the earls of Warwick
and Salisbury enter, reporting a rumor that the commons are ready to
commit violence, believing their beloved duke to have been murdered.
The king instructs Warwick to “view” Humphrey’s body. Both F and Q
indicate that the bed is now onstage. Warwick then vows solemnly that
he believes Duke Humphrey to have been murdered, and when asked
143
144 Lorna Hutson
for “instance,” replies with this speech:
See how the blood is settled in his face.

Oft have I seen a timely-parted ghost
Of ashy semblance, meagre, pale and bloodless
...
But see, his face is black and full of blood;
His eyeballs further out than when he lived,
Staring full ghastly like a strangled man;
His hair upreared, his nostrils stretched with struggling,
His hands abroad displayed, as one that grasped
And tugged for life, and was by strength subdued.
Look on the sheets: his hair, you see, is sticking;
His well-proportioned beard made rough and rugged,
Like to the summer’s corn by tempest lodged.
It cannot be but he was murdered here.
The least of all these signs were probable. (3.2.160–78)4
What is this speech doing here? Is it just the rhetorical equivalent of a

cinematic close-up?5 It seems rather to display a type of forensic reason-
ing associated with the medical-legal hermeneutics and literary expecta-
tions of late nineteenth-century discourse. The model here is clearly a
legal one. The word “view” spoken first by the king (“Enter his chamber,
view his breathless corpse” [3.2.132]) and then by Warwick (“Come
hither gracious sovereign, view this body” [3.2.149]) is charged with evi-
dential significance as the technical term for the coroner’s inquest.6 The
coroner was required to enquire into unexplained deaths super visum
corporis, on the viewing of the corpse. “He shall see the dead bodie when
he doth make the inquirie, or otherwise the inquirie is not good,” as
Ferdinando Pulton wrote in De pace Regis.7 By the golden age of detective
fiction, the 1920s and 1930s, the coroner’s inquest had become a famil-
iar literary set-piece. Inquests are frequent, for example, in Agatha
Christie’s novels, where medical experts are frequently wheeled on to
give evidence about the case for poisoning, strangling, or whatever.8
While it is never the medical expert himself whose testimony moves the
reader closer to the case’s solution, it remains obvious that his particular
inferential expertise – assessing how long a poison might take to work,
when it might have been administered, and what substance might have
disguised the taste, for example – bears a resemblance to the inferential
processes called into action by what Barthes termed the “hermeneutic
code” at work in the classic realist novel.9 As Terence Cave, following
Participatory Justice 145
Carlo Ginzburg, puts it: “The sign of recognition in drama and narrative
fiction belongs, then, to the same mode of knowledge as . . . the clue,
the fingerprint or the footprint and all the other tracks and traces that
enable an individual to be identified, a criminal to be caught, a hidden
event or state of affairs to be reconstructed.”10
This implicit resemblance between detection and the work of reading
as deduction or inference from material signs underlies the prevalence
of theories which relate the development of detective fiction in its clas-
sic phase (c.1880–1930) to the emergence of an evidential paradigm
according to which the probability first of natural religion, and then of
evolutionary biology, was held to inhere in the legibility of a connected
“chain” of circumstances, or facts. As religious faith crumbled, popular
post-Darwinian science offered the idea that geological and evolution-
ary narratives might be constructed from reading the signs and clues left
in nature, while Arthur Conan Doyle’s literary detective and his heirs
transferred the illusion of the infallibility of a methodologically similar
medico-forensic deduction to the realm of narrative fiction.11
The coroner’s inquest, then, might be said to be an instance of the
identification of narrative desire with scientifically informed deduction
or inference from the material traces of a crime such as characterizes the
emplotment of detective fiction and, to some extent, the realist novel.
Yet, as Terence Cave and John Kerrigan have noted, the detective story
also inherently resembles the classic Aristotelian “well-made” plot. Cave
invokes the celebrated example of Sophocles’ Oedipus as “an instance of
an ‘analytic’ plot, in which the crime is discovered progressively, yet
always retrospectively.”12 However, while some sort of parallel is then
implied between the Greek legal and scientific context for Sophocles’
and Aristotle’s interest in dramatic probability and the Victorian scien-
tific and legal culture which makes a moral hero of medical forensics in
Sherlock Holmes, those who draw the parallel define it in opposition to
early modern English dramaturgy and legal process.13 Literary histories
that map the emergence of novelistic narrative and the detective plot on
to the development of evidential paradigms in eighteenth- and
nineteenth-century science and penal law tend to oppose these
paradigms to an earlier emphasis on “irrational” proof – proof by oath,
for example.14 Social histories, likewise, oppose an irrational “reliance
on providence to discover murder” which characterizes the narratives of
crime in the sixteenth and seventeenth centuries to the “greater cer-
tainty in detection offered by advances in policing, evidence-gathering
and medico-legal standards of proof” in criminal law and in narratives
from the eighteenth century onward.15
146 Lorna Hutson
In contexts such as these, Warwick’s speech in 2 Henry VI appears

something of a literary and legal-historical anomaly. On the one hand,
this “rare and early example of forensic reasoning” is realistic enough to
have provoked twentieth-century critics into arguing over whether
the signs adduced by Warwick point to death by strangulation or
suffocation.16 On the other, the speech’s engagement with the problem-
atic relationship between evidential coherence and proof of guilt is not
one which appeals, after the manner of the detective novel, to the
dramatic audience’s hermeneutic desire, in that we already know that
Humphrey has been murdered, and by whom. Moreover, while
Warwick’s speech establishes the guilt of Suffolk and Cardinal Beaufort
as open knowledge (they both die guilty of avenging deaths in subse-
quent scenes: 3.3 and 4.1), it crucially does not vindicate legal procedure
itself from the arbitrariness and corruption with which it has been
tainted since the play’s earliest scenes.
For if 2 Henry VI may be characterized, as it has been by Emrys Jones,
as a “commonwealth tragedy,” it is so in that it imagines the “common-
wealth” primarily in terms of the administration of justice. From the
start the play features “a striking large number of trial scenes, scenes
which show justice being administered.”17 What is more, these trial
scenes tend to cast doubt on the justice and effectiveness of their modes
of proof. In 1.3, for example, the apprentice Peter Thump petitions the
Duke of Suffolk (mistakenly thinking he is Duke Humphrey, Protector of
the Realm) with an appeal against his master, Horner, for treasonably
declaring the Duke of York to be the rightful heir to the throne. The sub-
sequent trial by battle held to decide their cause in 2.3, though proposed
by Duke Humphrey himself, does nothing to promote confidence in
this kind of law. Horner, the worse for drink, is beaten and confesses
treason with his dying breath (2.3.94). But York’s comment to the victo-
rious apprentice (“Fellow, thank God and the good wine in thy master’s
wame” [2.3.96–97]) gives voice to a skepticism about the divine origin of
this proof of guilt, a skepticism exacerbated by the inseparability of
Thump v. Horner from Suffolk’s opportunistic plot to discredit York and
prevent his being regent in France (1.3.165–96).18
In the same scene in which Suffolk sees his opportunity in Thump’s
charges of treason, we also learn of his plot to entrap Duke Humphrey’s
wife, Dame Eleanor Cobham, into treasonably consulting a conjuror as
to the fate of the king (1.3.89–92). When York arrests Dame Eleanor in
the midst of these proceedings, he congratulates Buckingham on this
“pretty plot” of legal entrapment (1.4.55). Eleanor’s subsequent warn-
ings to her husband of his vulnerability to the same fate fail to shatter
his idealistic conviction that legal prosecution cannot take place with-
out real cause for suspicion (“I must offend before I be attainted,” he
replies to her warnings that he, too, may be “snared” [2.4.54, 59]), but
by this stage in the play the sense of law as an elastic medium of aristo-
cratic power is overwhelming. So it is no surprise to find Humphrey, in
the first scene of act 3, harassed and baited by a chorus of accusers in
Parliament, who ring the changes on manifestly trumped-up charges of
treason, which conclude, sinisterly, with Suffolk’s charges of “mightier
crimes” as yet undisclosed, from which, he threatens, Humphrey will
not “easily purge” himself (3.1.104–38). Worse, there is even a disquiet-
ing sense, in this scene, that Humphrey himself, though opportunisti-
cally accused, is not entirely innocent of his enemies’ charges that he
himself has abused the law in devising “strange tortures” for guilty
offenders (3.1.122). The audience may recall at this point the episode, in
2.1, of Humphrey’s ingenious discovery and exposure of the fraudulent
miracle of the man who claimed to have been cured of his blindness by
St. Alban. Some critics have read this scene, derived from John Foxe, and
in turn from Thomas More, as Shakespeare’s proof of Humphrey’s pru-
dent government and excellence in judgment.19 I am persuaded, how-
ever, by Emrys Jones’s argument that Shakespeare’s adding the element
of pretended lameness, and consequently altering Humphrey’s punish-
ment of the beggar and his wife from being set in the stocks to being
“whipped through every market-town / Till they come to Berwick”
(2.1.154–55), makes us “find Gloucester’s severity distasteful,” heighten-
ing our awareness of “the element of cruelty and even sadism which
may enter into the administration of justice.”20
The opening two acts of the play may be seen, then, as a sequence of
intertwined plots of legal entrapment, plots of cynical manipulation of
the law by the government’s “baddies” (primarily the Duke of Suffolk,
Queen Margaret, and Cardinal Beaufort), which are only facilitated by
the culpable blindness of the government’s “goodies” (Henry VI and
Humphrey, Duke of Gloucester) to the vulnerability of law to being so
abused. In the turning point of the play’s action – the scenes of
Humphrey’s aborted trial, his secret murder, and the unleashing of pop-
ular anger in the aftermath of that murder – we have the “coroner’s
inquest,” made by Warwick, with which I began. This speech, voicing
Henry’s and the commons’ grief, anger, and suspicion at the news of
Humphrey’s sudden death, articulates a certain emotional and ethical
investment in the probative procedures of law. But this investment
appears to be misplaced: subsequently, Warwick’s speech seems only to
have served to precipitate an outbreak of popular rage against law itself.
148 Lorna Hutson
Epitomized in Dick the Butcher’s famous suggestion “let’s kill all the
lawyers” (4.2.71), Shakespeare’s depiction of the Cade Rebellion of 1450
as a movement of murderous hostility directed specifically at the literate
representatives of the law is notoriously unhistorical, composed as it is
from accounts in Holinshed of the Peasant’s Revolt of 1381.21 While crit-
ical interpretations of Shakespeare’s depiction of the Cade Rebellion
have ranged politically from Philip Brockbank’s Tillyardian appreciation
of its imagery of disorder, through Stephen Greenblatt’s new historicist
and Richard Wilson’s cultural materialist denunciations of its bourgeois
brutality, to Annabel Patterson’s liberal critique of Wilson, few critics
engage seriously with the question of why Shakespeare chose to depict
the Cade Rebellion as specifically antilegal in impetus.22 A partial excep-
tion is Craig Bernthal, who argues that Shakespeare’s portrayal of Cade’s
“legal carnival” might be interpreted “as an unmasking of the Tudor
(and all other) judicial systems: a demonstration that judicial decision-
making is really just the exercise of raw power cloaked in the rhetoric of
equitable language.” Bernthal points out that the last two acts of the
play parodically echo and invert the structure of the first two, proceeding
as a series of trials, or scenes of judgment, in which Jack Cade pro-
nounces sentence on the hapless representatives of the common law:
the Clerk of Chatham (4.2.78–101), Lord Saye (4.7.22–111), and, in Q ,
the Sergeant-at-law (4.9.129–31).23 Cade, Bernthal goes on to argue, “is
not that much different from any other judge. He merely shows the
judicial emperor to have no clothes by mimicking judicial language
whenever he renders an obviously unjust decision.”24 But if Cade’s rebel-
lion, depicted thus, critiques by inversion the prevalent abuses of the law
by the governing classes as represented in the play’s first two acts, what
are the emotional and political effects of Warwick’s speech of forensic
reasoning disclosing the probability of Humphrey’s murder?
In what follows I propose that the answer to that question will give us
a more nuanced account of the play’s presentation of the relations
between governing classes and the commons than any of the current
critical positions ranged along the spectrum from post-Tillyard celebra-
tions of Shakespeare’s reimposition of order to cultural materialist
denunciations of Shakespeare’s caricature of a 1590s London mob in the
play’s “venomous fourth act.”25 I also propose that finding the answer
requires us to look for the speech’s source in developments in the crim-
inal law which provoked its nonprofessional official representatives –
justices of the peace and coroners – into adapting the rhetorical
resources of Roman forensic oratory to the changing participatory
structures of inquest, jury trial, and pretrial examination.
As we have already seen, Warwick’s speech is, according to most liter-

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

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

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

Jack brings against him exactly this charge:
Thou hast appointed justices of peace to call poor men before them
about matters they were not able to answer. Moreover, thou hast put
them in prison, and because they could not read, thou hast hanged
them, when indeed only for that cause they have been most worthy
to live. (4.7.38–43)40
If we accept the Foucauldian critical view, Jack Cade’s charge is

absolutely valid. The introduction of written, pretrial examinations
gives all the control and advantage to the literate (though Jack’s criti-
cism is probably directed no less against the privilege of clergy, which, in
its newly secularized form, enabled literate first-time offenders to escape
the gallows). This, then, would explain why Shakespeare borrowed ele-
ments of the antiliterate and antilegal complaints of the Peasants’ Revolt
of 1381 in his depiction of the quite different Cade Rebellion of 1450.
But this thesis would not be able to account for the intense emotion
with which the murder of Duke Humphrey is surrounded, for it would
require that we see the Cade Rebellion as simply a logical consequence
of the reduction of judicial procedure, from the very outset of the play,
to a cynical manipulation of power by the literate and legally learned. If
Cade, as Bernthal argues, does actually expose judicial decision making
as raw power cloaked in the rhetoric of equity, what does this exposure
say about a justice system that is not reducible to judicial decision
making? For the participatory justice system in which the coroner’s
inquest functioned and into which the justice’s pretrial examination
was inserted operated in some tension with judicial power, in that it was
the jury’s verdict on the facts that determined the judge’s sentence. Thus
the pretrial examination, in which the justice took down witnesses’ var-
ious accounts of the facts, did not produce the equivalent of the written
deposition of a witness in a Continental inquisitorial trial, nor did it pre-
empt the oral jury trial. The evaluation of evidence was the preserve of
the jury in an oral situation, and Langbein has plausibly argued that the
institution of pretrial examinations helped to breathe new life into the
declining institution of the self-informing jury or inquest of neighbors
by organizing evidence before the trial, and turning the jurors into eval-
uators of evidence. Moreover, the justice and the coroner did not initiate
criminal proceedings. Their help was, rather, enlisted by neighbors who
had seen something suspicious or by victims of theft or violent assault.
The work of Cynthia Herrup and, more recently, Malcolm Gaskill

clearly shows that the interactions between ordinary people and the for-
mal representatives of the law – constables, coroners, and magistrates –
cannot be understood simply in class-confrontational terms.41 Herrup
offers countless examples of neighbors doing the detective work, and
bringing evidence to the justice.42 Gaskill, likewise, documents the late
sixteenth to late seventeenth century in England as a transitional period
in terms of lay participation in the work of detection and bringing sus-
pects before the law. By about 1800, he writes, the professionalization of
medical forensics meant that popular testimony and detective work “no
longer carried as much weight either when JPs and coroners first heard
it at pretrial stage, or most especially when they forwarded it as evidence
in a court of law.”43 But for the period he documents, he offers a wealth
of instances in which ordinary people – neighbors, kin, and friends of
victims – actively engaged in what he calls “popular forensic
techniques” in order to gather evidence and present it as convincingly
as possible before the coroner or justice. Gaskill, like Herrup, gives us
examples of men and women exhuming bodies or noticing suspicious
marks on bodies they were preparing for burial, measuring footprints
and skeletons, and reporting the evidence of rumor, of dreams and
apparitions. This is clearly not an inquisitorial model, nor does it bear
any resemblance to the “conditioned passivity” with which we, nowa-
days, allow professional authorities to step in and take over when mur-
der enters our lives. Rather, it seems, the ordinary parishioners of the
sixteenth and seventeenth centuries made use, to the extent that they
could, of the scope for redress afforded by official procedures, deploying
their own forensic strategies within the available boundaries.44
Gaskill’s findings expose the positivistic bias of those historians who
assume that the lack of any law of evidence in this period points to a
complete disregard for the evaluation of likelihood, probability, and
coherence in narratives of the facts, whether at pretrial stage or before
the jury. In fact, as Gaskill shows, awareness of the forensic or evidential
significance of words and deeds is popularly pervasive, and the aware-
ness itself conditions behavior. People act, speak, and report the actions
and speech of others with the evidential significance of their words and
deeds in mind. Murder victims in both manuscript and print accounts
tend to announce their own impending deaths, to cry out “murder” or
“I am slain,” or to insist that they did not strike the first blow. But the
apparent nonnaturalism of these utterances may be explained by aware-
ness, whether in the victim or in the witness reporting events, of the
154 Lorna Hutson
evidential status of “last dying words.” The words themselves are foren-
sically oriented to enlist the help of a justice in bringing about a trial.45
The work of Gaskill and Herrup also enables us to see that the persist-
ence of a rhetoric of providential disclosure, of the community as
merely an agent of divine justice, along with frequent recourse to so-
called irrational proofs such as cruentation, or the belief that the vic-
tim’s body will bleed afresh in the presence of the murderer, are not in
any way incompatible with the development of what I am trying to
identify as “forensic” or “detective” habits of mind among ordinary peo-
ple. Gaskill gives numerous examples of manuscript information and
printed accounts in which the bleeding of the corpse is one among
many proofs alleged against a suspect; it tends to confirm other causes
of suspicion, rather than acting as a divine proof all on its own.
In one printed account of a murder which took place in 1656, of
which records also exist in manuscript, we can see a very vivid example
of how the previous century or so since the Marian Bail and Committal
statutes had produced habits of popular collaboration with the agents of
official justice. As a result of the increasingly evidentiary orientation of
the work of coroners and justices of the peace, ordinary people were
manifesting all the forensic, detective, and narrative skills – the skills of
“putting together a case” before examination by a justice – that I have
been referring to. The case was that of the murder of John Neil, a clock-
maker, stationer, and merchant of Glasgow, who was found by the road
between Waltham and Theobalds by laboring men going to work at
about six in the morning of February 26, 1656.46 The body “was brought
under the examination of a Coroners Jury,” but they could not give a
verdict, “wanting evidence in the case.”47 However, Mr. Neil’s London
friends, who had been expecting him to arrive presently in London,
were concerned at his nonappearance, and, hearing that there had been
a body found near Waltham, went there and, to their distress, found
that the stabbed and lifeless body was indeed their friend’s. About the
same time, the innkeeper who had given Mr. Neil lodging the night
before his death also heard and came to see whether the man killed and
the man he had lodged were one and the same. His intention was to
inform a justice of the peace if it were the case. But before he could see
the corpse or meet with a justice, Mr. Neil’s friends
met with him, (whom indeed they thought as yet they had reason to
suspect) and caused him to go along with them to see the dead body,
which he did, and said he knew him well: then they caused him to
touch it, (as is usual in cases of suspition) but there appeared no
Symptom of guilt in him: and for further proof of his innocence, he

became the key (in the hand of God) wherewith the whole truth was
opened: for going with Mr Neils friends to the Justice, he gave such a
lively description of the party that lay with Mr Neil at his house, that
one of them had a sudden persuasion wrought at his heart, that he
knew the man, such a one being lately come to London from Scotland,
having store of money, and good clothes: which persuasion of his, he
immediately imparted to some of the rest.48
Here we see both the recourse to an irrational mode of proof – the

innkeeper is required by Mr. Neil’s friends to prove his innocence by
touching the body – and the deployment of a rhetoric of providential
consequence. But neither the ordeal nor the providential emplotment
obviates the salient fact that Mr. Neil’s friends themselves engage in the
detective work that will uncover his murderer. Once the innkeeper has
described Mr. Neil’s traveling companion, and one of Neil’s friends
recalls him and where he lives in London, the rest “procured a warrant,
and a Constable to execute it” and searched the Westminster lodgings of
the suspected party, where they found “divers papers belonging to
Mr. Neil,” which they “sealed up for the present, and carried him to the
Gatehouse, till . . . they might examine him before a Justice of the
Peace.” The justice of the peace in this case was Roger Hill (d. 1667),
whose examination notes are preserved in BL Add MS 46, 500. Hill item-
ized each piece of evidence, following each item with the word “testi” or
“witness,” and a name following to testify to its authenticity and signif-
icance. Thus, for example, Mr. Neil’s notebooks were found on Dick’s
person when he was apprehended, and the justice has Mr. Thomas
Underwood, stationer of London, testify to his knowledge of these note-
books, which he identified as books of Mr. Neil’s riding expenses on his
commercial trips to London.49 Although the author of the printed pam-
phlet affirmed the innkeeper to be the key to the truth “in the hand of
God,” the hands of Mr. Neil’s London friends might equally be said to
have been the agents of disclosure, especially in the dexterity with
which they made use of the procedures of the constable’s warrant, and
the deliberation with which they prepared the evidence before they
took it to the justice.
It is worth pointing out that what Gaskill identifies as a traditional
reliance on “providence to discover murder and the voice of the people
to prove it” (which he says is displaced by professional policing) does not
look so very traditional if one looks back to the practices of taking sanc-
tuary and abjuring the realm or of doing private penance for homicide
156 Lorna Hutson
confessed before the priest, both of which were fifteenth-century alter-

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

And sees fast by a butcher with an axe,
But will suspect ’twas he that made the slaughter?
...
Although the kite soar with unbloodied beak?
Even so suspicious is this tragedy. (3.2.188–94)53
Warwick’s speech is finely ambiguous. One critic notes of his earlier

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

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

they wrote dramas in the subgenre known as “Christian Terence.”
In The Origins of Shakespeare, Emrys Jones suggested a context for
2 Henry VI’s civic humanist concerns, and specifically its concern with
civil war, in the sense of crisis after the Babington plot, and in the
reprinting of plays such as Gorboduc in 1590, or George Gascoigne’s and
Francis Kinwelmarsh’s tragedy Jocasta, reprinted in Gascoigne’s works in
1587. In terms of plotting, however, it needs to be pointed out that
Shakespeare’s management of these political materials in 2 Henry VI
owes more to the reformed intrigues of “Christian Terence” models than
has been realized. In one such play, George Gascoigne’s Glasse of
Government (1575), a fallacia or process of false inference worthy of
Phormio himself is perpetrated by a pimp early on in act 2 in order to
enable two promising young students to take time from their studies
and visit a nearby prostitute. The pimp, Eccho, tells the students’
schoolmaster that they are kin to the city’s highest magistrate, the
Markgrave, and that the Markgrave has sent for them. In act 4 of
the play, after the students have exploited this excuse to the full, the
Markgrave apprehends both pimp and prostitute and wants to imprison
them for criminal offences, but can find no proof of their crimes.
“[T]hough I desire . . . to see them condingly [sic] corrected,” he says,
“yet with out proofe of some offence I should therein commit a wrong.”
At this point in the play, the schoolmaster inadvertently reveals Eccho’s
story of his students’ supposed kinship to the magistrate, exposing the
pimp’s criminal deception. At this stage in the plot, then, the fallacia
that was the intrigue itself has turned into evidence against its inventor:
the Markgrave confidently proceeds to punish.60
Just as in Gascoigne’s rather schematic plot, so in Shakespeare’s far
more skillful and complex one, intrigues and fraudulent manipulations
of the law characterize the first two acts. In other words, Shakespeare has
adapted the Plautine or Terentian model of forensic intrigue as a process
in which the villains are engaged.61 But where an earlier generation of
civic humanist writers, such as Gascoigne, simply turned the errors of
comic intrigue into deceptions visible to and punishable by a “good
governor,” Shakespeare presents his good governors – Henry VI and
Humphrey, Duke of Gloucester – as exhibiting far too simple a faith in
the transparency of evidential processes, and in the inability of justice to
be arbitrarily manipulated. By act 3, so many corrupt or dubious trials
and judgments have passed for truth and justice that Henry’s continu-
ing faith in the immanence of God in judicial process appears naïve in
the extreme; the law appears indeed to be nothing but aristocratic power
160 Lorna Hutson
cloaked in procedure. Our sense that this is so reaches its climax after
the murder of Duke Humphrey with the guilty Queen Margaret’s
attempt to deflect suspicion by remonstrating with her husband for
showing more concern for the dead duke than for herself (3.2.73–121).
“Was I for this,” she exclaims to Henry,
nigh wrecked upon the sea,

And twice by awkward winds from England’s bank
Drove back again unto my native clime?…
Yet Aeolus would not be a murderer,
But left that hateful office unto thee.
The petty vaulting sea refused to drown me,
Knowing that thou wouldst have me drowned on shore
With tears as salt as sea through thy unkindness. (3.2.82–96)
This speech continues to play with the personification of the sea as

eschewing the murder that her husband will not stick to commit. In its
elaborate ingenuity, it is clearly modeled on the most famous and most
imitated epistle of Ovid’s Heroides, Dido to Aeneas. Ovid’s Heroides were
the most obvious model for representing a kind of female speech that
gave the effect of being both impassioned and forensically or legally
manipulative.62 Here the Ovidian subtext signals that Queen Margaret
is attempting to arrogate to herself the position of plaintiff, of the vic-
tim of romantic deception and breach of marital promise. This speech,
then, is a last-ditch attempt at continuing the corrupt uses of legal pro-
cedure that through the preceding two acts have characterized
Humphrey’s enemies. Margaret’s excruciatingly hypocritical perform-
ance forms a climax of this kind of fraudulent legality. It is at the end
of Margaret’s speech, when hypocritical manipulations of the law can
apparently go no further, that we have, in F, the crucial stage direction:
Noise within. Enter Warwick, and many commons.63 And Warwick speaks:
It is reported, mighty sovereign,

That good Duke Humphrey traitorously is murdered
By Suffolk and the Cardinal Beaufort’s means.
The commons, like an angry hive of bees,
That want their leader, scatter up and down
And care not who they sting in their revenge.
Myself have calmed their spleenful mutiny,
Until they hear the order of his death. (3.2.122–29)
Warwick’s passive voice, “it is reported,” subtly reconfigures, and gives

forensic weight to, what in his source (Hall’s Chronicle) has the claustro-
phobic, Tacitean feel of rumor in a world of power politics that dare not
speak out. Hall reports how Duke Humphrey was found dead in his bed
the night after his imprisonment at the Parliament of Bury in 1447. His
body, says Hall, was
shewed the lordes and commons, as though he had died of a palsy or

empostome: but all indifferent persons well knewe, that he died of no
natural death but of some violent force: some judged him to be
strangled: some affirm that a hote spitte was put in at his foundament:
other write, that he was stiffeled or smoldered between two feather
beds.64
In Hall’s account, the “viewing” of the body is part of the cover-up, and
rumor is, as a result, the only possible mode of political discourse. But in
Shakespeare’s play, the same uncertainty as to exactly what violence was
used on Humphrey – smothering or strangulation – takes a new form,
performing, in Warwick’s speech, the very act of offering the probabilities
as such – as evidence, as indeterminate or conjectural signs arousing
suspicion – to the commons in response to their request to “hear the
order of his death.”65 Warwick’s speech cuts so powerfully through
Margaret’s specious forensic rhetoric because it creates, by its mode of
address, the commons as an audience capable of judging the probability
of the facts. It turns rumor – the humming of the commons – into a
forensic scenario, and in using the word “forensic” here, I wish to
invoke its etymological connection with the Roman forum, the place of
public and political accountability.
The offstage presence of the commons, signaled by F’s stage direction,
“Noyse within,” is thus powerfully effective. As in the English criminal
justice system, it is they who initiate the call for an investigation, and in
responding to that call, Warwick enfolds us, the audience, into his
response to the commons. We feel included because the death of
Humphrey seems outrageous to us, too. Warwick’s simile of the com-
mons as an “angry hive of bees,” while intimating the threat of their
unconstrained passion, nevertheless recalls, as critics have noted, the
traditional simile of the res publica as a hive of bees common to sixteenth-
century political treatises. It thus identifies the noise of the people with
the “commonwealth” understood as the public interest, and public
accountability.66 In response to the suspicion Warwick’s investigation
162 Lorna Hutson
arouses, the commons send word, by the Duke of Salisbury, to the king,
petitioning him to banish Suffolk. Salisbury’s eloquent articulation of
the people’s demand for the banishment of Suffolk has been analyzed as
an example of Shakespeares’s qualified approval of popular protest,
in spite of the extreme instability of the political situation and the ever-
present threat of violence offstage.67 Violence, of course, does break out,
a violence which, in its memorably brutal degradation of the represen-
tatives of the law, seems shaped to avenge the all too evident judicial
corruption of the governing classes. However, in the moments before
the outbreak of this violence, the appeal to the intelligent judgment and
moral passion of the commons implied in Warwick’s forensic inquiry
offers a powerfully utopian image of participatory justice as a form of
the commons’ political agency.
Notes
1. Act, scene, and line references from the Oxford World’s Classics edition of
Henry VI, Part Two, ed. Roger Warren (Oxford: Oxford University Press, 2003)
will be given in the text. The question of the relation between Quarto (Q) and
Folio (F) texts has been the subject of much debate. Peter Alexander first
argued the case for the Quarto as a memorial reconstruction in 1929
(Shakespeare’s “Henry VI” and “Richard III” [Cambridge: Cambridge University
Press, 1929]). Stephen Urkowitz attacked Alexander’s conclusions, arguing for
both texts as Shakespearean alternatives. See Urkowitz, “ ‘If I mistake in those
foundations which I build upon’: Peter Alexander’s textual analysis of Henry VI
Parts 2 and 3,” English Literary Renaissance 18 (1988), 230–56. Roger Warren
has most recently made a measured and persuasive case for regarding F as an
authorial and “literary” text, in which the action is throughout fully moti-
vated, and Q as a reported text deriving from a performance; see Warren, “The
Quarto and Folio Texts of 2 Henry VI: A Reconsideration,” The Review of English
Studies n.s. 51 (2000), 194–207.
2. The First Part of the Contention (1594), ed. William Montgomery, Malone
Society Reprints (Oxford: Oxford University Press, 1985), p. 35. Claire
Saunders, “ ‘Dead in his bed’: Shakespeare’s Staging of the Death of the Duke
of Gloucester in 2 Henry VI,” Review of English Studies n.s. 36 (1985), 19–34,
observes that the staging of the smothering contradicts Warwick’s adducing of
signs of strangulation in F, arguing that F represents Shakespeare’s intended
staging, while Q is a record of a popular adaptation.
3. First Part of the Contention, p. 35.
4. In the Quarto, the speech is much shorter, but its medico-forensic quality is
no less clear; see First Part of the Contention, p. 37.
5. See J. P. Brockbank, “The Frame of Disorder: Henry VI,” in Early Shakespeare,
Stratford upon Avon Studies, vol. 3 (London: Edward Arnold, 1961),
pp. 73–99, 84.
6. Andrew S. Cairncross glosses “view” as “the usual term in the direction to
a coroner’s jury”; see Cairncross, ed., The Second Part of King Henry VI
(London: Methuen, 1957), p. 85. See also R. F. Hunniset, The Medieval Coroner
(Cambridge: The University Press, 1961), p. 19.
7. Ferdinando Pulton, De pace Regis et regni (London, 1615), fol. 236v.
8. Agatha Christie, The Mysterious Affair at Styles (1920; rpt. London: Harper
Collins, 2001), p. 129.
9. Roland Barthes, S/Z, trans. Richard Miller (New York: Farrar, Straus and
Giroux, 1974), p. 19.
10. Terence Cave, Recognitions: A Study in Poetics (Oxford: Clarendon Press, 1988),
pp. 250–51. Cave develops the argument of Carlo Ginzburg, “Clues: Roots of
an Evidential Paradigm,” in Myths, Emblems, Clues, trans. John Tedeschi and
Anne Tedeschi (London: Hutchinson Radius, 1990), pp. 96–125. See also
Peter Brooks, Reading for the Plot: Design and Intention in Narrative (New York:
Random House, 1984), p. 18.
11. See, on the novel, Alexander Welsh, Strong Representations: Narrative and
Circumstantial Evidence in England (Baltimore, MD, and London: Johns
Hopkins University Press, 1992). On detective fiction, see Régis Messiac,
Le “Detective Novel” et l’influence de la pensée scientifique (Paris, 1929); Ronald
R. Thomas, Detective Fiction and the Rise of Forensic Science (Cambridge:
Cambridge University Press, 1999); Lawrence Frank, Victorian Detective Fiction
and the Nature of Evidence: The Scientific Investigations of Poe, Dickens and Doyle
(London: Palgrave Macmillan, 2003).
12. Cave, Recognitions, p. 232. See also John Kerrigan, “Sophocles in Baker
Street,” in Revenge Tragedy: Aeschylus to Armageddon (Oxford: Clarendon
Press, 1996), pp. 59–87.
13. Kerrigan, Revenge Tragedy, pp. 27, 79.
14. Welsh, Strong Representations, pp. 10–11.
15. See Malcolm Gaskill, Crimes and Mentalities in Early Modern England
(Cambridge: Cambridge University Press, 2000), p. 203.
16. David Thatcher, “Cover-up: The Murder of Gloucester in 2 Henry VI,” The
Shakespeare Newsletter 50 (2000–01), 105–16, 114. Saunders, “Dead in his
bed,” imagines Shakespeare deciding how the killing should take place
offstage: “Shakespeare, on the evidence of the Folio 2 Henry VI, opted for a
simple strangulation, off stage” (23).
17. Emrys Jones, The Origins of Shakespeare, (Oxford: Clarendon Press, 1977), p. 172.
18. For an analysis of this episode, see Craig Bernthal, “Treason in the Family:
The Trial of Thumpe v. Horner,” Shakespeare Quarterly 42:1 (1991), 44–54.
19. See for example E. Pearlman, “The Duke and the Beggar in Shakespeare’s
2 Henry VI,” Criticism 41 (1999), 309–21.
20. Jones, Origins of Shakespeare, p. 175.
21. See Henry VI, Part Two, ed. Warren, Appendix B, p. 301.
22. See Brockbank, “The Frame of Disorder,” 73–99; Richard Wilson, “ ‘A
Mingled Yarn’: Shakespeare and the Clothworkers,” Literature and History 12
(1986), 164–80; Stephen Greenblatt, “Murdering Peasants: Status, Genre, and
the Representation of Rebellion,” in Representing the English Renaissance, ed.
Stephen Greenblatt (Berkeley, CA: University of California Press, 1988),
pp. 1–29; Annabel Patterson, Shakespeare and the Popular Voice (Oxford: Basil
Blackwell, 1989), pp. 32–51.
23. First Part of the Contention, pp. 52–53. See Craig A. Bernthal, “Jack Cade’s
Legal Carnival,” Studies in English Literature 42:2 (Spring 2002), 266–67.
164 Lorna Hutson
24. Bernthal, “Jack Cade,” esp. 271.

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

42. Herrup, Common Peace, pp. 67–92.
43. Gaskill, Crimes and Mentalities, p. 279.
44. Gaskill, Crimes and Mentalities, pp. 253–63.
45. Gaskill, Crimes and Mentalities, pp. 235–37.
46. A true and faithful relation of that Horrible Murder committed on the body of
Mr. JOHN NEIL, Late Stationer and Merchant of Glasgow in Scotland (London,
1656). For the identification of Roger Hill (d. 1667) as the examining justice
in this case, see J. S. Cockburn, “Introduction,” Calendar of Assize Records:
Home Circuit Indictments Elizabeth I and James I (London: Her Majesty’s
Stationery Office, 1985), pp. 98–99.
47. A true and faithful relation, p. 3.
48. A true and faithful relation, p. 4.
49. BL Add MS 46, 500, fol. 90.
50. Gaskill, Crimes and Mentalities, p. 203.
51. Barbara Shapiro, “Classical Rhetoric and the English Law of Evidence,”
Rhetoric and Law in Early Modern Europe, ed. Victoria Kahn and Lorna Hutson
(New Haven, CT: Yale University Press, 2001), pp. 64–66. Cicero,
De Inventione, trans. H. M. Hubbell (Cambridge, MA: Harvard University
Press, 1949), 2.14–51.
52. William Lambarde, Eirenarcha: or of the office of the Iustices of Peace in foure
Bookes . . . now secondly revised, corrected, and enlarged (London, 1592).
53. Quintilian, Institutio Oratoria, trans. H. E. Butler (Cambridge, MA: Harvard
University Press, 1920) 5.9; Cicero, De Inventione, 2.14ff.
54. Thatcher, “Cover-up: The Murder of Gloucester in 2 Henry VI,” 114.
55. Quintilian, Institutio, 5.9.1: “cruenta enim vestis et clamor et livor et talia
sunt instrumenta.”
56. Quintilian, 5.9.9.
57. Cicero, De Inventione, 2.43. “Post rem . . . quod cruentum gladium habuerit”
(“Pertinent events after the deed are . . . that the accused had a bloodstained
sword.”)
58. Cave, Recognitions, p. 257.
59. See Adele Scafuro, The Forensic Stage: Settling Disputes in Graeco-Roman New
Comedy (Cambridge: Cambridge University Press, 1997).
60. George Gascoigne, The Glasse of Governement (1575), in The Complete Works of
George Gascoigne, ed. John W. Cunliffe, 2 vols. (Cambridge: Cambridge
University Press, 1910), pp. 38, 82–83.
61. See Hutson, “Rethinking the ‘Spectacle of the Scaffold’: Juridical
Epistemologies and English Revenge Tragedy,” Representations 89 (Winter
2005), 30–58, 45–47.
62. See Hutson, “The ‘Double Voice’ of Renaissance Equity and the Literary
Voices of Women,” in “This Double Voice”: Gendered Writing in Early Modern
England, ed. Danielle Clarke and Elizabeth Clarke (London: Macmillan,
2000), pp. 142–63.
63. Q omits to mention the commons at this point. Roger Warren, editor of the
Oxford Shakespeare 2 Henry VI, observes that “F’s unspecific phrase ‘many
commons’ is typical of authorial ‘permissive’ directions, the writer imagining
the commons swarming on the stage.” Both F and Q keep the commons
offstage (within) for the rest of the scene.
166 Lorna Hutson
64. Hall’s Chronicles, quoted from Narrative and Dramatic Sources of Shakespeare,
ed. Geoffrey Bullough, vol. 3 (London: Routledge and Kegan Paul, 1960),
pp. 107–08.
65. In Q , of course, the smothering is shown on stage, so the audience is has no
uncertainty, but Warwick’s speech as it is found in F nevertheless performs
that uncertainty as probability.
66. See Jones, Origins of Shakespeare, p. 167.
67. Patterson, Shakespeare and the Popular Voice, p. 49.
10
Truth, Lies, and the Law
of Slander in Much Ado
About Nothing
Cyndia Susan Clegg
In 1593, more than half a decade before William Shakespeare wrote

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

concern the Spiritual, and not the Temporal Jurisdiction.” The plaintiff’s
counsel argued – successfully since the court agreed – that the action was
maintainable at the common law because a 1576 Elizabethan statute
outlawing bastardy placed actions related to that crime in the temporal
courts. But the court went even further and resolved that “If the
Defendant had charged the Plaintiff with bare incontinency, yet
the Action should be maintainable” because the slander damaged the
plaintiff’s marriage prospects.2
Sir Edward Coke regarded Anne Davies’s case as being definitive in
establishing temporal jurisdiction for slander, just as the 1583 King’s
Bench Palmer and Thorpe case had established that ecclesiastical jurisdic-
tion in slander existed only if the accusations related to spiritual crimes.
The assessment of these cases’ importance in Coke’s Reports, of course, did
not appear until 1606, and given Coke’s reputation for extending the
common law courts’ jurisdiction – especially in matters of slander and
libel – the clarity with which Coke sees distinctions between jurisdictions
benefited more from hindsight than from actual legal practice.3 Most
legal historians agree that during the 1590s court jurisdictions were often
blurred; litigants not only pursued cases where they felt the course of law
would be most swift, but they initiated actions in multiple courts. Anne
Davies’s case makes it apparent that a victim of slander could turn to
either the ecclesiastical or the temporal courts. That the defendant sought
to challenge the temporal court’s jurisdiction only after he was found to
have damaged Anne suggests a legal strategy to mitigate damages rather
than a legitimate effort to change venues. According to Martin Ingram,
during the Elizabethan period, slander cases flooded both the ecclesiasti-
cal and the temporal courts to such a degree that “the rush to take legal
action to clear sullied reputations has been called ‘a phenomenon of the
age.’ ”4 Some sense of this phenomenon’s scale, within the ecclesiastical
courts at least, appears in Ronald Marchant’s study of the consistory court
records in Elizabethan York.5 Early in Elizabeth’s reign (1561–62), of the
court’s 213 cases only 1 was for defamation, or less than one half of one
percent. In 1591, defamation accounted for 48 percent of the cases (170 of
357). According to Laura Gowing, after 1600 more than half of the
London consistory court’s cases concerned defamation.6
In either a temporal or an ecclesiastical jurisdiction, prosecuting
slander was not without its problems, as the Davies case implies.
Successfully prosecuting a slander action – or defending against it –
depended entirely upon the plaintiff’s and defendant’s credibility (or lack
thereof). When defamations were sexual in nature – as most were – the
Truth, Lies, and the Law of Slander 169
gendered construction of honesty and honor held enormous implica-

tions, especially in cases between a man and a woman, such as the
Davies case. As Anthony Fletcher has effectively demonstrated, in early
modern England “Chastity before marriage and fidelity within it was the
heart of a code of female honour”; hence an “honest” and “honourable”
woman was sexually chaste.7 “A gentleman’s honour,” however, accord-
ing to Fletcher, “was the essence of his reputation in the eyes of his
social equals, providing him with his sense of worth and his claim to
pride in his own community, contributing to his sense of identity with
that community.”8 In Anne Davies’s case, little evidence of Gardiner’s
honor – or place within the community – exists, but his not-guilty plea
and the confident assurance of his words, “I know Davies daughter
well. . . . I know very well what I say,” speak to his expectation of being
taken seriously in a situation in which Anne Davies was already
compromised. As Gowing observes,
taking sexual insult to court was hardly consistent with the ideas of
women’s honour that provided the basis for defining honesty and
dishonesty. Perfectly chaste and honourable women should not,
technically, have discussed their sexual reputation in court; self-
defence against accusations of whoredom could be seen as contribut-
ing to dishonour, in perpetuating the discourse about sex.9
Anne’s sensitivity to her credibility’s vulnerability – or more properly her

lawyer’s sensitivity – appears in the court record’s identification of Anne
as “a Virgin of good fame . . . free from all suspicion of incontinency.”
In addition to the disarray in court jurisdiction and the inherent diffi-
culty for a woman to pursue a slander action successfully in any court,
Anne’s case points to slander’s material cost in Elizabethan society, espe-
cially for a woman. Victims of slander, as Martin Ingram argues, suffered
“legal hazards, specific social consequences, humiliation and loss of
face.”10 Slander also, as the Davies case shows, threatened marriages,
since choosing a marriage partner took sexual reputation into account.11
While the secular courts offered remedies when a woman suffered mate-
rial damages from slander, only the church courts (where women could
initiate actions on their own behalf) could help repair a woman’s repu-
tation in a society in which, as Ingram points out, “sexual ‘credit’ or
‘honesty’ were, especially for women, of considerable and probably
growing importance.”12
While the Davies case offers an excellent entrée into discussing
defamation law’s relevance to Much Ado About Nothing, the play also
turns on a few other legal issues regarding slander. According to

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

and Dogberry (a role almost certainly created for the actor Will Kemp) as
one of his best clowns, but both are as important as Claudio and Hero for
understanding how slander and the law operate in the play.
The play’s attention to slander’s legal character appears early. In act 1
scene 3, Don John, Don Pedro’s bastard brother, consoles his malcon-
tented self with thoughts of discrediting the “proper squire,” the “exqui-
site Claudio” (1.3.46, 48).19 “That young start-up,” Don John pronounces,
“hath all the glory of my overthrow. If I can cross him any way I bless
myself every way” (1.3.61–64). The “way” presents itself when Don John
confirms that Claudio will marry Hero, and Borachio says that he can
“cross” the marriage. Borachio says that he will have Hero’s waiting
woman, Margaret, appear at Hero’s chamber window if Don John will go
to his brother, the prince Don Pedro, and tell him “he hath wronged his
honour in marrying the renowned Claudio . . . to a contaminated stale,
such a one as Hero” (2.2.19–24). Borachio then tells Don John to get
Don Pedro and Claudio together alone and provides Don John a script
for slander:
Tell them that you know that Hero loves me. Intend a kind of zeal
both to the Prince and Claudio as in love of your brother’s honour
who hath made this match, and his friend’s reputation who is thus
like to be cozened with the semblance of a maid, that you have dis-
covered thus. They will scarcely believe this without trial. Offer them
instance, which shall bear no less likelihood than to see me at her
chamber window, hear me call Margaret Hero, hear Margaret term me
Claudio. And bring them to see this the very night before the
intended wedding, for in the mean time I will so fashion the matter
that Hero shall be absent, and there shall appear such seeming truth
of Hero’s disloyalty that jealousy shall be called assurance, and all the
preparation overthrown. (2.2.29–45)
In Borachio, Shakespeare creates a character who not only understands

the gendered nature of sexual slander but also slanders by the law books,
and the mere mention of a “trial” is the least of it.
Most critics, when discussing slander in Much Ado About Nothing,
focus on the damage Hero suffers. While this is certainly a legitimate
concern – and one to which I will subsequently turn – I wish to begin
with the slander Don John directs at Claudio, a slander that is conceived
with extraordinary legal sophistication. According to Ingram men
brought suits for sexual slander far less frequently than women did, and
if a man did sue, it was rarely for being called a fornicator or an

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

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

Count Comfit, a sweet gallant surely. O that I were a man for his sake!
Or that I had any friend would be a man for my sake! But manhood
is melted into courtesies, valour into compliment, and men are only
turned into tongue, and trim ones, too. He is now as valiant as
Hercules that only tells a lie and swears it! (4.2.316–23)
From Beatrice’s perspective, the old order in which a man’s honor

appeared in his actions and could be relied upon without requiring a
sworn testimony has given way to a world of words, compliments, and
idle courtesy.
Don John’s compromise of Claudio, despite its grounding in sophisti-
cated legal knowledge, also shows the law’s limitations. Slander works
immediately to destroy the fabric of social relationships; legal remedies
for slander take time. When Claudio hastens to imagine the actions that
complete Don John’s empty words and readily plans to confront Hero
on her wedding day, he reveals that slander possesses a life of its own
quite outside the law. Shakespeare’s audience would have understood, as
well, the constraints imposed on slander litigation by a court system
with overlapping jurisdictions, incomplete slander prosecutions, and
limited sanctions, as S. P. Cerasano observes: “Considering the propen-
sity of Elizabethans to take charges of slander to court, this background
would have been familiar to the audience of Much Ado About Nothing,
even though it is almost entirely unfamiliar to most twentieth-century
audiences.”24
Slander, of course, does not end with Don John’s attack on Claudio’s
honor; it redoubles in Claudio’s effort to exonerate himself by pro-
nouncing Hero’s dishonor to the world. The animalistic imagery
Claudio employs to besmirch Hero reveals precisely how actively his
imagination has envisioned a “worse title” for Hero.
You seem to me as Dian in her orb,

As chaste as is the bud ere it be blown.
But you are more intemperate in your blood
Than Venus or those pampered animals
That rage in savage sensuality. (4.1.57–61)
Even Claudio, however, refrains from actually employing the words that
appeared so often in slander cases (words such as “incontinent,”
“unchaste,” or “whore”). Instead, he “proves” Hero is dishonest. He

accuses her of talking with a man out of her window and demands,
“Now if you are a maid, answer this” (4.1.86). Her answer that she
“talked with no man at that hour,” although the answer of a maid,
proves to Claudio and Don Pedro, who have “seen” Hero at her window,
that Hero is, indeed, dishonest. If she is dishonest (a liar), she is also dis-
honest (unchaste), as Don Pedro’s remark, “Why then you are no
maiden,” confirms (4.1.88). Don Pedro here is ready to make the accu-
sation stick by announcing “the vile encounters” he has heard about
from the man at Hero’s window, but Don John stops his brother’s
mouth. Here again the absence of specific language in the slander leaves
the deeds to everyone’s imagination
Fie, fie, they are

Not to be named, my lord, not to be spoke of.
There is not chastity enough in language
Without offence to utter them. Thus, pretty lady,
I am sorry for thy much misgovernment. (4.1. 95–99)
Leonato’s response confirms this slander’s devastating effect on both

himself and his daughter. Believing these honorable men’s accusations,
Leonato asks – in words that recall Benedick’s words about Beatrice, “She
speaks poniards” – “Hath no man’s dagger here a point for me?”
(4.1.109). As if in answer to this, Hero swoons. Leonato’s wish for death
in the face of what he sees as his dishonor predisposes the audience to
imagine Hero’s fall as her death, a predilection also culturally con-
structed. As Cerasano notes, “Slander, popularly thought of as ‘the tran-
sient murderer,’ if not actually the cause of literal death, was thought to
lead to public alienation and metaphorical death.”25 Although a sensa-
tional effect that the comedy quickly undoes, Hero’s “death” symbolizes
the social consequences for women subjected to sexual slander.
The church scene underscores the truth about slander and the law
that Don Pedro’s effort to dishonor Claudio merely suggested – law can
do little to remedy the damage slander works. Without question, the
audience knows, even if no one other than Don John does, that Hero is
here horribly wronged. She has lost her good reputation. Her marriage is
prevented. She is the victim not just of words but of overactive imagi-
nations thriving on insinuation. Her maiden self-defense only “proves”
her dishonor. For an aristocratic woman, or indeed any woman, defend-
ing oneself against accusations of sexual misconduct implies unseemly
knowledge. Sexual slander, both insidious and venomous, destroys the
credibility essential for a woman to defend herself. A woman stands

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

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

the difference between Beatrice’s and Benedick’s “speaking poniards”
and Don John’s and Claudio’s damaging words? Part of the answer lies
in Dogberry and the way he uses – and abuses – language.
Dogberry’s dubious linguistic and legal competency links the play’s
interest in the language of slander with its interest in the law of slander.
Phoebe S. Spinrad reminds us that Dogberry has long been regarded
a “satiric commentary on the corruptions in Elizabethan law enforce-
ment.”26 The play’s commentators usually agree with John A. Allen that
Dogberry, although he effectively functions to discover Don John’s
slanderous scheme, shows the “splendid lunacy” of law enforcement,
especially in his notorious instructions to the watch and in his abuse of
language.27 According to F. H. Mares, Dogberry’s particular problem with
language “parodies” the other characters’ linguistic problems: “the
whole play, as has often been pointed out, depends on the mistaking of
words.”28 Such assessments, while useful, are somewhat too general to
fully appreciate the ways in which Dogberry’s language and his repre-
sentation of the law engage slander. The linguistic source for Dogberry’s
peculiar form of humor relates inversely to that for Beatrice’s and
Benedick’s humor – but requires a similar effort on the audience’s part.
Beatrice’s and Benedick’s wit depends upon the audience’s ability to
discern different meanings in homophones. With Dogberry, the
audience must substitute the correct word – a word that is often
antithetical but very close in sound – for Dogberry’s ill-chosen word.
Thus, the audience has to substitute “damnation” for Dogberry’s “ever-
lasting redemption,” “sensible” for “senseless,” “deserving” for “desert-
less,” “informed” for “reformed,” “intolerable” for “tolerable,”
“apprehended” for “comprehended,” “assembly” for “dissembly,” and
“odious” for “odorous.” The audience is able to provide the substitution
based on the context in which the abused word appears. Instead of
emphasizing the way in which hearers mistake words, the clever point
of Dogberry’s language is that language and meaning are not entirely
unstable. The competent speaker of a language is capable of discerning
likeness and difference – and indeed meaning – through context. This is
the antithesis of what happens with Don John’s slander, which occurs
without speaking the word “whore,” and succeeds because the culture
predisposes the “hearers” to believe him. Dogberry inadvertently
reassures the audience that the truth, indeed, can be discerned – and
sometimes through apparently contradictory language.
With this information, and from its privileged position, the audience
can clearly see not only that Claudio and Don Pedro are complicit in
Don John’s slander, but also that they are inept at discriminating
between truth and falsehood. The audience likewise recognizes that the
good-hearted “lies” – that Beatrice loves Benedick and that Benedick
loves Beatrice – which Don Pedro and Leonato and Hero and Ursula tell
each other in front of the eavesdropping Benedick and Beatrice, respec-
tively, are not lies at all. The friends have understood the truth that
Beatrice’s and Benedick’s wit labored to conceal. Furthermore, when
Beatrice and Benedick recognize themselves in the remarks they over-
hear about their proud and scornful natures, they relent and drop their
verbal armor. Benedick acclaims the “truth” of what he has overheard:
Happy are they that hear their detractions and can put them to
mending. They say the lady is fair. ’Tis truth, I can bear them witness.
And virtuous – ’tis so, I cannot reprove it. And wise, but for loving
me. By my troth, it is no addition to her wit – nor no great argument
of her folly, for I will be horribly in love with her. (2.3.17–23)
Beatrice responds similarly:
What fire is in mine ears? Can this be true?

Stand I condemned for pride and scorn so much?
Contempt, farewell; and maiden pride, adieu.
No glory lives behind the back of such.
And, Benedick, love on. I will requite thee,
...
For others say thou dost deserve, and I
Believe it better than reportingly. (3.1.107–15)
Beatrice’s and Benedick’s words reveal that in appropriate circumstances,

when culturally constructed prejudices and irrational self-interest (pride)
are set aside, “truth” can be recognized.
Much Ado About Nothing, then, concerns itself less with mistaking
words than with discerning their legitimate meaning. Don John’s slan-
ders succeed because Don Pedro and Claudio possess rigid notions of
honor – for both men and women – that interfere with a practical capac-
ity for discerning linguistic manipulation. Both Beatrice and Benedick
recognize the truth about themselves when they hear it because they
have, at some level, already experienced it. In the case of Dogberry, how-
ever, although the audience may feel reassured that truth can be
discerned, their confidence in legal process as a means to truth is sorely
tested.
In Much Ado About Nothing, justice’s minions fumble, stumble, bum-

ble, and fall at their every step: from charging the watch with their duty,
to apprehending and examining Conrad and Borachio, to conveying
Borachio’s crime to Leonato. The watch note Conrad and Borachio’s
conversation only because they think they recognize the “vile thief”
named “Deformed,” and one of the watch’s members still insists
“Deformed” is one of the culprits after Borachio confesses (3.3.92–172).
Leonato, too hasty to let law take its course, brushes aside Dogberry’s
well-intended effort to have Leonato examine the “auspicious person,”
an examination that might have spared Hero. Left to his own resources,
Dogberry’s interrogation begins badly. All he can gain from Conrad and
Borachio are their names, their claim to serve God, and their denial of
knavery, which leads Dogberry to tell them, “Well, stand aside” (4.2.31).
In Dogberry’s nearly misguided legal interrogation, Borachio’s defense
that he is no knave almost excuses him. Precisely when Dogberry’s ques-
tioning seems to meet a dead end – where the case is built or lost on the
credibility of the person being questioned – the sexton steps in to
remind Dogberry that his examination lacks procedural integrity. He
“must call forth the watch that are their accusers” (4.2.33). Even as
Dogberry’s own social anxiety threatens to derail the evidence against
Don John (“Why, this is flat perjury, to call a prince’s brother a villain”
[4.2.40]), the watchmen retell Borachio’s story, and the sexton
announces that the day’s events – Claudio’s accusation of Hero, her
death, and Don John’s flight – corroborate the watch’s account. Legal
procedure – the testimony of delegated and indifferent officers, corrob-
orating evidence, and its written record – appears here as capable of dis-
covering factual information when men, whose prejudices are rooted in
self-interest and cultural bias, cannot.29 While it has been the frequent
recourse of Much Ado About Nothing’s critics to regard the play’s legal
process as a satiric commentary on either the abuses of the local con-
stabulary or the legal justice system, Dogberry effectually shows that the
law is both successful and necessary – however much he “blunders into
truth,” as John Allen so aptly describes his efforts.30
That the law, however halting it might be, can discover Hero’s inno-
cence argues the law’s necessity in a society permeated by slander, and the
play’s conclusion proposes that church law is better equipped than secular
law to offer remedies to slandered women, especially slandered aristocratic
women. In the case that opened this essay, the secular court awarded dam-
ages to Anne Davies because Gardiner’s slander had compromised the
negotiations for her marriage to a man of substance. In Much Ado About
Nothing, Claudio’s and Hero’s worth derives from the aristocratic values of
honor and virtue – values that make slander in this social class all the more
devastating. Claudio neither boasts of his father’s wealth or his own stew-
ardship as Petruchio does in The Taming of the Shrew (1592), nor does he
link financial need to his marriage ambitions as Bassanio does in The
Merchant of Venice (1596–97). Indeed, Much Ado About Nothing is singular
among Shakespeare’s comedies in its lack of interest in its young lovers’
material prospects. Even if Hero’s cause could come within slander’s legal
definition, because Hero did not suffer measurable financial loss, resorting
to the secular law courts would not have been an option for a young
woman of her class. But what about the church courts?
As we have seen, prosecuting slander in the church courts presented
problems; despite this, Much Ado About Nothing seems to suggest that the
ecclesiastical remedy for slander was both effective and just. A defamer
convicted in a church court had to ask forgiveness of the victim and per-
form some form of public penance. Ingram suggests that the remedy in
small communities was probably more attractive to litigants than receiv-
ing material damages.31 While secular litigation might exact a victim’s
just due, it could do little to undo slander’s damage to a victim’s reputa-
tion and position in the community. Public penance and apology,
however, could restore a victim’s good name.
The penance Leonato imposes on Claudio conforms to the ecclesiastical
remedy’s requirements. Leonato requires Claudio to “Possess the people in
Messina here / How innocent she died” (5.1.273–74) by hanging an epi-
taph on her tomb and singing to Hero’s remains. The epitaph declares her
innocence, and the song asks pardon for Claudio and his party:
Pardon, goddess of the night,

Those that slew thy virgin knight,
For the which with songs of woe
Round about her tomb they go. (5.3.12–15)
Although this occurs in the dark of night, consistent with an ecclesiasti-

cal court’s sentence, the penance is public (the epitaph will remain on
the tomb). It also is distinctively liturgical. Claudio and Don Pedro
arrive at the tomb with “three or four others” dressed in black and car-
rying candles. Claudio’s reading the epitaph from a scroll marks the
occasion’s solemnity, and the words of the song, a “solemn hymn,”
envision its being sung as part of a ritual procession around the tomb.
Even before the penitential ritual at Hero’s tomb, Much Ado About
Nothing suggests the value of the church and its courts for mediating
scandal’s devastating consequences. When Hero is exposed, right after
Don John, Don Pedro, and Claudio depart, it is the Friar who speaks
comforting words to Hero. Then, employing common sense, he testifies
to the evidence that argues Hero’s innocence:
I have marked
A thousand blushing apparitions
To start into her face, a thousand innocent shames
In angel whiteness beat away those blushes,
And in her eye there hath appeared a fire
To burn the errors that these princes hold
Against her maiden truth. (4.1.160–66)
The Friar’s words contrast starkly with those of Don Pedro’s witness
(which Leonato accepted because he believed “princes” would not lie)
that he had seen and heard Hero at her window. The Friar has seen
Hero’s face and offers his reading of it as an “experimental seal” that
“doth warrant / The tenor of my book” (4.1.167–69). Not only is his evi-
dence, he maintains, stronger than Don Pedro’s, but his honor and cred-
ibility derive from his godliness, which he stakes on Hero’s innocence:
“Trust not my age, / My reverence, calling, nor divinity, / If this sweet
lady lie not guiltless here” (4.1.169–72). When Leonato persists in accus-
ing Hero, the Friar, in what begins to resemble an ecclesiastical court
proceeding, gives Hero the chance finally to be heard. When Leonato
then turns to call for justice against those who have wronged her, the
Friar tells him to pause “And let my counsel sway you in this case”
(4.1.203) – “counsel” and “case” reinforcing the scene’s judicial character.
The scene, however, does not end in a judgment, but instead employs
two other strategies that appertained to slander in the ecclesiastical
court: mediation and delay.
The Friar’s proposal to let Hero “a while be secretly kept in” (4.1.205)
while the family goes through the rituals of mourning her “death” effec-
tively depends upon the mediating character of time. As time passes,
Claudio will reconsider:
When he shall hear she died upon his words,

Th’idea of her life shall sweetly creep
Into his study of imagination,
And every lovely organ of her life
Shall come appareled in more precious habit
...
Then shall he mourn,
If ever love had interest in his liver,

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

acknowledges his error and asks for penance:
Impose me to what penance your invention

Can lay upon my sin. Yet sinned I not
But in mistaking. (5.1.265–67)
These lines, which lead some critics to see Claudio as a dishonorable

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

how it is uttered and how it is understood, is vulnerable to human
frailty. Where humans err, the play suggests, the law and its procedures
for gathering, recording, and verifying information – however inept
they may be – must intervene.
While this play has certainly had its critics – F. H. Mares, for example,
likens it to the problem plays35 – when considered from the perspective
of slander, the essential unity of its diverse plots, the counterpoint
between the two sets of lovers, and the cleverness of its linguistic games
argue the play’s sophistication. But even from this perspective, to a mod-
ern reader the play may be seen to err on those occasions when it veers
from drama toward ideology. The London audiences, however, that
greeted Much Ado About Nothing’s arrival on the London stage late in
1598 or early in 1599 may have been more excited than bothered by its
exposé of scandal. Indeed, they might well have been impressed by the
play’s timeliness – and not just because they were immersed generally in
a “culture of slander.”
In 1598 and early 1599 a rash of printed satires and epigrams flooded
the London booksellers’ stalls. Pretending (or perhaps intending) a gen-
eral attack on the follies of the age, their tendency to assign fictitious
individual names to characters who personified the age’s vices invited
what their printed preliminaries called “busie conjectures”36 which, like
Claudio’s and Don Pedro’s envisioning of Hero’s crimes, were trumped
by allusive language. As I have argued elsewhere, Robert Devereux,
the Earl of Essex, appears to have figured prominently in these satiric
publications.37
In late 1598 and early 1599 Essex was the focus of court rumor and
scandal. In 1599’s most important political event, Essex led an expedi-
tion to Ireland to crush Tyrone’s rebellion. Queen Elizabeth had recog-
nized the necessity of sending forces in August 1598 and favored Essex
for Earl Marshall to lead the assault, but court faction delayed his
appointment until March 1599. In a letter to Lord Willoughby in early
January, Essex announced that he was “tied to his own reputation” to go
to Ireland, although he knew by doing so he would become vulnerable
to his enemies.38 A few weeks later Willoughby replied, “Though Ireland
calls you, Satyrs can hear that England cries out for you.”39 In a speech
to the Star Chamber in 1600 Lord Keeper Sir Thomas Egerton admon-
ished the justices to take particular care “against libelers who by tongue
and pen” issue slander, and then digressed to Essex, beginning with
these words, “And such of late had slandered her Majesty’s officers by
libels.”40 In 1600, the year before committing his ill-conceived rebellion,
Essex had lost the queen’s favor and was confined under house arrest,
exiled from the queen and court he loved. Faction at court spread to
rumor in the city. I do not wish to go so far as to suggest Shakespeare was
part of Essex’s circle and wrote this play out of sympathy for Essex’s
plight among the “satyrs.”41 It is, however, relevant that many
Londoners saw Essex as a popular hero who aligned himself with older
notions of chivalric honor42 and that he was a man whose honor was
being impugned by slander and libel. Much Ado About Nothing’s first
audiences surely felt a shiver of recognition as the play engaged such
timely matters as truth, lies, and law in a world permeated by slander.
Notes
1. The ecclesiastical courts used the word “defamation” to embrace cases of both
slander and libel. In the secular courts the words were used interchangeably,
and it was not until the late seventeenth century that the two words were con-
sistently given the modern legal meanings that discriminate between a
spoken assault on someone’s character (slander) and one that is written (libel).
2. Edward Coke, Reports, Part 4 (London, 1658), p. 231.
3. Ronald Marchant, The Church under the Law (Cambridge: Cambridge University
Press, 1969), p. 10. Coke himself successfully defended his client, Edmund
Denny, in a 1578 slander case that established the legal principle of intention-
ality. Legal historians point to Coke’s instrumentality in defining the criminal-
ity of slandering or libeling a private person in the 1606 De Libellis famosis Star
Chamber case. See for example W. S. Holdsworth, A History of English Law,
vol. 7 (Boston, MA: Little, Brown, and Company, 1926), pp. 336–40.
4. Martin Ingram, Church Courts, Sex and Marriage in England, 1570–1640
(Cambridge: Cambridge University Press, 1987), pp. 292–96.
5. Marchant, Church under the Law, p. 61.
6. Laura Gowing, “Language, Power and the Law: Women’s Slander Litigation in
Early Modern London,” in Women, Crime and the Courts in Early Modern England,
ed. Jennifer Kermode and Garthine Walker (Chapel Hill, NC, and London:
University of North Carolina Press, 1994), pp. 26–47. Evidence from Ingram,
Marchant, and Gowing undermines the argument of S. P. Cerasano’s essay on
slander law and Much Ado About Nothing, “Half a Dozen Dangerous Words,” in
Much Ado About Nothing and The Taming of the Shrew, ed. Marion Wynne-Davies
(Houndmills: Palgrave, 2001), pp. 31–50. According to Cerasano, by Shakespeare’s
time the ecclesiastical courts were becoming extinct and “slander suits lost their
natural legal venue” and were heard instead in at least three different secular
courts that were hostile to the claims of women (p. 33). Not only were the
courts hostile to women, but the law could do nothing to restore a damaged
reputation. Cerasano argues that Hero is victimized by men who “use language
to set up the law for their own advantage [and] . . . to diminish women to
nothingness” (p. 44). While Hero is certainly victimized, as Cerasano argues,
the law of slander that plays out in Much Ado About Nothing acknowledges the
vitality of the ecclesiastical courts noted by Ingram, Marchant, and Gowing.
7. Anthony Fletcher, Gender, Sex, and Subordination in England 1500–1800

(New Haven, CT: Yale University Press, 1995), p. 101.
8. Fletcher, Gender, Sex, and Subordination, p. 126.
9. Gowing, “Language, Power, and the Law,” p. 40.
10. Ingram, Church Courts, p. 313.
13. R. H. Helmholz, ed., Select Cases on Defamation to 1600, vol. 10 (London:
Selden Society, 1985), p. xxx.
14. Helmholz, Select Cases on Defamation, p. xxxv.
15. Marchant, Church under the Law, p. 65.
18. Lindsay Kaplan, The Culture of Slander in Early Modern England (Cambridge:
Cambridge University Press, 1987). Kaplan establishes the relationship
between this cultural phenomenon and literature by looking at Spenser’s
Faerie Queene, Ben Jonson’s Poetaster, and Shakespeare’s Measure for Measure.
It is probably not surprising that she does not consider Much Ado About
Nothing, since she is more interested in how slander participates in a political
discourse of state repression and artistic resistance.
19. William Shakespeare, Much Ado About Nothing, 1.3.46, 48, in The New
Cambridge “Much Ado About Nothing,” ed. F. H. Mares (Cambridge: Cambridge
University Press, 1988).
20. Ingram, Church Courts, pp. 302–03.
21. Fletcher, Gender, Sex, and Subordination, p. 104.
22. For an excellent discussion of the nature of male camaraderie in the play, see
Harry Berger Jr. “Against the Sink-a-Pace: Sexual and Family Politics in ‘Much
Ado About Nothing,’ “ in Much Ado About Nothing and The Taming of the
Shrew, ed. Wynne-Davies, pp. 13–30.
24. Cerasano, “Half a Dozen Dangerous Words,” p. 35.
25. Cerasano, “Half a Dozen Dangerous Words,” p. 40.
26. Phoebe S. Spinrad, “Dogberry Hero: Shakespeare’s Comic Constables in their
Communal Context,” Studies in Philology 89 (1992), 161.
27. John A. Allen, “Dogberry,” Shakespeare Quarterly 24 (1973), 46.
28. Mares, ed., Much Ado, p. 37.
29. As Maurice Hunt points out, it is the law’s “ ‘pen and inkhorn’ (3.5.54) that
fix the verbal testimony of Borachio and provide the record by which
Leonato, Don Pedro, and Claudio conclusively learn that an innocent
woman has been wrongly slandered.” Maurice Hunt, “The Reclamation of
Language in ‘Much Ado About Nothing,’ ” Studies in Philology 97 (2000), 183.
30. Allen, “Dogberry,” p. 173.
34. Cassio speaking in Othello laments, “Reputation, reputation, reputation – O,
I ha’ lost my reputation, I ha’ lost the immortal part of myself and what
remains is bestial!” (2.3.256–58).
35. Mares, ed., Much Ado, p. 35.
36. Edward Guilpin, Skialetheia or A Shadowe of Truth (London, 1598), C2. Among
the satires published in 1598 in London were John Marston’s Pygmalion
(1598), Thomas Middleton’s Microsynicon (1598), John Davies’ Epigrames
(n.d.), and Joseph Hall’s Virgidemiarum (1597, 1598). All of these were
banned in 1599 by order of the Bishop of London and the Archbishop of
Canterbury. For a discussion of the 1599 so-called Bishops’ Ban, see chapter 9
of my Press Censorship in Elizabethan England (Cambridge: Cambridge
University Press, 1997).
37. Clegg, Press Censorship in Elizabethan England, pp. 210–16.
38. Royal Commission on Historical Manuscripts, Calendar of the manuscripts of
the most honourable, the Marquess of Salisbury preserved at Hatfield House,
Hertfordshire, vol. 9 (London: Her Majesty’s Stationery Office, 1883–1976),
p. 10.
39. Salisbury Manuscripts, vol. 9, p. 35.
40. Salisbury Manuscripts, vol. 10, pp. 182–84.
41. Valerie Mears, “Regnum Cicilianum?” in John Guy, ed., The Reign of Elizabeth I
(Cambridge: Cambridge University Press, 1995), pp. 65–86.
42. Mears, “Regnum Cicilianum?” pp. 65–86.
11
The “Amending Hand”:
Hales v. Petit, Eyston v. Studd,
and Equitable Action in Hamlet
Carolyn Sale
The Clown’s reference in Hamlet (1599) to the “three branches” of

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

that, according to Plowden, corrects all “defects” in the law, equity.
Dame Hales’s case
As both T.E. in The Lawes Resolutions and the running titles in Plowden’s
Commentaries remind us, Hales v. Petit was “Dame Hales’s Case.” The case
occurred in 1559, when Lady Margaret Hales, widow of Sir James Hales,
a justice of the Common Bench who drowned in 1554 in the River Stour
near Canterbury, brought a writ of detinue (or a writ of recovery of prop-
erty) against Cyriack Petit, the man to whom the Crown had leased
property forfeited to it with the characterization of Hales’s death, by a
coroner’s jury, as suicide. The case was heard in the Court of Common
Pleas, under Chief Justice Sir James Dyer and Justices Anthony Brown
and Richard Weston. Serjeants-at-law Southcote and Puttrell argued the
case for the plaintiff, and Serjeants-at-law Walsh, Bendloe, Carus, and
Chomley argued the case for the defendant. Margaret Hales claimed that
she held the estate under a joint tenancy with her late husband. The
lands in question had originally been leased on March 8, 1535, for a
term of twenty-one years to James Hales and his father, John. When his
father died in 1540, James Hales renewed the lease with his wife’s name
on it, for a term of twelve years. Margaret’s holding in the lease did not,
however, begin until the cessation of the first lease in 1556. At the time
of her husband’s death in 1554, Margaret was not on title. The legal
action in Hales v. Petit therefore concluded with Justice Brown contend-
ing that all argumentation in the case was, in the final analysis, moot, as
the lease over which they had been arguing was not the lease in effect at
the time of James Hales’s death. The arguments in the case nevertheless
proceeded on the assumption that Margaret Hales did have a claim to
the property leased.
Plowden’s report allows us to trace how this assumption informs the
proceedings and establish the extent to which the case is about the rela-
tionship of women to property. Committed to pursuing a radical new
form of report in which he refuses to “[suppress] any sentence which [he]
remembered and thought to be very material,” Plowden produces a
report that shows the judicial narrative of Hales’s death preempting
Margaret’s coming-into-life under the law, as a woman emerging from
coverture to bring a property suit in her own name.4 In its fullness,
Plowden’s report allows us to trace how the two aspects of the case – the
incrimination of Hales and the defeat of his widow’s action – work
together in ways that make it impossible to disentangle cause from effect.
The “Amending Hand” 191
This is how it works. Southcote and Puttrell argue that at the instant
of Hales’s death, his wife, who held the lease with him, took the entire
lease by right of survivorship. The radical aspect of their argument is
that she does not thereby assume new property; “she claims no more
than that which she had in the life of her husband” as she held the lease,
as her husband did, “by entireties” or with “no Moities between them.”5
Their claim attributes a great deal of power to a joint tenancy between
“baron and feme” by asserting for Margaret rights unaffected by her
husband’s actions. Walsh, Bendloe, Carus, and Chomley’s counterargu-
ments, which do not ever explicitly deal with the claim that Margaret
held the lease “by entireties,” focus on constructing a narrative of
Hales’s death that situates the lease in the sovereign’s hands before it can
vest in Margaret by right of survivorship. The felony must be understood
to have occurred before Hales actually died, for, as Bendloe notes, “[a]
dead man can have no property.”6 Serjeant Walsh therefore proposes the
case’s notorious division of action into three parts – the “imagination”
of the act, the “resolution” to commit it, and its “execution” in the
doing. The felony could therefore be understood to begin with the
“imagination” of the act, and to have been conclusively resolved upon
at the moment that Hales stepped into the water, permitting the claim
that Hales forfeited his goods to the Crown with the initiation of the
doing, rather than at its completion (that is, once he was dead, and
decisively the victim of felo de se).7
Once Walsh has figuratively brought Hales back to life so that the
Court might execute judgment upon him while he is still alive, Dyer sat-
urates the “beginning” of the execution of the act, the moment that
Hales steps into the water, with intention, imputing to him not only the
intention to commit a felony (“the killing of himself was prepensed and
resolved in his Mind before the Act was done”), but also the intention to
“escape the Sentence of the Law.”8 The real concern here is with the pos-
sibility of judicial impotence, as Dyer, Walsh, and Bendloe plainly state
in several ways: they would have no way of executing any judgment
against him, no way of performing their authority in relation to his act,
no way of pronouncing sentence, without the fiction that Walsh pro-
poses. Their narrative of his death, which locates in his act of stepping
into the water both the felonious intention to kill himself and the “Time
of [his] Flight” from the law, thus upholds the seizure of the estate that
took place at the time of the coroner’s inquest in 1554 while (re)securing
their authority, which they imagine to be threatened by Hales’s
“cunning.”9 The popular sense that the case epitomized what Hamlet
calls the “insolence of office” (3.1.73) would have been exacerbated by
192 Carolyn Sale
the belief that Hales had slipped from a bridge over the River Stour and
fallen into the water in which he drowned.10
Dyer, Walsh, and Bendloe’s narrative ensures that Margaret Hales’s
rights as wife are “ended and extinct”11 at the moment that Hales steps
into the water. The fiction of coverture – that man and wife are one
person – has her entering the water with him too, and while she may
survive, and, as widow, clamber onto the shore again, the sovereign has
in the meantime come and seized the estate. Margaret Hales may emerge
from the water a feme sole, with none of the felony attaching to her, but
the hyperincrimination of her husband’s act deprives her of all agency
at precisely the moment when she ought to have been able to exert her
power in relation to the lease in her own right, the moment of his death.
The arguments in the case in theory make it impossible for anyone to
contend this, for the justices secure the forfeiture not from a widow, a
freshly empowered feme sole, but rather from the wife of a felon. The
suppressed rationale that they are actively disabling a widow while
claiming to thwart the power of a dead man nevertheless rises to the sur-
face in their subsequent claim that the finding in the case is similar to
property escheating to the king where “the Wife is found an Ideot.”12
Margaret Hales is as effectively incapacitated as if she were indeed mad.
Dyer’s report, written after the fact, both intensifies and naturalizes
the most controversial aspects of the case. Amongst other things, Dyer’s
report occludes what another anonymous reporter saw fit to state
plainly in his much briefer redaction of the case: “if a man of unsound
mind kills himself, he shall not forfeit his goods or lands.”13 Neither in
his remarks in the case nor anywhere in his report does Dyer acknowl-
edge the possibility that Hales may not have been of sound mind when
he drowned. In the report, Dyer attempts to justify his attribution of
felonious intention to Hales by citing the fourteenth-century lawyer
Henry Bracton on the importance of intention: “[I]n crimes the inten-
tion is regarded, not the result.”14 But Bracton uses this principle to
entirely different ends, to exonerate those who commit accidental homi-
cide. “A crime is not committed unless the intention to injure exists,”
Bracton writes.15 As a result, if a ball strikes the hand of a barber causing
him to “cut another’s throat,” the barber is not culpable of murder, as an
object over which he exerted no control, and in relation to which he
intended nothing, caused the crucial action. Dyer makes Bracton’s refer-
ence do other work: “The exterior act of the body shall be measured and
known by the will, intent and purpose of the mind,” he writes, “which
is the inner part of man, because the intention and purpose are what dis-
tinguish wrongdoing, and in wrongdoing the ‘intention is regarded and
not the outcome’ (according to Bracton).”16 The context in which

Bracton articulates the principle is not fairly transposed to the context
in which Dyer reapplies it, Bracton having used the notion not only in
relation to another kind of crime, but also to exculpate the accused.
Bracton’s commentary makes intention significant in its absence, which
can be fairly posited; Dyer’s makes it significant in its fictional presence,
impossible to locate.
Dyer’s report also deepens the case’s potentially deleterious effects for
women. Dyer makes two broad claims. The first, that a “wife cannot be
matched in jointure with her husband,” is on the face of it nonsense.17
Clearly a wife could be matched in jointure with her husband, or Hales,
once sitting alongside Dyer on the Common Bench, would not have
renewed the lease with his wife’s name on it instead of his father’s.
Presumably what Dyer means is that under coverture a “jointure” is
meaningless, since the wife cannot ever be said to hold property in her
own name or right. The wife’s name on the lease speaks to future inter-
ests, not any present proprietary right or reality during the lifetime of
her husband. Dyer here takes a retrogressive position on the character
of a jointure, affirming the common law’s “rejection of any theory of
community” of ownership between husband and wife, to deny the
possibility that Margaret Hales had any legally meaningful relationship
with the lease while her husband was alive.18
For his second claim, Dyer reaches back over a century, citing a suit
from the very early years of Henry VI’s reign to assert “a married woman
has no property in a chattel.”19 This claim, consistent with the first, is
broader and more controversial: as William Holdsworth notes, up until
the thirteenth century, it is entirely unclear whether a woman could or
could not hold property in a chattel,20 and though the common law
from the thirteenth century onward generally tended to diminish a mar-
ried woman’s power in relation to property, a lease occupies strange
ground: it is not, as Dyer claims, “among the least things in law, inas-
much as it is only a chattel,” for it is not a “mere chattel but a ‘chattel
real.’ ”21 As a “chattel real,” a joint tenancy between “baron and feme”
posed a challenge to the sweeping disablement of Dyer’s claim.
To make matters worse, Dyer’s use of the case from 7 Henry VI is reac-
tionary. Southcote and Puttrell make another case from the same regnal
year central to their argument. That case witnesses a female plaintiff claim-
ing a term of years held before her marriage, not by survivorship, but as the
original lessor, and Southcote and Puttrell cite it to establish a married
woman’s holding in a joint tenancy as “paramount” to any “charge” that
her husband may execute against it while they are married.22 (Walsh,
194 Carolyn Sale
Bendloe, Carus, and Chomley contend that the forfeiture for Hales’s
felony is analogous to a joint lease being voluntarily “charged” by a hus-
band during the wife’s coverture.) The arguments in the case so resound-
ingly support Southcote’s and Puttrell’s use of it – and a wife’s
meaningful proprietary holding in a joint tenancy – that Dyer cites
instead Dacre’s Case, which turns on the issue of whether a wife may be
“attached” (or have goods held in bail until she appears in court to
answer a suit) by the goods of her husband. Contending that a feme
covert may have no possession in a chattel and that a husband and wife
cannot hold goods in common, Chief Justice Babington orders that the
writ, whose wording assumes both, shall abate for form.23 Babington’s
assertions bolster Dyer’s general claims, but Dyer proceeds to a conclu-
sion that cannot fairly be reached from either of the cases: where the
husband “has declared his will” in regard to a lease, and “charged” it in
one way or another, “his wife shall not have it by survivorship.”24 In his
retrospective justification of the seizure of property from Margaret
Hales, Dyer wrests a conclusion from Dacre’s Case that the arguments in
the other case from 7 Henry VI oppose, to quash a meaningful relation-
ship between a woman and property during her coverture, and make
meaningful instead any exercise of the husband’s “will.”
Plowden’s report confutes the totalizing authority of Dyer’s state-
ments. Barred from advancement within the courts for his Catholicism
and therefore not vested in the institution or its sentences, Plowden pre-
serves Southcote’s and Puttrell’s claim that Margaret Hales held the lease
“by entireties” – or held the whole, in common with her husband. It is
precisely because Plowden preserves this claim that we may follow the
seventeenth-century writer T.E. in situating Hales v. Petit in the context
of Wimbish v. Tailbois and Eyston v. Studd, both of which involve read-
ings of 11 Henry VII c.20. Wimbish v. Tailbois shows the justices, who
include Sir James Hales, interpreting the statute from misogynistic
premises that the justices in Eyston v. Studd, who, ironically, are Dyer,
Weston, and Brown, resist. The larger picture that the three cases, read
in conjunction, provide helps us trace the ways in which Hamlet pro-
vides symbolic compensation for the assumptions about women and
property that Dyer promulgates in his report on Hales v. Petit.
T.E. presents 11 Henry VII c.20 as a statute designed to undercut the
“cunning” of women who subverted the law’s attempts to restrain their
actions as widows by “dispos[ing]” of the property that they inherited from
their husbands as they chose by “alien[ing] lands . . . to whom they liked
in fee.”25 The statute is applied to Wimbish v. Tailbois (1550) when
Elizabeth Wimbish alleges “covin” or collusion between her grandmother
and a male relative, William Tailbois, to recover property left in use to

Elizabeth Tailbois for her life, and then to Elizabeth Wimbish and her
husband for their lives. In instances of “collusive” or “feint” recovery on
the part of a widow, the statute permits the wronged heir to enter the
property as if the widow “had ben ded.”26 One of the justices of the
Common Pleas in 1550, Hales argues that the plaintiff should recover in
a lengthy speech about judicial interpretation that anticipates Plowden’s
later commentary on equity. At the same time, Hales refers to women in
terms awfully similar to a certain dramatic character’s statements about
women: “the Makers of the Statute considered the Frailty and
Inconstancy of Woman, who might easily by flattering Words be deluded
and enticed to Covin, and therefore they ordained against them a Penalty,
as a Bridle to their Inconstancy.”27 Taken together, Hales’s statements in
the case generate the kind of ambivalence that readers of Hamlet may feel
about its leading character for the greater part of the play, as he aims to
correct injustice in the form of an unprosecuted murder yet utters more
than one comment and does more than one deed that suggests an
impoverished view of women’s general character and abilities.
The issue of character is entirely relevant, for Plowden’s conception
of equity depends upon the premise that there is an organizing
consciousness – one “upright” and “reasonable” – that can mediate
between the legal text as received and the legal judgment that needs to
be rendered in a given judicial situation, reconciling written law with the
particulars of each case according to the perceived intent of the lawmak-
ers. Hales may speak of equity, but his rationale in the case is informed
by his assumptions about women, which he attributes to the statute-
makers, construing their intentions within his own conceptions and
thereby generating the kind of “defect” which Plowden argues equity is
supposed to correct. To produce equitable jurisprudence, Plowden sug-
gests that jurists and lawyers “put Questions” to an imaginary interlocu-
tor, the statute-maker, and supply to themselves “the same Answer which
[they] imagine he, being an upright and reasonable Man, would have
given.”28 But only where they question their own assumptions about the
relationship of women to property, and their attitudes to women more
generally, will they be able to resist any tendency or predisposition to do
what Hales does in Wimbish v. Tailbois, permit assumptions about women’s
“frailty” to sanction a reading and application of statutory law that sup-
ports the “bridling” of women and a circumscription of their property
actions. We see a step toward this in the judgment in Eyston v. Studd.
Thomas Eyston brings a writ of “ejectione firmae” against Richard
Studd, claiming that he is trespassing on lands that Eyston has leased
196 Carolyn Sale
from John Latton, the son of William and Margaret Latton. Richard
Studd claims to have leased the land from Margaret Latton, who married
Richard Alexander after her first husband’s death. Counsel for the plaintiff
cites the holding in Wimbish v. Tailbois verbatim to argue that the matter
is to be construed within 11 Henry VII c.20, and Margaret Alexander
held guilty of aliening land that should have descended to her son John.
Counsel for the defendant, however, argues that the case does not fit
within the equity of the statute, which is designed to protect the rights
of “heirs of the husband,” for the property in question was always
Margaret’s. The case is a tricky one: Margaret inherited the property in
question from her own “ancestors,” but while still married to Latton was
compelled to grant it to Richard Alexander by way of fine. Some matter
of principle must be at stake, for Alexander, having secured the property,
immediately returns it to the Lattons by way of grant. The plaintiff’s
argument entails the claim that when the property made its circuit
between the Lattons and Alexander, it changed character: although it
was initially Margaret Latton’s by way of inheritance and was held jointly
with her husband in her right, it returned to the Lattons as a “Purchase”
of the husband’s, and therefore did not return to her properly at all:
perhaps it will be objected that it is the Purchase of the Wife as well

as the Husband, most certainly it is so, for it is the Purchase of
them both, but nevertheless it is the Purchase of the Husband, for that
which is the Purchase of the Husband and Wife may be called the
Purchase of the Husband.29
Although this claim initially appears to grant what Dyer denies, that “a
wife cannot be matched in jointure with her husband,” the elision of
the wife’s holding at the end works to much the same effect, voiding the
significance of a woman’s name on title to any property, including a
lease, acquired by husband and wife jointly during the marriage. But the
case here takes an extraordinary turn: the serjeants arguing the
defendant’s case claim that the statute was intended “to restrain [only]
women, who had jointures which preceded originally from their
Husbands or from the Ancestors of their Husbands.”30 That is not, they
contend, what occurred here since Margaret Alexander inherited the
property from her ancestors and at no time lost or surrendered her right
or title to the property in question:
the Wife here has made a Jointure to her Husband of the Land of the
Wife which was her inheritance . . . and so that the Foundation of
this Matter originally proceeded from the Wife, and it was to make a
Jointure to her Husband, and to advance him, and not to be
advanced by him. And then to bar her, after the Death of her
Husband, from disposing of her Inheritance, would be contrary to all
Reason, and it has no Affinity nor Connection with the Matter or
Intent of the Statute of 11 H.7.31
Southcote’s and Puttrell’s contention that Margaret Hales “claim[ed]

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

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

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

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

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

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

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

audience members who are disabled by the law because of their sex or
who are conscious of their capacity to be so disabled, no matter what
their sex.
The idea that Hamlet occupies, in the final scene, a position associ-
ated with women is deepened by Hamlet’s call to Laertes, at Ophelia’s
grave, that they both be “buried quick” with her (5.1.269). As it does
with Hamlet’s earlier joke that the legal fiction that “man and wife is
one person” makes Claudius his mother (4.3.50–51), the play chal-
lenges the primary fiction by which women are disabled at law, invert-
ing its premises, to imagine men as covered. Hamlet’s proposed burial
not only aligns him, symbolically, with those who are covered, inca-
pacitated, actionless, but sees the character who has accused himself of
being no more capable than a woman embracing the position of a
woman at her most incapable. That character is crucial. If character is, as
Stephen Orgel has suggested, lines on a page, this dramatic character
marks his character for Claudius, and us, with his own marks on a page,
in the calling card that Claudius receives at the end of act 4: “High and
mighty, you shall know I am set naked on your kingdom. . . . ’Tis
Hamlet’s character. ‘Naked!’ ” (4.7.42–49).50 Hamlet not only acts, in
the final instance, from a position associated with women; he acts as a
character marked, in his nakedness, by divestiture. His subsequent atti-
tude is consistently one of surrender: he agrees to take part in the fenc-
ing match despite his misgivings, yielding to it with “let be”
(5.1.201–02). With this “let be,” he yields to that which he has aggres-
sively resisted throughout, the sense that there are forces outside him
that he cannot control, and that could subject him to “bad dreams,”
declaring himself ready for whatever may come. His remarks may be
cryptic, he may not himself know what he means, but the person who
finds himself at a juncture where he can finally take action against the
man who killed his father is at that juncture because he has so thor-
oughly divested himself of self-interest that he is prepared to commit
the self-offense of making himself available to be killed in action that is
a thinly disguised trial by battle. This divestiture distinguishes him
from any serjeant-at-law or justice who permits any investment,
whether it be ideological or an investment in the authority that accrues
to his “office,” to shape or determine how he reads or applies the law. It
is as necessary to correct functioning of the law as that “necessary
ingredient” of the law, the “moral virtue” of equity. And inasmuch as
Hamlet’s earlier remarks about the “frailty” of women link him with
Hales, his alignment with Ophelia compensates not only for his own
204 Carolyn Sale
earlier misogyny in the play, but also for the various forms of misogyny
that have informed English jurisprudence.
In Hamlet’s alignment with women and his symbolic divestiture, we
might also see an instance of the divestiture of the subject currently
being imagined in left legal critique.51 Hamlet’s desire to be “buried
quick” with Ophelia aligns him with a character whose final actions on
stage witness her, as the girl who has nothing to give, paradoxically con-
stituting herself as the gesture of giving, by distributing flowers to others.
Her actions confound the law’s assumption that identity depends upon
the degree to which a subject is propertied or has the capacity to become
so: that is, the degree to which he or she has the power to seize or be
“seized” of property real and personal. Hamlet furnishes us, in the figure
of Ophelia, with a woman utterly depropertied (first by her father, then
by her madness), not so that it can subsequently vest her or any other
female character in property (the appeal of being an “imperial jointress”
[1.2.9] makes Gertrude an agent in the tragedy), but so that Hamlet,
defining himself as “naked” and choosing a figurative divestiture that
links him with Ophelia, may embody a disinterestedness crucial to equi-
table workings of the law. Informing equity, this disinterestedness would
do more than “soften the Severity of the Text” of the law.52 It challenges
all forms of propertying, all vestitures, and thus any ideology that would
make it possible for one kind of person to be any more “spacious in the
possession of dirt” (5.2.89) than another.
Ophelia’s act of giving and Hamlet’s figurative divestiture are kin, and
as acts that speak of a surrender of identity in the law’s terms suggest the
possibility of a new kind of life figured for us in Laertes’ prayer for
Ophelia: “from her fair and unpolluted flesh / May violets spring!”
(5.1.229–30). As James Calderwood has suggested, this is a play that
attributes a great deal of vitality to death;53 here, in the idea of violets
springing from Ophelia’s dead flesh, it may give life to that which the
common law renders dead. As Peter Goodrich has argued so persuasively,
the common law’s suppression of an alternative genealogy of law in its
repression of the “feminine” finds expression in a “space within the
institution” associated with “images, flowers, ornaments, aesthetic judg-
ments, tastes, emotions, lifestyles and fantasies, a space consonant with
all of those disciplines and discourses that doctrine and law conceived to
be incidental, accessory, merely rhetorical, contingent or other to the
tradition (ius non scriptum) or established practice of law.”54 The space of
the theater, so often construed, in postmodern discourse, as “dead” in
relation to other domains, becomes a space in which the “dead flesh” of
a girl is imagined as the material for a potential efflorescence – which we
might imagine as a flowering of the equity that would be possible if the

common law expunged from itself the prevailing tendency, the
predisposition, to disable women.
Plowden’s nut may have traveled into Shakespeare’s text, but not to
“lodge blindly” there.55 In a space outside the law, in a character
“bounded in a nutshell,” we find what the law so urgently requires: the
divestiture of self-interest crucial to the realization of equity in legal
interpretation or jurisprudence. Hamlet’s figurative divestiture makes
possible right action under the law or the right action of the law, action
taken according to and motivated by equity, and achieves this not only
because it is disinterested, but because Hamlet volunteers to cover
himself – volunteers to occupy the position of woman under the law. As
revenge tragedy, the play produces various forms of symbolic compen-
sation for sixteenth-century jurisprudence, but, more important, shapes
an idea of the character that would make possible a flowering of equity
more striking than that realized in the “sentence” of Eyston v. Studd.
Emptied of interest and aligned with the “actionlesse,” Hamlet’s character
is that of the “amending hand,” the discursive force that writers of both
legal and dramatic narrative may shape.
Notes
1. William Shakespeare, The Tragical History of Hamlet Prince of Denmark, 5.1.12,
ed. A. R. Braunmuller (New York: Penguin, 2001). With one exception noted
below all references to Hamlet are to this edition.
2. Luke Wilson’s “Hamlet, Hales v. Petit and the Hysteresis of Action,” English
Literary History 60:1 (Spring 1993), 17–55, is the one notable exception. I take
up Wilson’s argument later in this essay.
3. Dyer’s report is available in print in The Lost Notebooks of Sir James Dyer,
ed. J. H. Baker, vol. 1 (London: Selden Society, 1993).
4. Edmund Plowden, Commentaries, or Reports of Edmund Plowden (London,
1761), p. iv. On the radical nature of Plowden’s reports, see Geoffrey
Parmiter, Edmund Plowden: An Elizabethan Recusant Lawyer (London: Catholic
Record Society, 1987); and Lorna Hutson, “Not the King’s Two Bodies:
Reading the ‘Body Politic’ in Shakespeare’s Henry IV, Parts 1 and 2,” in Rhetoric
and Law in Early Modern Europe, ed. Lorna Hutson and Victoria Kahn (New
Haven, CT: Yale University Press, 2001), pp. 166–98.
5. Plowden, Hales v Petit, p. 259.
6. Plowden, Hales v. Petit, p. 260.
7. On the retrospective attribution of felonious intention to Hales, see Wilson,
“Hysteresis,” 31.
8. Plowden, Hales v. Petit, pp. 216–62.
10. See Parmiter, Edmund Plowden, p. 118 n. 37.
206 Carolyn Sale

13. Baker, Lost Notebooks, p. 76.
15. Henry Bracton, On the Laws and Customs of England, ed. George Woodbine,
trans. Samuel E. Thorne, vol. 2 (Cambridge, MA: Belknap Press with Selden
Society, 1977), p. 384.
18. William Holdsworth, A History of English Law, vol. 3 (1908; rpt. London:
Methuen & Co., 1977), p. 524.
20. Holdsworth, History, p. 523.
21. Baker, Lost Notebooks, p. 75; Baker, Oxford History, p. 634, respectively.
23. De Termino Michaelis (London: Richard Tottel, 1570), f. xr. The text in Law
French reads “la feme ne poet auer chatell durant le couerture” and “le baron
et sa feme ne puissant prendre les profits en comen.”
25. T.E., The Lawes Resolutions of Womens Rights: or, the Lawes Provision for Woemen
(London, 1632), p. 315.
26. Statutes of the Realm, vol. 2 (London: Dawsons of Pall Mall, 1810), p. 583.
27. Plowden, Wimbish v. Tailbois, p. 50.
28. Plowden, Eyston v. Studd, pp. 465–67.
29. Plowden, Eyston v. Studd, p. 464.
33. Plowden, Wimbish v. Tailbois, p. 58.
34. Plowden, Eyston v. Studd, pp. 465–66.
35. The line “O God, I could be bounded in a nutshell, and count myself a king
of infinite space – were it not that I have bad dreams” occurs only in the
Folio. See Hamlet 2.2.254, in The Riverside Shakespeare, ed. G. Blakemore
Evans (Boston, MA: Houghton Mifflin, 1974).
37. On objects as nonhuman actors in Renaissance discourse, see Julian Yates,
Error, Misuse, Failure: Object Lessons from the English Renaissance (Minneapolis,
MN: University of Minnesota Press, 2003).
38. Wilson, “Hysteresis,” 43.
41. Wilson writes, for example, that “there is a limit to the coherence of a text
constituted by such oddly juxtaposed discursive elements” (44).
43. Bracton, Laws and Customs, p. 384.
45. The phrase is from Plowden’s favorite aphorism, “Blessed be the amending
hand.” See Parmiter, Plowden, p. 164.
46. The allusion comes with the talk of the arrow: “For if a Man of Malice
prepence shoots an Arrow at another with an Intent to kill him, and a Person
to whom he bore no Malice is killed by it, this shall be Murder in him”

(Plowden, Commentaries, p. 474). Wilson (“Hysteresis,” 31–32) notes the
importance of Saunders’ Case for legal constructions of malice prepense.
47. This phrase for civil death of the married woman and other persons (such as
monks) is from Hardships of the English Laws in Relation to Wives (London:
J. Roberts, 1735), p. 51.
48. T.E., Lawes Resolutions, p. 129.
49. T.E., Lawes Resolutions, p. 128.
50. Stephen Orgel, “What is a character?” in The Authentic Shakespeare and Other
Problems of the Early Modern Stage (New York: Routledge, 2002), p. 8. For
another discussion of this and Hamlet’s other letters, see Jonathan Goldberg,
“Hamlet’s Hand,” in Shakespeare’s Hand (Minneapolis, MN: University of
Minnesota Press, 2003), pp. 105–31.
51. See Wendy Brown and Janet Halley, eds, Left Legalism/Left Critique (Durham,
NC: Duke University Press, 2002).
53. James Calderwood, Shakespeare and the Denial of Death (Amherst, MA:
University of Massachusetts Press, 1987), p. 101.
54. Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley, CA:
University of California Press, 1995), p. 13.
55. The phrase is Wilson’s, “Hysteresis,” 38. He uses it to suggest the inertness of
the play in relation to the elements of legal discourse that find place within it.
12
Macbeth: Absolutism,
the Ancient Constitution,
and the Aporia of Politics
Peter C. Herman
Political interpretations of Macbeth (1606) have, it would seem, reversed

themselves over the past few years. Whereas most earlier critics (and
truth be told, some today) regard the play as complimenting James and
endorsing the theory of absolute kingship,1 more recent students of the
play, in particular Karin S. Coddon, David Scott Kastan, Rebecca Lemon,
David Norbrook, and Alan Sinfield see Macbeth as more contestatory, as
exposing the illogic of absolutism and demystifying absolutism’s provi-
dentialist rhetoric.2 These interpretations follow from the more general
contemporary understanding of the Scottish play as consistently and
frequently blurring ostensibly discrete categories.3 Yet Macbeth’s political
critics are oddly reluctant to see this work as deliberately provocative.
Kastan, for example, states that “Shakespeare has chosen historical mat-
ter determinedly resistant to the story he apparently wants to tell” (my
emphasis),4 implying that the play’s complexities are somehow inadver-
tent or contrary to Shakespeare’s intentions. I propose, however, that
such reticence is unnecessary. Shakespeare, I propose, intended to raise
in Macbeth precisely the complex and contradictory mélange of reso-
nances present in such other roughly contemporaneous plays as Measure
for Measure (1604), All’s Well That Ends Well (1603–04), Troilus and
Cressida (1602), and King Lear (1604–05), and the play’s uncertainties
reflect James I’s importation of absolutism into the English polity and
the resulting conflict over rival theories of sovereignty. To be sure,
Macbeth also draws on the tensions resulting from the Gunpowder Plot,5
and the major battles over supremacy are a few years in the future. But,
as I will show, the issues addressed in, say, the 1610 Petition of Right
against Impositions (can the Crown impose a tax without Parliament’s
208
Absolutism and the Ancient Constitution 209
assent?) are very much present from the start of James’s reign, and
Shakespeare uses Macbeth to reflect upon the steadily escalating conflict
between Jacobean absolutism, predicated on a monarchy that is above
the law of the land, and the traditions of English liberty signified by the
term the Ancient Constitution, in which the monarch follows and is
subject to the law.6
The Trew Law of Free Monarchies: or The Reciprock and Mutual Duetie
Betwixt A Free King and His naturall Subjects (Edinburgh, 1598),7 reprinted
at least four times in 1603,8 must have stirred an ominous sense of fore-
boding in many of James’s new subjects. In the “Advertisement to the
Reader,” the king declares that his purpose is “to teach you [the subject]
the right-way,” and the profit will be “to frame all your actions accord-
ing to these grounds,” thereby “reaping profit to your selves” and turn-
ing the king’s “paine into pleasure.” James says nothing about his
obligations to his subjects, and that is because James does not consider
his relationship with subjects as a partnership among equals or near-
equals. Instead, James infantilizes the nation by equating the ruler to a
father and the ruled to children: “By the Law of Nature the King
becomes a naturall Father to all his Lieges at his Coronation: And as the
Father of his fatherly duty is bound to care for the nourishing, educa-
tion, and virtuous government of his children; even so is the king bound
to care for all his subjects.”9 Needless to say, children (outside the realm
of Shakespearean comedy, at least) do not question the authority of the
father. Dismissing the provisions of mixed monarchy, James argued in
The Trew Law that kings can make law without the advice of Parliament
or any other “subaltern judiciall seate.” Even though James did not have
England particularly in mind when he wrote The Trew Law, he included
his new country among the “free Monarchies” whose monarch remains
“free” from legal restraint.10
However, James’s view of monarchy ran squarely against English the-
ory and practice.11 The English tradition of kingship is best described by
Sir John Fortescue in his late fifteenth-century treatise, In Praise of the
Laws of England:
[A]mong the civil laws there is a famous sentence, maxim or rule,

which runs like this, “what pleased the prince has the force of law.”
The laws of England do not sanction any such maxim, since the king
of that land rules his people not only royally but also politically, and
210 Peter C. Herman
so he is bound by oath at his coronation to the observance of

his law.12
Nor can the English monarch “change their laws, nor make new ones,
without the concession or assent of his whole realm expressed in his
parliament.”13 Sir Thomas Smith, in De Republica Anglorum (first pub-
lished in 1583) calls absolute kingship in peacetime “very dangerous,”
and asserts “that the most high and absolute power in the realme of
England, is in the Parliament” because that is where the prince and rep-
resentatives of the entire nation together “abrogateth old lawes, maketh
new, giveth orders for thinges past, and for thinges hereafter to be
followed.”14 While the relations between Elizabeth and her parliament
were sometimes testy,15 the late queen never used her speeches to
Parliament to make the sort of claims James did for the power of the
monarchy, and in the printed version of her final speech to Parliament,
she explicitly rejected the absolutist tenet that the monarch’s will is law:
“You must not beguile your selves, nor wrong us, to think that the glos-
ing lustre of a glistering glory of a Kings title may so extol us, that we
think all is lawful what we list” (my emphasis).16
The clash between James’s conception of the monarchy and the con-
straints assumed by the Ancient Constitution was hardly an abstract,
arid debate. While the Ancient Constitution, being unwritten and sub-
ject to “custom,” was necessarily malleable and subject to revision,
before James became the king of England the debate took place within
mutually understood boundaries. James, however, stepped outside those
boundaries almost from the moment he arrived in England, and his
indifference to English legal traditions raised concerns about what the
future might hold. On April 21, 1603, while on his way from Scotland to
be crowned in London, the new king and his entourage stopped at
Newark in Lincolnshire, where a thief thought to take advantage of the
crowds but was apprehended “doing the deed. . . . his Majestie hearing
of this nimming gallant directed a warrant presently to the recorder of
New-warke, to have him hanged, which was accordingly executed.”17
The problem, of course, is that James had the thief executed without the
benefit of a trial.18 In short, James acted outside, not in accordance with,
English law. News of this incident traveled fast, and at least one courtier,
Sir John Harington, understood full well the implications of this rash
act: “I shall not hastily put forth for a new Master. I heare oure newe
Kinge hath hangede one man before he was tryed; ’tis strangely done;
now if the wynde blowethe thus, why may not a man be tryed before he
hath offended?”19 Harington chose rustic, bibulous retreat,20 but the
House of Commons had no such option, and the fencing between

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

Resemblance between a Body by Nature and the Body Politick of this
212 Peter C. Herman
Your Majesty’s Commonwealth, figured and drawn out of the Rules of

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

between the King and the House, That there is just Fear of some great
Abuse in the late Election: that, in his Conscience, the King hath
been much misinformed; and that he had too many Misinformers;
which, he prayed God, might be removed or lessened in their
Number: That now the Case of Sir John Fortescue and Sir Francis
Goodwin was become the Case of the whole Kingdom: that old
Lawyers forget, and commonly interpret the Law according to the
Time: That, by this Course, the free Election of the Country is taken
away, and none shall be chosen but such as shall please the King and
Council. Let us therefore, with Fortitude, Understanding, and
Sincerity, seek to maintain our Privilege; which cannot be taken or
construed, any Contempt in us, but merely a maintenance of our
common Right, which our Ancestors have left us, and is just and fit
for us to transfer to Posterity.29
Interestingly, the members also returned to the disputed metaphor of

the body politic: “Objec. We (they say) are but half of the Body; and the
Lords are the Parts nearest the Head. Answ. Nothing ascends to the
Head, but by the Breasts, etc.”30
While a compromise settled the question of who won the election, the
constitutional issue did not go away. Tensions continued to rise, so
much so that in June 1604, the Commons decided to confront the dis-
trust head on. Thus they created a remarkable document, the “Form of
Apology and Satisfaction.” While couched in the form of extreme com-
pliment, the “Apology” begins by telling James that wise though he may
be, he does not understand England:31
Howbeit, seeing no human wisdom, how great soever, can pierce

into the particularities of the rights and customs of people or of the
sayings and doings of particular persons but by tract of experience
and faithful report of such as know them . . . , what grief, what
anguish of mind hath it been unto us at some time in presence to
hear, and so in other things to find and feel by effect, your gracious
Majesty (to the extreme prejudice of all your subjects of England,
and in particular of this House of the Commons thereof) so greatly
wronged by misinformation as well touching the estate of the one as
the privileges of the other, and their several proceedings during this
Parliament.
The king’s position in the matter of Fortescue v. Goodwin, that is, “That
we held not privileges of right, but of grace only, renewed every
Parliament by way of donature upon petition, and so to be limited,”32
214 Peter C. Herman
unambiguously leads, as the document states:
directly and apparently to the utter overthrow of the very fundamen-

tal privileges of our House, and therein of the rights and liberties of
the whole Commons of your realm of England which they and their
ancestors from time immemorable have undoubtedly enjoyed under
your Majesty’s most noble progenitors, we, the knights, citizens, and
burgesses of the House of Commons assembled in Parliament, and in
the name of the whole commons of the realm of England, with uni-
form consent for ourselves and our posterity, do expressly protest, as
being derogatory in the highest degree to the true dignity, liberty, and
authority of your Majesty’s High Court of Parliament, and conse-
quently to the rights of all your Majesty’s said subjects and the whole
body of this your kingdom: And desire that this our protestation may
be recorded to all posterity.33
We are now, I think, in a better position to apprehend the full com-

plexity of the political situation in 1606, the year Shakespeare wrote
Macbeth. On the one hand, one cannot underestimate the degree of
prestige accorded the English monarch. When James “commanded, as
an absolute King, that there might be a Conference between the House
and the Judges” over the election controversy, one member of the House
“stood up, and said, The Prince’s Command is like a Thunderbolt; his
Command upon our Allegiance like the Roaring of a Lion: To his com-
mand there is no Contradiction.”34 And the trauma of the Gunpowder
Plot resulted in a great outpouring of loyalty toward James and revulsion
toward the plotters. But, on the other hand, gratitude for the govern-
ment’s safety (we should remember that the plotters intended to blow
up Parliament as well as the king)35 did not erase the wrenching unease
caused by James’s absolutism, and the Commons explicitly warned
James that his absolutist policies were causing a “great alienation of
men’s hearts.”36 While nobody was calling for the king’s head (yet), a
steadily rising number understood that James’s insistence on royal
supremacy threatened the fundamental liberties of the English nation,
and nobody knew quite what to do.
II
The political incertitude of James’s early reign could be said to find its
objective correlative in the highly uncertain dramatic language and
action of Macbeth. “Fair is foul, and foul is fair, / Hover through the fog
and filthy air,”37 the Weird Sisters declaim, in an accurate foreshadowing

of the rest of the play. Macbeth and “The merciless Macdonwald” cling
together “as two spent swimmers” (1.2.8–9), thus blurring the distinc-
tions between them.38 Before murdering Duncan, Macbeth sees a dagger
before him which he tries to clutch, only finding yet more confusion:
“I have thee not, and yet I see thee still” (2.1.36), unsure whether the
dagger constitutes a genuine vision or “a false creation, / Proceeding
from the heat-oppressèd brain” (2.1.40–41). Macbeth then hears a bell
that will “summon [Duncan] to heaven or to hell” (2.1.65) – it is not clear
which. Nothing in this play is certain; nothing is sure. Absolutes have
collapsed into ambiguities.39 But while the political uncertainties gener-
ally subtend the play’s “settled unsettledness,”40 in Harry Berger’s phrase,
the ambiguation of certainties also has very specific applications.
As David Norbrook has observed, Shakespeare sets this play at “a key
turning point” for the Scots monarchy generally and the Stuart line
particularly,41 for it is at this point in Scots history that the line of kings
ending (culminating?) in James I of England begins. Even further, the
story, as invented in 1526 by Hector Boece,42 of Macbeth and Banquo
happening upon three supernatural women who prophesy that the for-
mer will be king, the latter the father of kings, constitutes the founding
moment for the Stuart dynasty and served to confirm James’s sense that
his line has supernatural authority. This legend received wide circulation
in England when Francis Thynne incorporated Boece’s work into The
Historie of Scotlande (1577):43
Shortly after happened a straunge and uncouth wonder, whiche

afterwarde was the cause of muche trouble in the realme of Scotlande
as ye shall after heare. It fortuned as Makbeth & Banquho journeyed
towarde Fores, where the king as then lay, they went sporting by the
way together without other companie, save only themselves, passing
through the woodes and fieldes, when sodenly in the middes of a
launde, ther met them .iii women in straunge & ferly apparel, resem-
bling creatures of an elder worlde, whom when they attentively
behelde, wondering much at the sight, The first of them spake &
sayde: All hayle Makbeth Thane of Glammis (for he had lately entred
into that dignitie and office by the death of his father Synel.) The .ii
of them said: Hayle Makbeth Thane of Cawder: but the third sayde:
All Hayle Makbeth that hereafter shall be king of Scotland. [Then
Banquo asks about his future.] Yes sayeth the first of them, wee prom-
ise greater benefites unto thee, than unto him, for he shall reygne in
deede, but with an unlucky end: neyther shall he leave any issue
216 Peter C. Herman
behinde him to succeede in his place, where contraily thou in deede

shalt not reygne at all, but of thee those shall be borne which shall
governe the Scottishe kingdom by long order of continuall discent.
(sig. Q2v)44
Significantly, the 1577 Historie of Scotlande describes the three women as

strange and “ferly,”45 meaning, according to the OED, “something won-
derful, a marvel” (def. B.1), an association emphasized by their resem-
bling creatures of an “elder worlde,” “elder” likely being a cognate for
“eldritch,” meaning, again according to the OED, “uncanny” or “con-
nected with elves.”46 The accompanying woodcut (the only one not
used elsewhere in the Historie or Holinshed’s Chronicles, and so a good
guide for how the editors wanted their reader to read this scene47) and
marginal note together emphasize how these women are spirits of
another sort. While the text has them as “three women supposing to be
the weird sisters or fairies,”48 the reader sees three well-dressed, elabo-
rately coiffed, attractive Elizabethan ladies whose collective attire seems
to mark them as upper class. There is nothing remotely frightening or
ominous about them. This legend also formed the basis of Dr. Matthew
Gwinn’s entertainment for King James upon the occasion of his visit to
Oxford in 1605, in which “three young youths, in habits and attire like
Nymphs,”49 “foretold to thy [Banquo’s] descendants an endless empire,”
and they predict the same for James: “We three sisters in like manner
foretell the same fates for thee and thine.”50 According to a contempo-
rary account, “the King did very much applaude” Gwinn’s “conceipt.”51
This legend appealed to James because he firmly believed that lineal
descent conferred authority as well as legitimacy. Consequently, The
Trew Law asserts that “the lineall succession of crowns” started by God
makes rebellion unlawful,52 and the king’s supporters enthusiastically
endorsed this position. The Lord Chancellor, Ellesmere, for instance,
noted that James was justly proud of “the continued line of lawfull dis-
cent, as therein he exceedeth all the Kings that the world now
knoweth.”53 That lineal descent, as stated by Boece as well as other his-
torians and popularized by The Historie of Scotlande, starts with the
prophecy to Banquo and Macbeth.54 Shakespeare’s treatment of this leg-
end is, therefore, of central importance to understanding the politics of
his play. But Shakespeare neither fully endorses nor fully subverts any
political ideology. Instead, he offers two opposing interpretations of the
legend without settling on either one.
Certainly, Shakespeare appears to “dramatize the Stuart Myth . . . that
James had constructed and pushed as one part of his cult of divine
right.”55 The “Weird Sisters,” as Macbeth calls them in his letter to his
wife (1.5.6), repeat almost verbatim the prophecies in The Historie of
Scotlande and in Gwinn’s Tres Sibyllae. Furthermore, the “show of eight
kings” not only repeats James’s desire that the Stuart line “will stretch out
to th’crack of doom” (4.1.117) – the proposed union of England and
Scotland, he will tell Parliament, will enable James and his “posteritie (if it
so please God) [to] rule over you to the worlds ende”56 – but also ends with
the last king holding “a glass in his hand,” as the stage direction has it.
The significance of the “glass” goes beyond catching “the counte-
nance of the king,”57 for the mirror in the early modern period was not
invoked for its reflective qualities. Rather, the reflection in the mirror
often signified an almost neoplatonic version of the truth. “The object
viewed in the mirror is almost never the self,” Debora Shuger informs us;
rather, a mirror provides “a small-scale version of a large subject.” That
is to say, the object in the mirror is not a reflection so much as “an exem-
plary image.”58 To give two examples from Shakespeare, Henry V is a
“mirror of all Christian kings” (Henry V 2.Chorus.6) and the Earl of
Salisbury is a “mirror of all martial men” (1 Henry VI 1.4.75). “These are
not quite platonic mirrors,” Shuger continues, “but they are, as it were,
platonically angled, tilted upwards in order to reflect paradigms rather
than the perceiving eye.” ’59 Therefore, to conclude the show of eight
kings with a “glass” reflecting James’s image goes beyond compliment,
for the image in the glass would tilt upward, to use Shuger’s phrase,
toward a near-platonic ideal of monarchy itself. The compliment is not
so much in the reflected image, but in the conflation of that image with
a perfect image of monarchy. Shakespeare, in other words, dramatizes
not just the king, but the idea of a king.
And yet Shakespeare departs in one key respect from Boece, the
Historie, and Gwinn.60 He replaces the “.iii women in straunge & ferly
apparel, resembling creatures of an elder worlde,” or as the reports of
Gwinn’s play have it, “three young youths, in habits and attire like
Nymphs,”61 with three witches, “so withered and so wild in their attire, /
That look not like th’inhabitants o’th’earth / And yet are on’t”
(1.3.40–42), who try to silence Banquo by putting a “chappy finger” to
their “skinny lips” (1.3.44, 45), and whose very sex appears indeterminate:
“You should be women, / And yet your beards forbid me to interpret /
That you are so” (1.3.45–47). They are, as Macbeth will say later in the
play, “secret, black, and midnight hags” (4.1.48–49), not three elvish
prophetesses, as in Boece, Holinshed, and Gwinn.
The alteration reinforces a general incertitude, their very presence
emphasizing, as Stuart Clark notes, “the sense of obscurity, uncertainty
218 Peter C. Herman
and dissimulation which clouds the subsequent action.”62 Yet the effect
is also specifically political, for by the figures of the witches Shakespeare
sets in motion two mutually exclusive interpretations of James and his
genealogy. Certainly, the play reproduces, and by doing so, seems to
confirm, Jacobean absolutism by dramatizing the originary moment of
the Stuart dynasty. One can only imagine the extraordinary hush that
fell over the room at this moment when James’s own image appeared
before the audience, the last in the show of eight kings. Also, it is very
likely that the staging of the scene when it was performed at the Globe
or at court was overtly complimentary to James. Yet at the same time, by
altering a detail so important that nobody familiar with the story could
miss it, Shakespeare casts a deep shadow over this concatenation of
prophecy and genealogy.63 James’s future is not predicted by three rather
dignified faeries or nymphs, women who may even be the Fates, but by
three obviously Satanic hags, and the switch from a positive to a nega-
tive origin effectively taints the entire line and the ideologies
propounded by that line.
Shakespeare, however, neither entirely undermines James’s absolutism
nor unqualifiedly celebrates it. The legend of divinely, or at least, super-
naturally authorized Stuart lineal descent enjoyed wide and deep sup-
port, as did the institution of monarchy itself. “The name of king [is] a
sweet name,” declared the House of Commons; there is a “Plenitude of
Power in it:–A name, which God taketh upon him.”64 Yet it seems
unlikely that the alteration of this legend’s unimpeachable source, fairies
or the Weird Sisters, to the highly problematic one, the “midnight hags,”
would have gone unnoticed. Shakespeare thus creates a tension-ridden
dialectic where none existed before: the hags unsettle the legitimacy of
James and Jacobean absolutism, while the extraordinary potency of
monarchy as realized by the figure of the king himself seemingly recu-
perates and occludes the source of its power. The matter is left suspended.
III
Shakespeare gives the constitutional issues of this play the same treat-
ment. The nub of the controversy is this short exchange between Ross
and MacDuff:
ROSS: Then ’tis most like

The sovereignty will fall upon Macbeth.
MACDUFF: He is already named and gone to Scone
To be invested. (2.4.29–32)
The fact that some indeterminate body “names” Macbeth king and he
has “gone to Scone”65 to receive the crown sets in motion two mutually
exclusive sets of legal consequences, representing equally opposed con-
ceptions of monarchy, that derive from different ideas about a coronation:
does being crowned entail the monarch’s acceptance of a contract with
his people or not?
James denied the existence of any “mutuall paction and adstipulation . . .
betwixt the King and his people,”66 and so, in his view, Macbeth’s nam-
ing at Scone would have two related consequences. First, Macbeth’s
investiture as king would have elevated him beyond the reach of
Scotland’s laws because, according to The Trew Law, “the King is above
the law, as both the author and giver of strength thereto.” Power does
not flow from the people. Rather, “power flowes always from him selfe,”
not the other way, and unlike Elizabeth, he endorses “the old definition
of a King, and of a law, which makes the king to bee a speaking law, and
the Law a dumbe king.” While it is a good idea for the monarch to
“frame all his actions” according to the law, “yet is hee not bound
thereto but of his good will.”67 Second, because the monarch is account-
able only to God, all resistance is forbidden. Since only God has the
power to make a king, God “hath the onley power to unmake him.”68
Rising up against a king is “monstrous and unnatural,” equivalent to
patricide: “can any pretence of wickedness or rigor on his part be a just
excuse for his children to put hand into him?”69
Furthermore, violent seizure of power presents no bar to legitimacy.
James points to the fact that the Scots monarchy originated in an act of
foreign conquest: “For as our Chronicles beare witnesse . . . there comes
our first King Fergus, with a great number with him, out of Ireland, which
was long inhabited before us, and making himselfe master of the coun-
trey, by his owne friendship, and force . . . hee made himselfe King and
Lord as well of the whole landes, as of the whole inhabitants within the
same.”70 The same principle applies to England:
And although divers changes have beene in other countries of the

blood Royall, and kingly house, the kingdome being reft by conquest
from one to another, as in our neighbour countrey in England, . . . yet
the same ground of the kings right over all the land, and subjects
thereof remaineth alike in all other free Monarchies, as well in this:
For when the bastard of Normandie came into England, and made
himselfe king, was it not by force, and with a mighty army? Where he
gave the Law, and tooke none, changed the Lawes, inverted the order
of government, set downe the strangers his followers in many of the
220 Peter C. Herman
old possessours roomes. . . . And yet his successours have with great
happinesse enjoyed the Crowne to this day; Whereof the like was also
done by all them that conquested them before.71
But to at least some in Shakespeare’s audience, whether the play was per-
formed at court or at the Globe, Macbeth’s investiture at Scone would
have meant that he has indeed agreed to a “contract made . . . at the
coronation of a King,”72 that he is now subject to the same limitations
and obligations, the same coronation oath, binding England’s mon-
archs. This oath, as recorded in the fourteenth-century Liber Regalis, con-
sists of three questions, the first being: “Will you graunt and keepe, and
by your oath Confirme, to the people of England, the Lawes and
Customes to them graunted, by the Kings of England”; the answer is “I
graunte and promise so to do.”73 Having sworn to uphold the law, the
monarch is now subject to the law, since the law precedes and creates
the monarch. Or as Sir Edward Coke put it in 1604, “The King is under
no man; but only God and the law, for the law makes the King:
Therefore let the King attribute that to the law, which from the law he
hath received, to witt power and dominion.”74
The place of resistance, to be sure, is trickier, since overt statements of
resistance would be treasonous, and one can find many statements, such
as An Homily against Disobedience and Willful Rebellion (1570), condemn-
ing rebellion in the strongest possible terms. However, the strictures
against rebellion of the Homily have to be weighed against three devel-
opments. The first is the development of both Catholic and Protestant
resistance theory, which took as its fundamental premise exactly the
“mutuall paction and contract bound up, and sworne betwixt the king,
and the people” James denies.75 In A Defense of Liberty Against Tyrants
(1579), for example, Philippe du Plessis Mornay argued for the existence
of “a mutual obligation between the king and the people,” and if a king
should violate this agreement, then he is “a tyrant [who] may be lawfully
resisted.”76 One finds nearly the same argument in Christopher
Goodman’s How Superior Powers oght to be obeyd of their subjects, and the
subtitle allows exactly what James denies: and Wherein they lawfully by
Gods Worde be disobeyed and resisted (1558). “Obedience,” Goodman
thunders, “is necessarie where God is glorified, but if God be dishonored
thy obedience is abominable in the sight of God, be it never so beautiful
in mans eyes.”77 If, in other words, a monarch breaks God’s laws by act-
ing tyrannously, rebellion is not only allowed, but is a religious duty.
The second is the specifically English tradition, preceding the flower-
ing of resistance theory toward the mid-sixteenth century, of granting
the subject a limited right to depose, either by law or by violence, a

monarch who goes beyond the traditional limits of royal prerogative.
The historical Richard II, for example, was not violently deposed, but
removed from power by process of law. As Edward Hall writes (and his
account is reproduced almost verbatim in Holinshed’s Chronicles),
Richard’s enemies put before Parliament “.xxxv. solempne articles” to
prove that he “was an unjust and unprofitable Prince and a tiraunte over
his subjectes, and worthy to bee deposed.”78 Of particular interest is
number 16: “he said that the lawes of the realme were in his head, and
som time in his brest, by reason of whiche fantasticall opinion, he
destroyed noble men and empoverished the pore commons.”79
Therefore, this document concludes, “kyng Richard was worthy to be
deposed of al honor, rule and Pryncely governance.”80 This tradition
also found its way onto the early modern stage. In Christopher
Marlowe’s Edward II (1593; pub. 1598), the Younger Mortimer states that
if the king does not consent to banishing Gaveston, who undoubtedly is
causing chaos in the realm, “then we may lawfully revolt from him.”81
Revolt is not outside the law, but a remedy the law provides in extreme
situations. Finally, Shakespeare dramatizes Richard II’s deposition in The
Tragedy of King Richard II (1595). And while Richard is eventually mur-
dered, there is little doubt in this play that Richard’s breaking the line of
succession by his extralegal seizure of Henry Bolingbroke’s property
legitimates the resistance to him. While John Selden comes significantly
after Shakespeare’s time, his answer to the question “What law is there
to take upp Armes against the prince in Case hee breakes his Covenant?”
nonetheless applies to the early seventeenth century: “Though there bee
no written law for it yet there is Custome which is the best Law of the
Kingdome; for in England they have allwayes done it.”82
The third factor is the tradition in Scotland, firmly and approvingly
represented in The Historie of Scotlande, that the nobility can remove
monarchs who become tyrants. To give but one example from many
(since nearly every Scots monarch ends up deposed or murdered), the
Scots nobility, fed up with the devastation King Grime is inflicting on
his country, beg Malcolm “to deliver the common wealth of such tyran-
nie as was practiced by the misgovernment of Grime and his unhappie
counsellers,” and Malcolm obliges, becoming the next king.83
Kastan and Coddon are therefore entirely right to argue that
Shakespeare uses Macbeth to reveal “the way the play inscribes not
merely the contradictions in the source material but in the absolutist
logic itself.”84 James’s assertion, repeated in the show of eight kings, of
unbroken masculine lineal descent occludes the violence necessary for
222 Peter C. Herman
the Stuart line to begin, since it is Duncan’s line that is restored at the
end of Macbeth, not Banquo’s. Thwarting James’s desire for a seamless
line, Shakespeare reveals the violence attending the establishment and
maintenance of political power. Yet the matter is even more complex.
Rather than simply subverting absolutism by invoking the Ancient
Constitution, Shakespeare tests both absolutism and the Ancient
Constitution, and finds both wanting.
In The Trew Law, James maintains that there are no circumstances
whatsoever that could justify taking arms against an “invested”
monarch, no matter how egregiously bad the conduct: “can any pre-
tence of wickedness or rigor on his part be a just excuse for his children
to put hand into him?”85 James not only prefers tyranny to the chaos of
rebellion, but cannot imagine any possible circumstances in which a
monarch’s behavior could be so evil that his deposition would be
justified: “For a king cannot be imagined to be so unruly and tyrannous,
but the common-wealth will be kept in better order, notwithstanding
thereof, by him, than it can be by his way-taking.”86 By contrast, in
Macbeth, Shakespeare reveals the necessary, logical consequence of
James’s position by making explicit just what horrors The Trew Law
would allow to continue unchecked.
This is why Shakespeare presents us with a clear-cut, if superficial, dis-
tinction between a saintly, trusting King Duncan and the duplicitous,
murderous Macbeth. As we have seen, James rules out resistance even in
the case of foreign conquest (Fergus and William the Conqueror), but
what about, Shakespeare seems to ask, the murder of a king such as
Duncan, who, in the play, is by no means a tyrant? Does James mean to
exclude resistance in this instance as well? Duncan, as Macbeth admits,
“Hath borne his faculties so meek, hath been, / So clear in his great
office, that his virtues / Will plead like angels, trumpet-tongued against /
The deep damnation of his taking off” (1.7.16–19). Even more, Macbeth
acknowledges that his treachery is personal as well as political, since he
is both Duncan’s “kinsman and his subject” (1.7.13). James, in The Trew
Law, does not explicitly address this scenario. Yet his treatment of
William the Conqueror strongly implies that how one gets the crown is
irrelevant. Macbeth’s actions therefore would not overshadow his being
crowned at Scone. According to the standards set out in The Trew Law,
once Macbeth becomes king, he is beyond the reach of law.
The worst outrage arrives in 4.2, when Shakespeare invents the on-
stage murder of Lady Macduff and her son. Critics are divided as to
whether this scene reinforces or undoes the homology between the pub-
lic and the private,87 yet however one construes the relationship, the
larger point is that not even this slaughter, according to James, merits an
invested king’s removal. Shakespeare seems to be asking, is Scotland
truly in “better order” with Macbeth at the helm? Is “patience”88 really
the only recourse against a monarch who breaks virtually all bonds,
who tries to murder virtually everybody who stands between him and
the throne? Did the prophets really have someone like Macbeth in mind
when they forbade “the people to rebel against the Prince, how wicked
soever he was”?89 Throughout Macbeth, Shakespeare reveals, in other
words, the radical cost should James’s gnosis ever translate into praxis.
Shakespeare carries this interrogation of absolutism’s logical conse-
quences into 4.3. In this scene, which very closely follows its source in
The Historie of Scotland, Malcolm “tests” Macduff by constantly stating
how he will be a tyrant, and Macduff keeps on excusing Malcolm’s
future crimes. The problems here are multiple. First, once more, the
scene puts into question James’s statement in The Trew Law that no
monarch can be so bad but that “the common-wealth will be kept in
better order” with him on the throne.90 Malcolm claims that “there’s
bottom, none, / In my voluptuousness. Your wives, your daughters, /
Your matrons and your maids could not fill up / The cistern of my lust,
and my desire / All continent impediments would o’erbear / That did
oppose my will” (4.3.61–66). Then he adds “staunchless avarice” to his
list of sins, and he warns that if he were king, “I should cut off the nobles
for their lands, / Desire his jewels and this other’s house, / And my more-
having would be as a sauce / To make me hunger more, that I should
forge / Quarrels unjust against the good and loyal, / Destroying them for
wealth” (4.3.79–84). And, finally, he asserts that he will “abound / In the
vision of each several crime, / Acting it many ways. Nay, had I power, I
should / Pour the sweet milk of concord into hell, / Uproar the univer-
sal peace, confound / All unity on earth” (4.3.96–101). All of these
crimes must be patiently endured, according to James, since under no
circumstances is deposition justified.
The answer to this state of affairs might be the right of resistance
implicit in the Ancient Constitution, and Malcolm follows exactly the
script laid out by Hall, Holinshed, Hayward, Marlowe, and Shakespeare
himself in that he deposes the tyrant and, with the permission of his
allies, takes the throne himself, presumably to rule more justly than
Macbeth. Furthermore, each of Macduff’s responses to Malcolm’s self-
accusations grants the legitimacy of resisting tyranny (precisely what
James denies). Lust, he says, “hath been / Th’untimely emptying of the
happy throne / And fall of many kings” (4.3.69–70), and avarice (which
“sticks deeper” than lust) also “hath been / The sword of our slain kings”
224 Peter C. Herman
(4.3.87–88). Even Malcolm’s laundry list of crimes ends with the ques-
tion of whether he is “fit to govern” (4.3.102), implying that one
requires something other than parentage or conquest to qualify as a
legitimate ruler.
But while the play asserts the legitimacy of resistance, Macduff allows
Malcolm so much latitude that one has to wonder just how much dif-
ference there would be between the degree of disorder he would tolerate
in order to rid Scotland of Macbeth and the degree of disorder allowed
by James’s absolute refusal to grant any right of resistance whatsoever.
Both The Historie of Scotlande and Shakespeare call attention to this issue
by having Macduff allow behaviors that caused the deposition of earlier
kings. When Malcolm accuses himself of boundless lust, he recalls, with
equally over-the-top rhetoric, King Culene, who also “was given unto
lechery beyond all the terms of reason, sparing neyther mayde, widowe,
nor wife, profane nor religious, sister nor daughter.”91 Equally, when
Malcolm accuses himself of boundless avarice, he recalls King Grime,
who “through long slouth and encrease of ryches, became a most cov-
etous tyrant, and so corrupted in manners and conditions, that it passed
the terms of al reason and equitie.”92 Yet while Culene’s nobles, fed up
with the king’s uncontrolled sexual appetite and venereal disease,
“caused a Parliament to be summoned at Scone, where they determined
to depose King Culene; and appoynt some other (whom they should
judge most meetest) to reygne in his place,”93 Macduff responds by
granting Malcolm a pass: “We have willing dames enough. / There can-
not be / That vulture in you to devour so many / As will to greatness ded-
icate themselves” (4.3.74–76). While Grime’s “staunchless avarice”
(4.3.79) incited his nobles to beseech Malcolm, Prince of Cumberland,
“to deliver the common wealth of such tyrannie as was practised by the
misgovernment of Grime and his unhappie councellors,”94 Macduff
again grants Malcolm a pass: “Yet do not fear; / Scotland hath foisons to
fill up your will / Of your mere own” (4.3.87–89).
One can surely understand why Macduff, whose family was slaugh-
tered onstage, would prefer almost anybody, no matter how bad, to
Macbeth. Yet his desire for vengeance transforms a fairly simple rule –
commit tyranny, defy the rule of law, and you are subject to deposition –
into an almost unsolvable ethical dilemma. Is someone who would rule
like King Grime, whose greed led to a civil war that caused “more
mischiefe and trouble than ever had beene seen afore that time in
Scotland,”95 really preferable to Macbeth, even if in other circumstances
insatiable greed will not be tolerated? Is a lesser tyrant, whose acts would
ordinarily be sufficient to warrant violent deposition, preferable to a
greater tyrant? Is Macduff’s judgment so clouded by grief and desire for

vengeance that he has lost his moral bearings? Or have we entered a
world where there is no right, only degrees of wrong? 96
In the Chronicles, however, after Malcolm accuses himself of lacking all
trustworthiness, being “inclined to dissimulation, telling of leasings
[lies], and all other kinds of deceyt,”97 Macduff recovers some (but not
all) of his moral standing when he finally decides that he can tolerate no
more, that Scotland is faced with a choice between Macbeth, a “cursed
and wicked tyrant,” and Malcolm, who “by his owne confession he is not
onley avaritious, and given to unsatiable lust, but so false a traytour
withall, that no trust is to be had to any word he speaketh.”98 The only
response to this aporia is to flee the country. Of course, at this point,
Malcolm reveals that he had been testing Macduff, that he is in fact com-
pletely virtuous, and the two conclude their colloquy: “Incontinentlie
hereupon they embraced eche other, and promising to bee faythfull the
one to the other, they fell in consultation, howe they might best provide
for al their businesse, to bring the same to good effect.”99
But in Shakespeare’s play, the aporia is not resolved. As in the
Chronicles, Malcolm’s final, extravagant self-accusation finally puts him
beyond the pale. Macduff condemns him as unfit “to live,” and he
bewails Scotland’s fate:
O nation miserable,
With an untitled tyrant bloody-sceptered,
When shalt thou see thy wholesome days again,
Since that the truest issue of thy throne
By his own interdiction stands accurst
And does blaspheme his breed? (4.3.104–109)
Shakespeare then alters his source in two very significant ways. First,
unlike his prototype in the Chronicles, Macduff does not specifically con-
demn avarice and lust. It is not clear if “his own interdiction” refers to
all of Malcolm’s self-accusations or just the final list. In other words,
Macduff may still believe the avaricious and lustful Malcolm fit to gov-
ern Scotland if that is what it takes to get rid of Macbeth. Finally, in the
Chronicles, this dialogue ends with the two resolving their differences
and looking to the future, yet in Macbeth, after Malcolm unspeaks his
own detraction, Macduff draws back, and his response to Malcolm’s
query, “why are you silent” (4.3.138), is the very definition of the
aporetic condition: “Such welcome and unwelcome things at once / ’Tis
hard to reconcile” (4.3.139–40).100
226 Peter C. Herman
In conclusion, while Macbeth does not condone absolutism, neither

does it fully embrace the terms of the Ancient Constitution. Given the
degree of mayhem Macduff will allow, the practical application of abso-
lutism and the Ancient Constitution, though theoretically distinct,
makes them “dismayingly similar.”101 Both ideologies are put into play,
but neither is determinative, each problematic. Drawing on the growing
political controversies caused by Jacobean absolutism, Macbeth interro-
gates both political philosophies circulating in early modern England
without endorsing either. The aporia of politics outside the playhouse
leads to the aporia of politics on the stage.
Notes
1. See for example Henry N. Paul, The Royal Play of “Macbeth” (rpt. New York:
Octagon Books, 1971); and Alvin Kernan, Shakespeare, the King’s Playwright:
Theater in the Stuart Court, 1603–1613 (New Haven, CT: Yale University Press,
1995), pp. 75–80.
2. Karin S. Coddon, “ ‘Unreal Mockery’: Unreason and the Problem of Spectacle
in Macbeth,” English Literary History 56:3 (1989), 485–50; David Scott Kastan,
“Macbeth and the ‘Name of King,’ ” Shakespeare After Theory (New York:
Routledge, 1999), pp. 165–82; David Norbrook, “Macbeth and the Politics of
Historiography,” Politics of Discourse: The Literature and History of Seventeenth-
Century England, ed. Kevin Sharpe and Steven N. Zwicker (Berkeley, CA:
University of California Press, 1987), pp. 78–116; Alan Sinfield, “Macbeth:
History, Ideology, and Intellectuals,” Faultlines: Cultural Materialism and the
Politics of Dissident Reading (Berkeley, CA: University of California Press, 1992),
pp. 95–108; Rebecca Lemon, “Scaffolds of Treason in Macbeth,” Theatre Journal
54 (2002), 25–43.
3. For example Jonathan Goldberg, “Speculations: Macbeth and Source,” in
Shakespeare Reproduced: The Text in History and Ideology, ed. Jean E. Howard and
Marion F. O’Connor (New York: Methuen, 1987), pp. 242–64; Coddon,
“ ‘Unreal Mockery,’ ” and Harry Berger Jr., “The Early Scenes of Macbeth:
Preface to a New Interpretation,” in Making Trifles of Terrors: Redistributing
Complicities in Shakespeare, ed. Peter Erickson (Stanford, CA: Stanford
4. Kastan, “Name of King,” p. 173. See also Norbrook, “Politics of
Historiography,” p. 116, and Sinfield, “History, Ideology,” p. 108. Michael
Hawkins recognizes that the constitutional issues in Macbeth are “as clouded
as most of the other political topics in the play,” but he then qualifies this
insight: “while the constitutional issue is unavoidably present, it is not
stressed” (“History, Politics and Macbeth,” Focus on “Macbeth,” ed. John Russell
Brown [London: Routledge & Kegan Paul, 1982]), pp. 174, 175–76.
5. Coddon, “Unreal Mockery,” 486–90.
6. The canonical text on the Ancient Constitution remains J. G. A. Pocock, The
Ancient Constitution and the Feudal Law: English Historical Thought in the
Seventeenth Century (Cambridge: Cambridge University Press, 1957). See also
Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English
Political Thought, 1603–1642 (University Park, PA: Penn State University

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

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

31. “Form of Apology and Satisfaction, 1604,” Constitutional Documents of the
Reign of James I, ed. J. R. Tanner (Cambridge: University Press, 1930), p. 218.
32. Tanner, “Apology,” p. 220.
33. Tanner, “Apology,” p. 221.
35. In his sermon on the attempted destruction of England’s government, John
Donne notes that the plotters “made that house, which is the hive of the
Kingdome, from whence all her honey comes; that house where justice herself
is conceived, in their preparing of Laws, and inanimated, and quickned and
borne by the Royall Assent, there given; they made that whole house one
Murdring peece” (Donne’s Sermons: Selected Passages, ed. Logan Pearsall Smith
[Oxford: Clarendon Press, 1959], p. 50).
36. Tanner, “Apology,” p. 220. Lord Chancellor Ellesmere is an example of
exactly this sort of alienation. Whereas earlier he would have emphasized the
king’s superiority to the law, by 1614 his frustration with the king’s insistence
on royal prerogative led him to declare that “the King hath no prerogative
but that which is warranted by law and the law hath given him” (quoted in
Louis Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor
Ellesmere [Cambridge: Cambridge University Press, 1977], pp. 76, 76 n. 1).
37. Macbeth, 1.1.11–12. All references will be to Macbeth: Texts and Contexts,
ed. William C. Carroll (New York: Bedford St. Martin’s, 1999).
38. See Berger’s trenchant analysis of this scene, “Early Scenes of Macbeth,”
pp. 75–76.
39. Coddon, “Unreal Mockery,” 489.
40. Berger, “Early Scenes of Macbeth,” p. 87.
41. Norbrook, “Politics of Historiography,” p. 83.
42. Paul, Royal Play, p. 168.
43. Thynne’s The Historie of Scotlande was included in The firste volume of the
Chronicles of England, Scotlande, and Ireland, “gathered and set forth, by
Raphaell Holinshed” (London, 1577). But The Historie of Scotlande has its
own title page and its own dedication. The page numbers start with “1” and
the signatures begin with “A.” It is a book within a book, and therefore, I
will refer to it as The Historie of Scotland rather than Holinshed’s Chronicles,
as is conventional. I use the 1577 rather than the 1587 edition of because I
am convinced by Arthur F. Kinney’s argument that the 1577 illustrations
indisputably show that Shakespeare used the earlier rather than the later
version. On sig. B5, for instance, one finds a dagger floating in the air. See
Arthur F. Kinney, “Scottish History, the Union of the Crowns and the Issue
of Right Rule: The Case of Shakespeare’s Macbeth,” in Renaissance Culture in
Context: Theory and Practice, ed. Jean R. Brink and William F. Gentrup
(Brookfield: Ashgate, 1993), pp. 32–37. For an excellent analysis of the 1577
illustrations generally, see James A. Knapp, Illustrating the Past in Early
Modern England: The Representation of History in Printed Books (Aldershot:
Ashgate, 2003), pp. 162–206. In quoting from The Historie of Scotlande, I
have silently adopted the contemporary usage of u/v and i/j and expanded
contractions.
44. Historie, sig. Q2v.
230 Peter C. Herman
45. In the 1587 edition of the Historie, “ferly” is changed to “wild” (quoted in
Carroll, p. 141).
46. Carroll glosses this phrase as “ancient times” (p. 141). However, the Scots
context suggests that “elvish” is the likelier meaning, as all of the OED’s
examples come from Scotland. Furthermore, both the prose and the verse
translations of Boece’s history use “edritche.” In William Stewart’s version,
their clothing “wes of elritche hew” (The Buik of the Cronicis of Scotland
[London: Longman, Brown et al., 1858], vol. 6, part 2, p. 636); John
Bellendon’s prose version has this phrase as “wemen clothit in elrage &
uncouth weid” (Chronicle of Scotland [Edinburgh, 1540], sig. Ll3r). I am grate-
ful to Anne Lake Prescott for help with this point.
47. Carroll, “Note on Figure 7,” p. 141.
49. Nichols, Progresses, p. 543.
50. Translated by Henry Paul, The Royal Play of “Macbeth,” p. 163. The Latin text
can be found in Nichols, Progresses, p. 545.
51. Oxfords Triumph In the Royall Entertainment of his moste Excellent Majestie
(London, 1605), sig. Br.
52. In 1604, the king told Parliament that “my Birthright and lineall descent had
in the fulnesse of time provided for me [the English throne],” that he is “lin-
eally out of the loynes of Henry the seventh” descended, and furthermore,
“justly and lineally descended, not only of that happie conjunction, but of
both the Branches thereof many times before” (Political Writings, pp. 82, 132,
134).
53. Quoted in Kastan, “Name of King,” p. 169.
54. Paul, Royal Play, p. 152. For a reproduction of genealogy, see Carroll’s edition,
p. 125. In 1607, James will tell Parliament that he is “in descent, three hun-
dreth yeeres before CHRIST” (Political Writings, p. 172).
55. Kernan, Shakespeare, the King’s Playwright, p. 77.
57. Mullaney, Place, p. 124.
58. Debora Shuger, “The ‘I’ of the Beholder: Renaissance Mirrors and the
Reflexive Mind,” Renaissance Culture and the Everyday, ed. Patricia Fumerton
and Simon Hunt (Philadelphia, PA: University of Pennsylvania Press, 1999),
p. 22.
59. Shuger, “The ‘I’ of the Beholder,” p. 26. The examples from Shakespeare are
Shuger’s also.
60. Cf. Kinney, “Scottish History,” who argues that “Shakespeare builds his por-
trait of the three weird sisters on the vision in Holinshed” (p. 39).
61. Nichols, Progresses, p. 543.
62. Stuart Clark, “Inverson, Misrule, and the Meaning of Witchcraft,” Past and
Present 87 (1990), 126.
63. On this point, see Mullaney, Place, p. 124; Goldberg, “Speculations,” p. 252;
and Coddon, “Unreal Mockery,” 497.
65. Cf. Norbrook, “Politics of Historiography,” who notes that the play’s sources
stress “the active role of the nobility in choosing and deposing their rules,
[but] in Macbeth references to elections are normally cast in the passive voice
and assimilated to the workings of Fortune” (p. 98).
66. Trew Law, p. 81.

67. Trew Law, all p. 75.
73. According to Legg, the Liber regalis was translated in 1603 for James’s coro-
nation (English Coronation Records, ed. Leopold George Whickham Legg
[London: Archibald Constable, 1901], p. xix). Since Legg does not include
this translation, the text quoted above is from the records of Charles I’s coro-
nation (English Coronation Records, xxxi, p. 251). I am deeply grateful to James
Kinney for this reference. Legg also reproduces a copy of the coronation oath
as revised by Henry VIII. In this document, Henry adds clauses that preserve
the power of the crown. For example, rather than promising that he will
uphold the Church’s liberties, he writes that he will maintain the Church’s
liberties so long as they are “nott prejudyciall to hys Jurysdiccion and dignite
ryall” (p. 240). Henry’s revision was never used, since it would have contra-
dicted the main purpose of the coronation: “to keep the King in check in the
exercise of his powers” (headnote, p. 240).
74. Le Quart Part des Reportes Del Edward Coke (London, 1604), sig. B5r.
75. Trew Law, p. 80. See Robert M. Kingdom, “Calvinism and Resistance Theory,
1550–1580,” in The Cambridge History of Political Thought 1450–1700, ed. J. H.
Burns, with Mark Goldie (Cambridge: Cambridge University Press, 1991),
pp. 193–218; and J. H. M. Salmon, “Catholic Resistance Theory,
Ultramontanism and the Royalist Response, 1580–1620,” in The Cambridge
History, ed. Burns and Goldie, pp. 219–53.
76. Quoted in Carroll, “Note on Figure 7,” pp. 247, 248.
77. Christopher Goodman, How Superior Powers oght to be obeyed of their subjects
(Geneva, 1558), sig. A4r–A5v.
78. Edward Hall, Hall’s Chronicle, ed. Henry Ellis (London: J. Johnson et al.,
1809), p. 9; Holinshed’s Chronicles of England, Scotland and Ireland, vol. 3
(London: J. Johnson et al., 1807), p. 859.
79. Hall, Hall’s Chronicle, 10; Holinshed’s Chronicles, p. 860.
80. Hall, Hall’s Chronicle, 11; Holinshed’s Chronicles, p. 861. See also the Archbishop
of Canterbury’s speech justifying Richard’s deposition in Sir John Hayward’s
1599 The Life and Raigne of King Henrie IIII, ed. John J. Manning
(Camden Society, 4th series. London: Royal Historical Society, 1991),
pp. 113–15.
81. Marlowe, Edward II, 1.4.73, in Christopher Marlowe: The Complete Plays, ed.
J. B. Steane (Harmondsworth, Middlesex: Penguin, 1969; rpt. 1985). I am cur-
rently preparing an essay on Marlowe’s use of the Ancient Constitution in
Edward II.
82. Quoted in Burgess, The Politics of the Ancient Constitution, pp. 95–96.
83. Historie, sig. P2. On the Scots republican historiographic tradition, see
Norbrook, “Politics of Historiography,” pp. 85–93.
84. Kastan, “Name of King,” p. 179.
232 Peter C. Herman
87. Norbrook, “Politics of Historiography,” p. 104; Kastan, “Name of King,”

p. 175.
91. Historie, sig. O2r.
92. Historie, sig. P2v.
93. Historie, sig. O2r.
94. Historie, sig. P2r.
95. Historie, sig. P2v.
96. Rebecca W. Bushnell also notes that 4.3 “demonstrates how the rhetoric of
antithesis can slide into a language of relatives rather than absolutes”
(Tragedies of Tyrants: Political Thought and Theater in the English Renaissance
[Ithaca, NY: Cornell University Press, 1990], p. 142).
98. Historie, sig. Q6r.
99. Historie, sig. Q6r.
100. Bushnell, Tragedies of Tyrants, p. 142.
101. Kastan, “Name of King,” p. 166.
13
Arms and Laws in
Shakespeare’s Coriolanus
Rebecca Lemon
Imperial Majesty should not only be graced with arms but also
armed with laws, so that good government may prevail in time
of war and peace alike.
[Imperatoriam maiestatem non solum armis decoratam, sed etiam
legibus oportet esse armatam, ut utrumque tempus et bellorum et
pacis recte possit gubernari.]
Justinian’s Institutes (AD 530)1
The Roman definition of sovereignty as laws and arms, deceptively

simple, hinges on a complex balance between discretion on the one
hand and tyranny on the other. The Justinianic code sanctions the nec-
essary suspension of law in wartime – when a state must defend itself
with arms – but a sovereign’s failure to attend to the law otherwise
constitutes tyrannical rule. “Good government” depends on law.
This Roman maxim on laws and arms appears repeatedly in the writ-
ings of English jurists as they define sovereign power. Henry of Bracton
begins his medieval legal tract De Legibus (c.1230) by paraphrasing the
Institutes: “To rule well a king requires two things, arms and laws, that by
them both times of war and of peace may rightly be ordered. For each
stands in need of the other, that the achievement of arms be conserved
[by the laws], the laws themselves preserved by the support of arms.”2
John Fortescue reiterates Bracton’s Justinianic separation of peace from
war, law from lawlessness. In A Learned commendation of the politique
lawes of England (1573), Fortescue rehearses the opening lines of the
Institutes to delineate sovereign power: “Justinian the emperor wel and
wisely and advisedly pondering, in the beginning of the preface of his
booke saith thus. It behoveth the imperiall majesty not onely to be
guarded with armes, but also to bee armed with lawes, to the end that he
233
234 Rebecca Lemon
may bee able rightly to execute the government of bothe times, as well
of warre as of peace.”3 This Roman separation of law and war appears
again with Francis Bacon, who, in his support for King James, places par-
ticular stress on the martial half of the equation.4 Writing in The Case of
the Post-Nati (1608), Bacon notes Bracton’s debt to Justinian in delineat-
ing wartime powers: “whosoever speaks of laws, and the king’s power by
laws, and the subject’s obedience or allegiance to laws, speak but one
half of the crown. Bracton, out of Justinian, doth truly define the crown
to consist of laws and arms, power civil and martial. With the latter the
law doth not intermeddle.”5
Since the texts of Bracton and Justinian ambitiously chronicle English
and Roman law, respectively, their opening distinction between arms
and laws might be dismissed as a mere rhetorical device to justify their
tracts: these authors, after all, attempt to characterize laws as equally
vital to state protection as arms. Furthermore, the ubiquity of this dis-
tinction, to which I only gesture in the brief survey above, might suggest
its emptiness: like a proverb on a knitted pillow, the Roman definition
of sovereignty evokes merely bland agreement from its audience. Yet the
opposition of arms and laws does vital conceptual as well as rhetorical
work in carving out, however passingly, a portion of sovereignty beyond
the law. This formulation of a sovereign’s duplex powers, as explored by
Glenn Burgess, Francis Oakley, Brian Tierney, and others, at once
acknowledges the primacy of legal codes while also recognizing that sit-
uations will arise beyond the scope or even imagination of the law.6 As
Bracton puts it later in De Legibus, a “time of peace” is “used to distin-
guish things done in time of war. The distinction is between a time of
law and a time of lawlessness, for there is a time of lawlessness when vio-
lent oppressions and wrongful decisions, which cannot be resisted, are
committed.”7 Bracton thus identifies “a time of war,” namely, when the
sovereign uses arms, as also “a time of lawlessness” during which sub-
jects bow to potentially tyrannical rule. Such “violent oppressions,” he
claims, “cannot be resisted,” although his use of the passive voice leaves
ambiguous the source of tyranny, which could lie as much with criminal
subjects as with rulers. In either case, Bracton’s equation on sovereignty
firmly separates the time of arms and oppression from the time of peace
and law.
Yet despite or perhaps due to the simplicity of the formula
(sovereignty ⫽ arms ⫹ laws), the precise relation of arms and laws
remains obscure. Even as English authors paraphrase the same text of
Justinian, they offer slightly different articulations of the law–arms rela-
tion. Justinian’s phrase interpenetrates war and peace, presenting laws as
Arms and Laws in Coriolanus 235
arms (“legibus . . . armatam”) and vice versa. Yet Bracton and Fortescue
make a temporal distinction: there are times of war and times of peace.
To Bacon, in contrast, the separation seems material and spatial: sover-
eignty consists of two halves that do not “intermeddle.” What, however,
if the differentiation between such times or halves becomes difficult to
determine? Effective sovereignty as a result consists not simply in exer-
cising both laws and arms, but in deciding when and where to exercise
them, in determining, that is, how laws and arms relate to one another.
This essay seeks to explore the relationship between the arms and laws
of sovereignty by turning to Shakespeare’s Coriolanus (1608), a play
structured relentlessly around this conflicted relationship.8 Considered
in light of history, this proposition seems counterintuitive, since
Coriolanus’s Roman republic predated the Justinianic code, which
defines sovereignty in a context of imperial and monarchical rule. Yet
Shakespeare depicts Roman preoccupation with sovereign power even
within the context of a republican body politic.9 Filtering his portrait of
Rome through the actions and opinions of Coriolanus, Shakespeare
depicts how the hero, through his exceptional status as both human and
divine, Roman and Coriolanian, claims the decisionist power to deter-
mine the republic’s exercise of arms and laws. Balancing such martial
and civil power is necessary for state sovereignty in Shakespeare’s Rome.
But Coriolanus’s attempt to decide exceptions to the law, in provoking
the dissent of citizens, instead results in a clash between the forces of
arms and laws in the play. Shakespeare thus dramatizes Justinian’s
formulation of sovereignty and exposes the challenge of its simple
equation: rather than cooperating to form “good government,” martial
and civil law compete in the republic. Sovereignty in Shakespeare’s
Rome lies not in arms and laws, but instead in deciding between one
and the other.
Roman laws in Coriolanus
Coriolanus begins with violent revolt. Angry citizens mutiny against the
republic, threatening to withdraw from Rome. They storm the capitol
with “pikes” (1.1.22), bats, and clubs (55), an action that, as the Arden
editor notes, is nearly unique among early modern plays.10 This opening
violence initiates the play’s narrative arc, which traces a series of martial
events: beginning with the domestic rebellion of the plebeians, the play
then shifts to foreign war, depicting Coriolanus’s military prowess
against the Volscians, only to depict further rebellion as Coriolanus
attacks Rome with the Volscian leader Aufidius by his side. This cycle of
236 Rebecca Lemon
violence finally terminates with Coriolanus’s death at the hands of

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

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

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

He is largely indifferent to the inequities that benefit him: he is a figure
of “surplus” (1.1.44) who “pays himself” (32) while the citizens starve.
He scoffs at the masses and their proceedings, refusing to trust them, or
even to engage with them, most notably in his refusal to show his
wounds at the election ceremony for consul: “Let me o’erleap that

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

(166–68).
But however much Coriolanus’s actions might conform to the time of
arms, he refuses to follow the proper channels for garnering such “sin-
gle, supreme” power, insisting he “o’erleap that custom” (2.2.136) of dis-
playing wounds to gain the consulship. As Cicero writes, this wartime
magistrate can rule only “if the senate so decrees, for six months only.”19
By contrast, Coriolanus does not, as his mother Volumnia notes in frus-
tration, even wait for his election before making his contempt for law
evident. This lawlessness fuels the citizens’ charge against Coriolanus: as
Brutus claims, “he affects tyrannical power” (3.3.2); he has shaped him-
self “into a power tyrannical,” for which he is “a traitor to the people”
(3.3.65–66). Coriolanus favors independent action, scoffing at how
“custom” produces only an accumulation of “dust” and “error”
(2.3.116–23). “He hath,” as Sicinius and Brutus claim, “resisted law, /
And therefore law shall scorn him further trial / Than the severity of public
power” (3.1.265–67). Sicinius further terms him “traitorous innovator,”
and accuses him of “affecting one sole throne” (4.6.32). This charge of
innovator is not simply synonymous, as the Arden edition glosses it,
with “revolutionary, or rebel,” but instead with one who invests or
expands the laws, one who refuses to obey “custom” (2.3.116, 117, 141).
Given the procedural crisis sketched in the play’s first acts, Coriolanus
might be forgiven for his skeptical attitude toward such custom. Indeed,
the status of custom, or common law, is far from secure in the play.
On the one hand, the tribunes, despite their repeated defense of custom,
through their very office challenge it: in historical terms, establishing
the tribunate altered patrician custom and initiated what would
become the statute-based (rather than merely customary) Roman con-
stitution. Thus the characters who charge Coriolanus with lawlessness,
the tribunes, are themselves innovative products of a recent statute,
rather than customary representatives of the people. Yet the play, while
hinting at such legal complexities, focuses its representational energy on
the allegedly tyrannical behavior of Coriolanus, heaping the terms
“tyrant” and “traitor” on him.
Indeed, in his singularity and lawlessness, he closely fulfills the defi-
nition of a tyrant established by Shakespeare’s contemporaries, articu-
lated most lucidly by Jean Bodin in The Six Bookes of a Commonweale.
Unlike the king who “takes pleasure to see his subjects, and to be of
them oftentimes seen and heard,” instead “the [tyrant] feareth their
presence, and hideth himself from them, as from his enemies . . . the
one measureth his manners according to his lawes; the other measureth
his laws, according to his own disposition and pleasure.”20 The agonistic
relationship of the tyrant and the populace aptly parallels Coriolanus’s
attitude to Rome’s citizens – he treats them as his enemies. In deciding
to ignore the election custom, to risk his life behind the walls of
Coriolus, and to deride new laws establishing the tribunate, Coriolanus
“measureth his laws, according to his own disposition and pleasure.”
Sovereignty and the exception
Defending Rome, Coriolanus stands outside of the republic’s laws in a

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

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

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

other’s throats” (125–26). In contrast to Coriolanus’s mute and weeping
wife, Aufidius matches Coriolanus line for line and blow for blow.
Furthermore, Aufidius incorporates Coriolanus, saying “come, go in,
and take our friendly senators by the hand” (132–33) and “take / Th’one
half of my commission” (138–39). Absent from the play so far, the lan-
guage of partnership appears productively to counter the earlier dis-
courses of war and tyranny. Now, just as Roman tribunes celebrate
“th’present peace” (4.6.2), Coriolanus and Aufidius form an alliance,
increasing audience hope for a peaceful resolution.
Despite this promising coupling, in exile Coriolanus remains the sin-
gular exception, the “lonely dragon” who will, he claims, “exceed the
common” (4.1.31). Aufidius greets him as “thou noble thing,” (4.5.117),
“most absolute sir” (137), and the Volscians deem him “the rarest man
i’th’world” (163–64), “their god . . . like a thing / Made by some deity
rather than nature” (4.6.91–92). Aufidius’s soldiers “use him as the grace
before meat” (4.7.3), and “all places yield to him ere he sits down” (28).
His singularity is later deemed “witchcraft” as his “dragon-like” fighting
draws more Volscians to him. Wherever he travels, he stands out from
his peers, not only asserting his own sovereign power, vowing revenge
against those who “forsook” him (4.5.77), but also alienating Aufidius in
being overly popular with his soldiers. Despite the early and hopeful
partnership of Coriolanus with Aufidius, then, the former ascends to the
status of a rare, absolute god, a form of exceptionalism that exceeds even
his earlier status in Rome. Through his rarity, whether in arms or exile,
he threatens the customs, laws, and hierarchies of the nations at whose
threshold he stands, be it in Rome or in the Volsces.
Homo sacer
The salvation of the republic, and the temporary resolution of the con-
flict between laws and arms, finally hinges on a sacrifice. With
Coriolanus “an outcast, a banned man, tabooed, dangerous,”28 as
Agamben terms the homo sacer, he remains safe so long as he retains his
military zeal. With his concession to law over arms, however, comes his
sacrificial demise. Although Volumnia is on the front lines in cheering
her son’s feats of arms, she consistently urges him toward more politic
power. Yield, she tells him, to the election custom, and “frame” himself
to the tribunes as “hereafter theirs” (3.2.84–85) in order to gain
sovereignty. He nearly does, but cannot. These characters replay this
exchange at the play’s end, where she again, with much higher stakes,
persuades him to reconcile and “frame convenient peace” (5.3.191).

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

exile, and as personal if not Republican sovereign, threatens throughout
and capitulates to only in the end. As he admits to his mother after her
final, successful lobbying effort, “all the swords / In Italy . . . / Could not
have made this peace” (5.3.207–09). He rehearses, even if he does not
recognize, the familiar paradox about fighting for peace, and he thus
draws attention to the cycle of martial violence that he would, without
compromise, have continued. These lines aptly frame his own status.
More broadly, these lines articulate the status of the exception itself,
which is based in an equivalent paradox of suspending law in order to
sustain it. Yet Coriolanus’s demise does not resolve the play’s evident
paradoxes of war and peace, lawlessness and law, even as he sacrifices
himself for law and peace at the expense of his personal rule. Instead, his
final phrase, “lawful sword” (5.6.129), reinforces an uncomfortable
combination of arms and laws, which Rome strives but fails to reconcile.
Notes
1. Justinian’s Institutes, trans. Peter Birks and Grant McLeod, with Latin text by
Paul Kreuger (Ithaca, NY: Cornell University Press, 1987), pp. 32–33.
2. Henry Bracton, De Legibus et Consuetudinibus Angliae or On the Laws and
Customs of England, trans. Samuel E. Thorne, vol. 2 (Cambridge, MA: The
Belknap Press of Harvard University Press, 1968); Latin text, ed. George E.
Woodbine (New Haven, CT: Yale University Press, 1922), libr. 1, p. 19. Here,
Bracton cites the prologue of the Institutes.
3. Sir John Fortescue, A Learned commendation of the politique lawes of England,
trans. Robert Mulcaster (London: Richarde Tottel, 1573), p. 4v. Fortescue dis-
tinguishes between the king’s “dominium political and dominium regale,” p. 4 v.
4. In England, however, this distinction between laws and arms belies their con-
nection, under the law of arms, within the civil law’s Court of Chivalry. This
“lawe of Armes,” as Gerard Legh writes in Accedens of Armorie (1562), “is most
part directed by ye Civile lawe” (cited in G. D. Squibb, The High Court of
Chivalry: A Study of the Civil Law in England [Oxford: Oxford University Press,
1959], p. 165). The law of arms concerned legal issues ranging from prisoners
of war to treason to heraldic matters, although, as Squibb writes, the majority
of evidence concerns the last category, heraldic disputes. If most generally, the
laws of arms “not only govern the right to arms but also the manner in which
lawful arms are to be used” (p. 189), in practice, “while it is clear that the
manner in which arms are to be used in a matter of law, the records of the
Court of Chivalry throw very little light on the subject” (p. 190).
5. Francis Bacon, “The Case of the Post Nati,” in Works, ed. James Spedding,
Robert Leslie Ellis and Douglas Denon Heath, 7 vols. (London: Longman et al.,
1857–59), p. 229. Bacon’s evidence is the following passage in Bracton, De
Legibus, p. 309.
6. Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven, CT:
Yale University Press, 1996); Francis Oakely, “Jacobean Political Theology: The
Ordinary and Absolute Powers of the King,” Journal of the History of Ideas 29:3
(1968), 323–46; Brian Tierney, “Bracton on Government,” Speculum 38 (1963),
295–317.
7. Bracton, De Legibus, vol. 3, p. 213.
8. In addition to the essays by Adelman, Cavell, and Riss discussed below, the
following studies have been helpful to me in thinking through the issues of
this essay: Andrew Gurr, “Coriolanus and the Body Politic,” Shakespeare Survey
28 (1975), 63–69; Coppélia Kahn, Roman Shakespeare: Warriors, Wounds, and
Women (New York: Routledge, 1997), pp. 144–59; Thomas Sorge, “The Failure
of Orthodoxy in Coriolanus,” Shakespeare Reproduced: The Text in History and
Ideology, ed. Jean E. Howard and Marion F. O’Connor (London: Methuen,
1987), pp. 225–41; Zvi Jagendorf, “Coriolanus: Body Politic and Private Parts,”
Shakespeare Quarterly 41:4 (1990), 455–69.
9. Indeed, Jonathan Goldberg, James I and the Politics of Literature (Stanford, CA:
Stanford University Press, 1989), assesses the play as one “devoted to the
absolutist project” (p. 187).
10. Although Romeo and Juliet opens with a brawl, only Jack Straw (1593) and
Coriolanus open with a staged act of mutiny. See Philip Brockbank, ed.,
Coriolanus, The Arden Shakespeare (1976; rpt. London: Methuen, 1984),
p. 95. All further citations refer to this edition. I am grateful to Karen
Cunningham in helping me to refine this point.
11. On the initiation of Roman law with the Twelve Tables, see H. F. Jolowicz and
B. Nicholas, Historical Introduction to the Study of Roman Law (Cambridge:
Cambridge University Press, 1939); B. Nicholas, An Introduction to Roman
Law, 3rd ed. (Oxford: Oxford University Press, 1988); Peter Stein, Roman Law
in European History (Cambridge: Cambridge University Press, 1999).
12. Plutarch, “The Life of Caius Martius Coriolanus,” in Lives of Noble Grecians
and Romanes, trans. Thomas North (1579). Excerpted in Brockbank, ed.,
Coriolanus, p. 335.
13. Janet Adelman, Suffocating Mothers: Fantasies of Maternal Origin in
Shakespeare’s Plays, “Hamlet” to “The Tempest” (New York: Routledge, 1992),
p. 149.
14. See Arthur Riss, “The Belly Politic,” English Literary Renaissance 59:1 (1992),
53–75, whose excellent essay explores the relationship between language of
the body and body politic in the play: “Coriolanus falls because he asserts
himself as a private, absolutely enclosed, literal ‘body’ in a society that man-
dates he embrace an ideology of the body politic” (54).
15. Stanley Cavell, Disowning Knowledge in Six Plays of Shakespeare (Cambridge:
Cambridge University Press, 1987), pp. 143–78, 167.
16. Cicero, De Legibus, Book 3, trans. C. D. Yonge, in The Library of Original
Sources, ed. Oliver J. Thatcher (New York: University Research Extension Co.,
1907), vol. 3: The Roman World, p. 225.
17. Cicero, De Legibus, p. 226.
20. Jean Bodin, The Six Bookes of a Commonweale, trans. Richard Knolles
(London, 1606), p. 212. Kenneth Muir, “The Background of Coriolanus,”
Shakespeare Quarterly 10 (1959), 137–46, notes the resonance of Shakespeare’s
play with Jean Bodin’s critique of democracy.
248 Rebecca Lemon
21. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty,
trans. George Schwab (Cambridge: MIT Press, 1985), p. 21. For a powerful
recent critique of Schmitt, which recenters the role of the aesthetic in the
political by challenging Schmitt’s readings of Leviathan and Hamlet, see
Victoria Kahn, “Hamlet or Hecuba: Carl Schmitt’s Decision,” Representations
83 (Summer 2003), 67–96, 70. There is an impressive bibliography of criti-
cism on Schmitt, much of which Kahn references. In addition to Kahn, criti-
cism that has especially influenced my own includes Giorgio Agamben,
Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen
(Stanford, CA: Stanford University Press, 1998); and Samuel Weber, “Taking
Exception to Decision: Walter Benjamin and Carl Schmitt,” Diacritics 22:3/4
(1992), 5–18.
22. Weber, “Taking Exception to Decision,” p. 15.
23. Cicero, De re publica, trans. C. D. Yonge, in The Library of Original Sources,
pp. 232–33.
24. For the term “grotesque,” see Adelman, Suffocating, p. 149, and Jagendorf,
“Body Politic,” 458.
25. Agamben, Homo Sacer, p. 18.
26. Agamben, Homo Sacer, pp. 28–29.
27. Riss, “The Belly Politic,” 68.
28. Agamben, Homo Sacer, p. 79.
14
Measure for Measure and
the Law of Nature
Elizabeth Hanson
In a famously difficult passage from the first act of Measure for Measure
(1604), Claudio, who is being led away to prison for the crime of getting
his betrothed with child, responds to Lucio’s query “Whence comes this
restraint?” with a witty paradox:
From too much liberty, my Lucio. Liberty,

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

violence.2 But the doubling which forces us to stumble over the
metaphor’s precise application to Claudio’s crime also seems to insist on
what the libertine Lucio assumes and Claudio’s response would deny: that
the natural transgression and the subsequent juridical restraint are logi-
cally two distinct events, that the force which drives the rat to his death is
not the same as the appetite which led him to the bane in the first place.
Or to put the point more explicitly, the awkwardness of the metaphor
introduces an undecidability with respect to the status of the law which is
being brought to bear on Claudio at this moment, the extent to which
it is and is not congruent with our ratlike “natures.”
“Nature” and its derivatives occur fourteen times in Measure for
Measure. Sometimes the word refers simply to the quality of a thing, as in
Escalus’s comment “a power I have, but of what strength and nature / I am
not yet instructed” (1.1.79–80), and at others to the ethically normative,
as when the Duke says that Marianna’s brother was in “his love toward
her ever most kind and natural” (3.1.220). However, unlike in King Lear,
where Shakespeare demands that his audience confront the contradic-
tions which converge on what Raymond Williams describes as “perhaps
the most complex word in the language,” in Measure for Measure
Shakespeare seems to accent the meaning Claudio attaches to it: a
condition of embodiment which manifests as ineluctable drives, the
“natural guiltiness such as is [Claudio’s]” (2.2.140) which Isabella asks
Angelo to detect in himself, or the “natural edge” which Lucio asserts
that Angelo blunts with “study and fast” so that he never feels “the wan-
ton stings and motions of the sense” (1.4.59–61).3 “Nature” is thus
semantically linked with “blood,” which occurs six times, all but once
with reference to the puritanical deputy who “scarce confesses / That
his blood flows; or that his appetite / Is more to bread than stone”
(1.3.51–53), and always signifying a sexual compulsion, a “heat” (5.1.470),
or “prompture” (2.4.177), or “resolute acting” (2.1.12) which carries
Angelo to his disgrace but which is nevertheless as universal as eating
bread or making water. “Nature” in Measure for Measure is the opposite
term to “law”: that on which “strict statutes and biting laws” (1.3.19) are
brought to bear but also, as the bawd Pompey’s query as to whether
Escalus “mean[s] to geld and splay all the youth of the city” (2.1.227–28)
implies, a contrary and possibly greater commandment. At the same
time, as Claudio’s ratsbane metaphor suggests and the conclusion which
substitutes weddings for executions (and other forms of “strict restraint”
[1.4.4] such as the rule of the Poor Clares to which Claudio’s sister,
Isabella, wishes to submit) also implies, the play may show us that such
The Law of Nature 251
opposition is more apparent than real, that “nature” is the means

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

embeds general ideas in their particular enactments with such complex-
ity that his taste for embeddedness itself might be seen as an implicit cri-
tique of methodical philosophy and pure science, a critique that arises
just before those discourses get started.”8 Instead, I want to suggest that
we can detect in the awkwardness of Claudio’s metaphor and in the
undecidability of the play’s interpretive dilemmas, all of which turn on
the conflicting claims of social distinction (as between the ruler and his
subjects) and universal sexuality, a demonstration of the resources and
contradictions latent in the concept of a “law” of “nature” which
offered a pattern of political sovereignty even as it demarcated a domain
beyond its reach.
Writing toward the end of the seventeenth century, Robert Boyle asserts
in A Free Inquiry into the Vulgarly Received Notion of Nature (1686) that
nature is
the aggregate of the bodies that make up the world, framed as it is,
considered as a principle by virtue whereof they act and suffer accord-
ing to the laws of motion prescribed by the author of things. Which
description may be thus paraphrased: that nature, in general, is the
result of the universal matter or corporeal substance of the universe,
considered as it is contrived into the present structure and constitu-
tion of the world, whereby all the bodies that compose it are enabled
to act upon and fitted to suffer from, one another, according to the
settled laws of motion.9
The account of nature Boyle offers here, as matter exerting force upon
itself according to principles established by God at the creation, is largely
consistent with Cartesian and Newtonian concepts of a physical world
governed by divinely instituted laws of motion. Boyle advances it to
counter what he calls the “vulgarly received notion of nature” as “a god-
dess or at least semi-deity,” a force operating in and through all creatures
and elements determining what they must do and become. He objects to
this notion on religious grounds, noting that “looking upon merely cor-
poreal and oftentimes inanimate things as if they were endowed with
life, sense and understanding . . . ascribes to nature and some other
beings (whether real or imaginary) things that belong but to God,” and
he lays the blame for its promulgation on Aristotle and his followers.10
Boyle’s account of nature is useful as an indication both of what the

“law of nature” did not yet mean in 1604 and also of its destination as a
foundational structure of early modern thought. In particular, Boyle’s
formulation shows the way in which in the late seventeenth-century
scientific notion of laws of nature, two intellectual traditions, both orig-
inating in the late middle ages, converge: the Judeo-Christian concept of
a legislating God, advanced to supplement or, in some cases, counter
Aristotelian ideas of the immanence of natural forms, and the idea of
quantifiable regularities in nature whose designation as “laws” derived
from a lexical exchangeability leading to semantic confusion of regula
(or “measure”) and lex (or law).11 As the passage from Boyle’s treatise
makes clear, in the late seventeenth century these traditions were
appropriated as mutually sustaining theological and natural philosophical
arguments according to which all agency is allocated to an omnipotent
God at the moment of creation (although Boyle is careful to shore up
this omnipotence by preserving God’s ability to override his previous
decrees through the performance of miracles) and nature is construed as
a kind of machine, “a rare clock, such as may be that at Strasbourg,” or “a
great . . . and pregnant automaton.”12 Whatever the motivations for this
settlement (Boyle’s theological and scientific commitments seem equally
strong), its effect is to imagine nature as a domain without agency or any
other characteristic of subjectivity. Thus, at the outset of the same treatise
Boyle makes the apparently contradictory assertion that
to say that the nature of this or that body is but the law of God pre-
scribed to it, is but an improper and figurative expression . . . [for] to
speak properly, a law being but a notional rule of acting according to
the declared will of a superior, it is plain that nothing but an intellectual
being can be properly capable of receiving and acting by a law.13
The apparent inconsistency in Boyle’s treatise, which explicates laws of

motion even as it denies laws of nature, arises from the extreme asym-
metry with respect to agency which Boyle insists on in the relationship
between the Creator and his material creation. Properties of nature are
laws insofar as God is construed (it would seem, literally) as a law-giver,
but cannot be insofar as nature is understood (if metaphorically then
innocuously so) as a machine.
For an example of the “vulgarly received notion of nature” which he
opposes, Boyle need have looked no further than The Winter’s Tale
(1610–11), where Paulina speaks to Hermione’s jailer of the newborn
Perdita: “This child was prisoner to the womb, and is / By law and
process of great nature, thence / Free’d and enfranchis’d.”14 Plainly,

from Boyle’s perspective such talk is theologically and scientifically
problematic. Not only does Shakespeare let Paulina attribute to “great
nature” (the “thrifty goddess” [1.1.38] to whom the Duke refers in
Measure for Measure) “things that,” Boyle argued, “belong but to God,”
but in developing the personification Shakespeare clearly displaces any
consideration of the specific mechanisms by which childbirth might
occur.15 Thus, although on lexical grounds we can ascribe some notion
of a law of nature to Shakespeare, we must concede that his under-
standing of nature smacks of the Aristotelianism against which a scien-
tific law of nature was articulated later in the century. At the same time,
however, Paulina’s speech actually emphasizes Boyle’s observation that
the law of nature is, precisely, a figurative expression, yoking nature’s
inexorable processes to the forms of civil agency and authority. In other
words, like all metaphors, Paulina’s figure of speech implies the differ-
ence between tenor and vehicle, a point that is underscored by the con-
tent of this particular instance in which the law of nature simply thwarts
the commands of the king. Thus, even as Paulina personifies nature she
also demarcates it as otherness, that which is beyond the structures of
human authority and obedience.
There are two points I would make about how this passage might sit-
uate Shakespeare in relation to Boyle, the first of which has to do with
the simple matter of chronology. While Boyle’s position clearly seems
more modern than Shakespeare’s, in demarcating nature as a domain
deaf to any law but its own inexorable physical processes, the play-
wright’s figurative expression evinces thinking which is arguably pre-
liminary to the virtuoso’s experimental practice. It is worth noting that
in Cymbeline (1609–10) the apparition of Posthumus’s mother refers to
her baby abiding in her womb as “attending Nature’s law,” apparently
referring to the nine-month human gestation, thereby associating the
same natural process which concerns Paulina with measurable regularity
and Shakespeare’s use of the phrase “Nature’s law” with the natural
philosophical tradition which defines nature in those terms.16 Lest I
seem to construe Shakespeare as an original natural philosopher, how-
ever, I should also note that the difference between nature and intellec-
tual beings, which exposes the law of nature as a figure of speech, was
hardly a novel idea in Shakespeare’s day. In fact, it had been acknowl-
edged in the thirteenth century by Aquinas, who, according to Edgar
Zilsel, accommodated it by arguing that “what promulgation is to man
‘the impression of an inward active principle is to natural things,’ ” the
intellectual habit of analogy permitting him to have his Aristotelian
immanence and his Judaeo-Christian law-giving God at the same time.17

And in 1593 Richard Hooker had recognized the same problem in Of the
Laws of Ecclesiastical Polity, noting that
They . . . apply the name of Law unto that only rule of working which
superior authority imposeth; whereas we somewhat more enlarging
the sense thereof term any kind of rule or canon, whereby actions are
framed, a law. . . . Wherefore to come to the law of nature: albeit
thereby we sometimes mean that manner of working which God hath
set for each created thing to keep; yet forasmuch as those things are
termed most properly natural agents which keep the law of their kind
unwittingly, as the heavens and elements of the world, which can do
no otherwise than they do; and forasmuch as we give unto intellectual
natures the name of Voluntary agents, that so we may distinguish
them from the other; expedient it will be that we sever the law of
nature observed by the one from that which the other is tied unto.18
Here, Aquinas’s analogy has become something like a jurisdictional

distinction; the law of nature belongs to the category “law” but operates
on a different constituency according to different principles than does
the law affecting human beings. Long before Boyle, then, not only is
nature imagined as law driven, but this imagining seems to entail the
recognition of the difference between the natural and the human
worlds. What changes is the intellectual framework within which this
difference signifies, so that what for Aquinas is a simple matter of analogy,
for Boyle has become a dangerous confusion.
Boyle’s anxiety that the figurative might be taken literally, a consider-
ation that is obviously irrelevant to Aquinas, brings me to the second
point I would make about Shakespeare’s formulation in relation to later
seventeenth-century natural philosophy. In Paulina’s metaphor
Shakespeare makes explicit what I would suggest Boyle’s formulation
largely suppresses: the political significance of a law of nature. The
attention paid by natural philosophers from Aquinas onward to the
problem of what Hooker calls “natural agents” indicates an intrinsic
instability in the idea of a law of nature, a tendency in its articulations
for the distinction between subject and object to collapse and require
reassertion. Boyle, as we have seen, performs this last operation in a par-
ticularly stark fashion in his twin depictions of the creating, miracle-
performing God and clockwork nature, eliding, for all but the moment
when he asserts the metaphorical character of the law of nature, the
position of the “intellectual natures,” agents and yet also creatures, who
act according to civil law. Although it has been argued that the
mechanists’ asymmetrical assignments of agency reflect an absolutist
politics, it seems as likely that for Boyle the reverse was true, that his
insistence that the law of nature is but an “improper and figurative
expression” implies that the politics underpinning civil law which oper-
ates on and through “intellectual beings” should be wholly different
from those obtaining between the omnipotent creator and his mechan-
ical creation, that the civil law should be a meshing of a commanding
agency and an obeying one.19 Man, as much as God, should be clearly
distinguished from nature. But this status is to be negotiated, not in the
political realm where the struggle for power, and hence the arbitrary and
temporary assignment of subject- and object-status, might be visible,
but in the laboratory where the virtuoso (“intellectual being” that he is)
traces in the mechanisms of nature the decrees of the Creator.20
Paulina’s invocation of “Great Nature” differs from Boyle’s, then, not
so much in its political values as in the form of their social instantiation
it implies. Confronting the tyranny of Leontes, Paulina makes “Great
Nature” the ground of explicit resistance. In this respect the law she
invokes is not only the law of nature (which has to do with the proper-
ties of physical creation) but also natural law, the principle invoked by
Renaissance resistance theorists which limited the subject’s obligation to
obey a ruler in accordance with divine law.21 But that law manifests itself
here not through the subject’s conscious resistance but through the
unstoppable, corporeal event of childbirth, which acquires its “legal”
character only through Paulina’s “improper and figurative expression.”
Rather than asserting the subject-status of the subjugated, Paulina’s
metaphor deconstructs the extreme subject and object assignments
which underpin absolutism; her law of nature mimics the monarchic
law which it also trumps, using the forms of monarchic law (prisons and
processes) to demarcate a domain where the writs of human rulers do
not run and human subjects could not obey them even if they wanted
to. Where Boyle uses the “laws of motion” in the service of an implicit
political settlement, Paulina’s metaphor can effect only an unsettlement,
parodying Leontes’s despotism in a “law” from which volition has been
evacuated, a “law” which nevertheless will be recuperated as a higher,
providential justice.
Of course, Shakespeare is writing a play about a tyrannical king and
Boyle a treatise in natural philosophy, and this difference may account
both for Shakespeare’s greater political explicitness and for his subversive
(as opposed to polemical) deployment of the law of nature. However, the
writings of Shakespeare’s contemporary and Boyle’s cynosure, Francis
Bacon, suggest that these qualities in fact bespeak a historically specific

perception on the part of the earlier writers. For Bacon, as for Hooker and
Boyle, the concept of a law of nature is inseparable from that of the leg-
islating God. The year before Measure for Measure was first performed, he
wrote a “Confession of Faith” in which he affirms his belief that God
created heaven and earth, and all their armies and generations, and
gave unto them constant and everlasting laws, which we call Nature,
which is nothing but the laws of creation; which laws nevertheless
have had three changes or times, and are to have a fourth and last.
The first, when the matter of heaven and earth was created without
forms: the second, the interim of every day’s work: the third by the
curse, which notwithstanding was no new creation, but a privation of
part of that virtue of the first creation: and the last, at the end of the
world, the manner of which is not yet revealed. So as the laws of
Nature, which now remain and govern inviolably till the end of the
world, began to be in force when God first rested from his works and
ceased to create; but received a revocation in part by the curse, since
which time they change not.22
While Bacon and Boyle are clearly working in a common theological tra-
dition, however, Bacon’s emphasis here is subtly different from that of his
heir. Where Boyle insists that God “is most absolute and free,” and thus
potentially able to override his previous decrees at any time through the
performance of miracles, Bacon is careful to specify the times of divine
legislation, thereby determining a span during which the laws themselves
must stand in for the legislator. God’s creation becomes, at least for the
interval of fallen human life, an autonomous domain of predictable regu-
larities, suitable for methodical investigation. Bacon might thus be said to
delimit the space of experimental inquiry which Boyle fully inhabited, a
space in which authority could accrue to intellectual beings.
Another (albeit rather circular) explanation for Bacon’s attribution of
such temporally limited autonomy to nature is his residual
Aristotelianism, evident in another short treatise from 1603, A Brief
Discourse Touching the Happy Union of the Kingdoms of England and
Scotland, where Bacon writes of
the fundamental law of nature, whereby all things do subsist and are
preserved; which is, That every thing in nature, although it have his
private and particular affection and appetite, and doth follow and
pursue the same in small moments . . . when there is question or case
for sustaining of the more general, they forsake their own particular-
ities and proprieties, and attend and conspire to uphold the public.
So we see that iron in small quantity will ascend and approach to
the loadstone upon a particular sympathy: but if it be any quantity of
moment, it leaveth his appetite of amity with the loadstone, and like
a good patriot falleth to the earth, which is the place and region of
massy bodies. 23
Such an account of the laws of nature seems to display the tendency

which Boyle deplored to attribute agency to natural bodies at the
expense of God the Creator. However, what Bacon offers here is in fact a
political allegory directed to the new king, instructing him to subordi-
nate his private impulses to the needs of the commonwealth. The pas-
sage does not so much betray a naively Aristotelian view of nature as
appropriate the semiautonomy of nature implicit in such a view as the
vehicle for a political meaning which has to do with the direction and con-
tainment of the king’s actions. Although unusual in its self-allegorizing,
this invocation of the law of nature is an example of a tendency, evident
throughout Bacon’s writing, for nature to function as a field in and
through which agency, human and divine, can be (sometimes rather
stealthily) contained and regulated.
In the Brief Discourse, Bacon makes explicit the political significance of
his program to reform natural philosophy and make it a privileged intel-
lectual endeavor, informing his new king that “there is a greate affinity
and consent between the rules of nature and the true rules of policy: the
one being nothing else but an order in the government of the world, and
the other an order in the government of an estate.”24 At first glance, this
formulation, which aligns the world God made with the “estate” James
rules, might seem to compare the king to God, and thus to align natural
philosophy with an absolutist politics. But the passage actually effects sev-
eral subtle displacements already evident in the first analogy Bacon draws
between the “rules of nature,” and – not as we might expect, the king’s
proclamations – but “the true rules of policy,” that is, the preexisting but
as yet unknown best methods of government. The king is in fact cast as a
discoverer rather than a promulgator, a point Bacon goes on to amplify:
And therefore the education and erudition of the kings of Persia was
in . . . the contemplations of nature and an application thereof to a
sense politic; taking the fundamental laws of nature, with the
branches and passages of them, as an original and first model,
whence to take and describe a copy and imitation for government.25
Of course, characterizing the king as a student of policy merely reiterates

a picture which James already held of himself. But Bacon also enacts
another displacement here, insisting that policy, the topic of the king’s
studies, is derivative of a logically prior field, the study of nature, whose
adepts it turns out are not in the first instance kings but “instructors” of
kings whose precise identity Bacon elides, referring to them as the
“aforesaid instructors” at their first mention.26 Moreover, in the educa-
tional program they supervise, it is impossible to distinguish the discov-
ery of the laws of nature from subjection to them. Thus, the Persian
kings contemplate “the examples of the celestial bodies, the sun, the
moon, and the rest, which have great glory and veneration, but no rest
or intermission,” so that they can perform “likewise the true manner of
the motions of government, which though they ought to be swift and
rapid in respect of dispatch and the occasions, yet are they to be con-
stant and regular, without wavering or confusion.”27 Kings do not move
planets; they are planets and, like them, subject to the laws of nature.
And yet, as natural philosophers, kings can also learn and manipulate the
laws to which they are to submit. In short, Bacon substitutes an episte-
mological privilege for an ontological one; the king realizes his “intellec-
tual being” not through exercising a power analogous to God’s but
through knowing himself and the rest of the creation as “natural agents.”
II
Like James and the Persian kings, Duke Vincentio is a student of the
“properties of government” (1.1.3), as he announces in the first lines of
a play whose action will unfold what it means to acquire and wield such
knowledge. If we take Angelo’s wondering acknowledgment to the Duke
that “your Grace like power divine, / Hath looked upon my passes”
(5.1.367–68) as a valid assessment of the Duke’s final position (and this
is a big “if”), then what such knowledge means is not an exchange of
epistemological for ontological privileges, as Bacon suggests, but an
identification of them, the establishment of the Duke’s political
supremacy over his people as an ontological difference through a spec-
tacular demonstration of his knowledge of their true natures. At the out-
set of the play, however, the connection between knowledge of the
properties of government and the ruler’s supremacy is complex, insofar
as the Duke’s knowledge does not absolutely distinguish him from his
subjects. In fact, it is unnecessary for the Duke to unfold his knowledge
to his interlocutors, “Since,” as he informs Escalus, “I am put to know
that your own science / Exceeds in that, the lists of all advice / My
strength can give you” (1.1.5–7). Not only does this experienced coun-
selor know what the ruler does, but so it would seem does the untested
Angelo to whom the Duke declares, “But I do bend my speech / To one
that can my part in him advertise” (1.1.40–41). As numerous readers and
audiences have noticed, if the Duke’s confidence in his counselors is jus-
tified, then he potentially will have a political crisis on his hands, his
absence having demonstrated that he can be replaced, that the merely
qualified is as good as the anointed. However, this crisis is averted in the
final revelation that, under the Duke’s secret gaze, Angelo sought
Isabella’s sexual favors in exchange for her brother’s life. Moreover, in a
subtle move here at the outset, the Duke grounds Angelo’s qualifications
not in training but in “nature,” the gifts of “the thrifty goddess [who]
determines / Herself the glory of a creditor, / Both thanks and use”
(1.1.38–40), suggesting that if the deputy is found wanting it will not be
because of his inexperience, which could be remedied through more
knowledge, but rather from “his private and particular affection and
appetite” in Bacon’s phrase, that is, from an ontological condition. This
maneuver not only ensures that any distinction which Angelo’s failure
produces will be of the right kind, shoring up the king’s supremacy, but
serves to proleptically align Angelo with Claudio, who in the following
scene will ascribe his downfall to his ravining, ratlike nature.
If knowledge of the properties of government blurs the difference
between the Duke and his counselors, however, it also serves to distin-
guish the ruling group from those on whom they are to bring state
power to bear. In Measure for Measure, Hooker’s distinction between
“intellectual natures” (which, it will be remembered, he also calls “vol-
untary agents”) and “natural agents” is a thoroughly political one, with
Vienna’s criminal inhabitants all lining up on the side of the natural and
involuntary. Not only does Claudio construe himself as a compulsive
animal and Pompey suggest neutering the whole city as the only solu-
tion to its vices, but Barnardine wallows drunkenly in his cell, “careless,
reckless, and fearless of what’s past, present, or to come” (4.2.141–42),
and Lucio celebrates Juliet’s pregnancy as a glorious agricultural
inevitability, a “blossoming time / That from the seedness the bare
fallow brings / To teeming foison” (1.4.41–43), the product of an activ-
ity which will end only when “eating and drinking be put down”
(3.2.99). For Angelo, whose severity as an intellectual being had seemed
to the other men to place him outside of nature altogether, as “not made
by man and woman, after this downright way of creation” (3.2.100–01),
the advent of his lust for Isabella seems to completely reclassify him as a
natural agent. Lacking any ability either to comprehend or to control
himself, he slips into wondering interrogatories, “What dost thou, or

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

to the ill-advisedness of harshly prosecuting the well-intentioned and
gentlemanly Claudio. But while this judgment is founded on the recog-
nition of the truth of Isabella’s argument about the universality of “nat-
ural guiltiness,” he himself never crosses the line separating intellectual
natures from natural agents. Thus while Angelo brings scandal on the
law by revealing that the magistrate is not just equivalent to but worse
than the malefactor he prosecutes, Escalus embodies the civil law in its
most legitimate form, a position which is underscored by the fact that
the malefactors he handles are the usual, not to say natural, suspects
such as the bawd Pompey. In this capacity what Escalus manages to
demonstrate is that the civil law is both arbitrary and impotent, as when
he makes the mistake of catechizing Pompey:
ESCALUS: How would you live, Pompey? By being a bawd?

What do you think of the trade, Pompey? Is it a lawful
trade?
POMPEY: If the law would allow it, sir.
ESCALUS: But the law will not allow it, Pompey; nor it shall not be
allowed in Vienna.
POMPEY: Does your worship mean to geld and splay all the youth
of the city?
ESCALUS: No, Pompey.
POMPEY: Truly sir, in my poor opinion, they will to’t then.
(2.1.221–28)
As will Pompey, who exits answering Escalus’s threat of a whipping with

a saucy couplet – “Whip me? No, no, let carman whip his jade; / The
valiant heart’s not whipt out of his trade” (2.1.252–53) – thus aligning
himself with the “sanctimonious pirate” (1.2.7) who erased the “thou
shalt not steal” (1.2.10) from the Ten Commandments because he
would not be commanded from his “function” (1.2.13).
The scandal of the hypocritical deputy is obviously a benefit to the
Duke, exposing Angelo’s moral exceptionalism as a lie and reframing the
Duke’s authority as omniscience with respect to “the nature of our people,”
now understood in a rather different sense. But the possibly greater scan-
dal of juridical impotence over which Escalus benignly presides also
plays into the Duke’s hands. In the conclusion, Escalus’s competence and
probity are exposed as a form of stupidity as he is set up by the Duke to
interrogate the “slanderers” Isabella and Marianna and obediently
responds, “My lord, we’ll do it throughly” (5.1.258). Thus the Duke’s
final drama also demonstrates that he knows the secrets of his people in
a way that Escalus, and the civil law he administers, cannot hope to. The
law of nature operating on and through the bodies of his subjects may
mock “strict statutes and most biting laws” but it also permits the ruler to
recuperate their subjection to this power as his knowledge. In this sense
we can see in Measure for Measure the usefulness of the idea of a law of
nature to the kind of absolutist politics favored by Shakespeare’s new
king and patron. But the play ends not with the Duke’s revelation of his
knowledge of his subjects’ secrets but rather in his proposal to Isabella, a
gesture that may simply be formal confirmation of his supremacy and
her subjection to the nature which she as much as Angelo would deny,
but which is much more compellingly read as the revelation that the
Duke too is Nature’s subject. While this point may be theologically unde-
niable, its effect is to shatter the supremacy which the rest of the act has
established. Unanswered and uncommented upon within the play, not
exactly confirming yet resonating dismayingly with Friar Thomas’s
insinuations and Lucio’s slanders regarding the Duke’s sexual activities,
the proposal produces radical ambiguity, translating the Duke from the
absolutist subject of knowledge to an object of inquiry. But this inquiry
cannot be conducted from any of the political positions specified within
the play, falling instead to the audience, who, I would suggest, are in
rehearsal for the work they will perform later in the century as the polite
witnesses to Boyle’s experiments.29 In 1604, however, the law of nature is
a politically indigestible concept, modeling a sway beyond that of civil
law, but one that cannot be wielded from any representable position.
Notes
1. William Shakespeare, Measure for Measure, 1.2.114–22, ed. J. W. Lever (1966;
rpt. London and New York: Routledge 1988). Subsequent references are to this
edition.
2. See Stephen Greenblatt, Shakespearean Negotiations (Berkeley, CA: University
of California Press, 1988), pp. 129–42; Steven Mullaney, The Place of the Stage
(Chicago, IL: University of Chicago Press, 1988), pp. 88–115; Elizabeth
Hanson, Discovering the Subject in Renaissance England (Cambridge: Cambridge
3. Raymond Williams, Keywords (London: Fontana Press, 1976), p. 219.
4. For interpretations of the play in light of legal issues in Shakespeare’s England
see Louise Halper, “Measure for Measure, Law, Prerogative, Subversion,” Cardozo
Studies in Law and Literature 13 (2001), 221–64; Stephen Cohen, “From Mistress
to Master: Political Transition and Formal Conflict in Measure for Measure,”
Criticism 41 (1999), 431–64; Deborah Shuger, Political Theologies in Shakespeare’s
England (New York: Palgrave Macmillan, 2001), pp. 9–38; Leah S. Marcus,
Puzzling Shakespeare: Local Reading and Its Discontents (Berkeley, CA:

University of California Press, 1988), pp. 160–211.
5. Martin Ingram, Church Courts, Sex, and Marriage in England,1570–1640
(Cambridge: Cambridge University Press, 1987), pp. 219–37. See also Marcus,
Puzzling Shakespeare, pp. 171–76, and Shuger, Political Theologies, pp. 30–33,
for contemporary Puritanical efforts to criminalize sexual misconduct.
6. Isaac Newton, Philosophiae Naturalis Principia Mathematica, Praefatio, Opera
Omnia, II, p. ix. Cited in Francis Oakley, “Christian Theology and Newtonian
Science,” Church History 30 (1961), 436.
7. Bruno Latour, We Have Never Been Modern, trans. Catherine Porter
(Cambridge, MA: Harvard University Press, 1993), pp. 13–48.
8. Lars Engle, “Measure for Measure and Modernity: The Problem of the Skeptic’s
Authority,” in Shakespeare and Modernity, ed. Hugh Grady (London and New
York: Routledge, 2000), p. 85.
9. Robert Boyle, A Free Inquiry into the Vulgarly Received Notion of Nature, ed.
Edward B. Davis and Michael Hunter (Cambridge: Cambridge University
Press, 1996), p. 36.
10. Boyle, A Free Inquiry, p. 41.
11. On the Judeo-Christian tradition of the legislating God and its challenge to
Greek ideas of immanent laws of nature see Oakley, “Christian Theology.”
On the emergence of the term “law” to describe physical regularities in
nature see Jane E. Ruby, “The Origins of Scientific ‘Law,’ ” Journal of the
History of Ideas 47 (1986), 341–59. Both these essays respond to Edgar Zilsel,
“The Genesis of the Concept of Physical Law,” Philosophical Review 51 (1942),
245–79. See also J. E. McGuire, “Boyle’s Conception of Nature,” Journal of the
History of Ideas 33 (1972), 523–41; Jon Miller, “Spinoza and the Concept of a
Law of Nature,” History of Philosophy Quarterly 20 (2003), 257–76; Friedel
Weinert, “Laws of Nature, Laws of Science,” in Laws of Nature: Essays on the
Philosophical and Historical Dimensions (Berlin and New York: Walter de
Gruyter, 1995), pp. 3–63.
12. Boyle, A Free Inquiry, pp. 13, 40.
14. William Shakespeare, The Winter’s Tale, 2.2.59–61, ed. J. H. P. Pafford (1963;
rpt. London and New York: Routledge, 1991).
16. William Shakespeare, Cymbeline, 5.4.38, ed. J. M. Nosworthy (1955; rpt.
London and New York: Routledge, 1988).
17. Thomas Aquinas, Summa Theologica, II, 1qu. 94, art. 2, cited in Zilsel,
“Genesis of the Concept,” 257.
18. Richard Hooker, Of the Laws of Ecclesiastical Polity, ed. Christopher Morris,
vol. 1 (London: J. M. Dent and Sons, 1963), pp. 154–55.
19. See Zilsel, “Genesis of the Concept,” for the connection between absolutism
and mechanism.
20. On the political significance of Boyle’s experimental practice see Steven
Shapin and Simon Schaffer, Leviathan and the Air-Pump (Princeton, NJ:
Princeton University Press, 1985), and Latour’s commentary on it in We Have
Never Been Modern.
21. On the distinction between the law of nature and natural law see Zilsel,
“Genesis of the Concept,” 245–46. The first chapter of John Ponet’s A Short
Treatise of Politike Power (1556), however, clearly demonstrates the conceptual

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

of heiresses, 11–12, 92–94 A Brief Discourse Touching the Happy
Absolutism Union of the Kingdoms of England
see Monarchy and Scotland, 257–58
Action, “three branches” of, 14 The Case of the Post-Nati, 234,
in Hales v. Petit, 189 246n.5
in Hamlet, 198 “A Confession of Faith,” 257
Ad Herennium, 22, 29, 35n.4 Essays or Counsels, Civill and Morall,
Adelman, Janet, 239, 247n.13 54n.10: “On Deformity,” 52;
Agamben, Giorgio, 243, 248n.21 “On Revenge,” 19n.32, 39
Alexander, Peter, 162n.1 Letters and Life of, 54n.3
Alien statute, the, 12, 118 Major Works, 256n.22
and Shylock, 122–23 letter to James VI and I on torture,
Allen, Carlton K., 111, 125n.7 39
Altman, Joel B., 16n.4, 35n.10, on exempla, 30, 37n.49
36n.39, 139n.11, 141n.26 as head of Chancery court, 52
Ambiguity, 5, 263 on natural law, 15
Anachronism, 7, 128 personal involvement with torture,
Anderson, Linda, 57n.60 39–43
Andrews, Mark Edwin, 110, 124n.4 on “wilde justice,” 19n.32
Anglin, Jay P., 55n.10 Baker, Sir John, 17n.14, 37n.49, 65,
Apthonius of Tyre, 22 70n.9, 71n.14, 126n.27, 141n.18,
Apthonium Progymnasmata, 35n.12 164n.32, n.37, 205n.3
Aquinas, Thomas Baldwin, T(homas) W(hitfield),
Summa Theologiae, 89n.9 35n.10, 56n.32
on the law of nature, 75, 254–55 Ballads, 9
Archer, John M., 88n.3 Barbour, Violet, 140n.16,
Arden, Forest of 141n.32
in As You Like It, 11: see also Locus Barker, Francis, 56n.43
amoenus; Property, theories of Barnaby, Andrew, 265n.29
Aristotle, 75, 252 Barthes, Roland, 144, 163n.9
Nicomachean Ethics, 125n.7, Barton, Sir Dunbar Plunket, 5,
125n.25 125n.10
Robert Boyle on, 252 Bastardy
on equity, 110–112, 114–115, 118 outlawed in 1576, 168
and the “well made” plot, 145 Bate, Jonathan, 55n.17, n.41
Assumpsit, 126n.8 Batman, Stephen
see also Law, Common on deformity, 52
Augustine, St. (of Hippo) Beattie, J. M., 56n.44
Contra Adimantum Manichaei Beaumont, Francis, 27
discipulum, 89n.6 Berg, James E., 62, 71n.13,
on private ownership of property, 75 71n.14, 72n.35, 148, 152,
Austin, J. L., 16n.3 163n.23
266
Index 267
Berger, Harry, Jr., 187n.22, 215, Bracton, Henry, 14–15, 19n.36,

226n.3, 229n.38, n.40 192–93, 199–200, 206n.15,
Bergeron, David, 55n.16 233–35, 246n.2
Bernthal, Craig, 16n.5, 17n.14, De Legibus et Consuetudinibus
72n.35, 148, 152, 163n.18, Angliae (On the Laws
163n.23 and Customs of England),
Bevington, David, 16n.1, 69n.2 246n.2
Bilello, Thomas C., 12 Brandeis, Arthur, 164n.34
Birch, Thomas Braunmuller, A. R., 205n.1
Memoirs of the Reign of Queen Brief Treatise Discovering in substance
Elizabeth, 54n.4 the offences, and ungodly practices
Birks, Peter, 246n.1 of the late 14. Traitors condemned
“Bishop’s Ban” of 1599, 188n.36 on the 26. Of August 1588, A, 46
see also Satire Brink, Jean R., 229n.43
Black’s Law Dictionary, 17n.14 Broadsides, 9
Blackstone, Sir William, 95 Brockbank, Philip, 148, 163n.5, n.22,
Commentaries on the Laws of 249n.10
England: A facsimile of the First Brooke, Nicholas, 55n.13
Edition of 1765–69, 106n.7 Brooks, Peter, 163n.10
Bodin, Jean Broude, Ronald, 55n.18
The Six Bookes of a Commonweale, Brown, John Russell, 226n.4
240, 247n.20 Brown, Wendy, 207n.51
Body Brugis, Thomas, 149
in accession speech of James VI and Vade Mecum, or, a Companion for a
I, 211: in response to James VI Chyrugion, 164n.27
and I by Sir Edward Phelips, Buck, A. R., 11, 17n.5, 89n.10, n.11,
211–12 n.22, 90n.24
natural, 239 Bullough, Geoffrey, 166n.64
politic, 6–7, 205n.4, 235, 247n.8, Burgess, Glenn, 125n.15, 226n.6,
n.14 231n.82, 234, 246n.6
Boece, Hector, 215–17 Burns, J. H., 231n.75
Bogdanor, Vernon, 69n.1 Burt, Richard, 71n.13, 88n.3
Bolgar, R. R., 36n.19 Bushnell, Rebecca W., 232n.96
Bolton, W. F., 70n.5 Butler, H. E., 35n.13
Bonds
Shylock’s with Antonio in The Cade, Jack, 11, 72n.35, 73–75, 79,
Merchant of Venice, 6, 101, 109, 82–85, 89n.4, 148–52,
130: as against natural law, 113 163n.23
Bonham’s Case, 34, 37n.61 Cairncross, Andrew S., 162n.6
“Book of Orders of Assurances,” 134–35 Calderwood, James, 204, 207n.53
Boose, Lynda, 107n.10, 108n.26 Calendar of Assize Records: Home Circuit
Boris, Edna Zwick, 18n.26 Indictments, Elizabeth I and James
Bowen, Catherine Drinker, 34n.3 I, 165n.46
Bowers, Fredson Thayer, 56n.39 Calendar of State Papers, Domestic,
Boyer, Allen D., 10, 16n.4, 17n.16, 72n.23
34n.1, 35n.7, 37n.45 Calendar of the manuscripts of the most
Boyle, Robert, 252–58 honourable, the Marquess of
A Free Inquiry into the Vulgarly Salisbury preserved at Hatfield
Received Notion of Nature, 264n.9 House, Herfordshire, 188n.38
268 Index
Callaghan, Dympna, 10, 57n.61 Clark, Donald Lemen, 35n.12, 70n.7

Campbell, Lily B., 18n.26, 57n.23 Clark, Peter, 70n.7
Cantor, Leonard, 90n.28 Clark, Stuart, 23n.62, 217
Caplan, H., 35n.14 Clarke, Danielle and Elizabeth, 165n.62
Carlyle, A. J., 89n.6 Clarkson, Paul S., 3
Carroll, James D., 55n.16 Clegg, Cyndia Susan, 13
Carroll, William C., 229n.37, Clergy
230n.46, n.54 legal privileges of (“benefit of”), 50,
Carruthers, Leo M., 164n.34 150: denied in cases of rape,
Cartelli, Thomas, 88n.3 100
Cary, Sir George, 116 Cockburn, J. S., 164n.37, 165n.46
Catholics Coddon, Karin S., 208, 221, 226n.2
and charges of cannibalism, 49 Cohen, Stephen A., 110, 114, 118,
considered traitors under Elizabeth I 124n.5, n.55, 126n.33, 236n.4
and James IV and I: The Coke, Sir Edward
Babington Plot, 159; The Commentary Upon Littleton, 33,
Gunpowder Plot, 21, 208, 214 37n.52, 53
and torture, 38 The First Part of the Institutes of the
Cave, Terence, 144–48, 163n.10 Laws of England, or a
Cavell, Stanley, 239, 247n.8, n.15 Commentary upon Littleton,
Cecil, Sir Robert (Lord Treasurer) 57n.64
as deformed, 52 The Lord Coke His Speech and Charge,
Cecil, William (Lord Burghley) with a Discourse of the Abuses
and public execution, 46 and Corruption of Officers, 35n.6
Cerasano, S. P., 174–75, 186n.6, Preface to the Second Part of the
187n.24 Reports, 37n.59
Chamberlain, Sir John Le Quart Part des Reportes Del Edward
The Letters of, 57n.59 Coke, 186n.4, 231n.74
on Francis Bacon’s “Of Deformity,” Selected Writings and Speeches of,
53 37n.59
Chancery Court defense of Edmund Denny against
see Courts slander, 186n.3
Cheney, Patrick, 18n.22 and James IV and I, 220
Christianson, Paul, 228n.21 involvement with torture, 39
Christie, Agatha, 144, 163n.8 paraphrase of Gaunt’s speech from
Cicero, 22, 29, 33, 36n.24, 127 Richard II, 21
De Inventione, 156, 165n.51, n.57: as on the signs of fraud, 101–102
influence on the work of on slander, 168
William Lambarde, 157 Collinson, Patrick, 3, 17n.9
De Legibus, 239–40, 247n.16 Collusion
De Oratore, 37n.59 in Wimbish v. Tailbois, 194–95
De re publica, 242, 248n.23 Comedy
on oratory and the creation of “Christian Terence,” 159
society, 24 and “generic insurance” in The
Cinthio, Giraldi, 101–104 Merchant of Venice, 136–38,
Hecatommithi, 108n.21 141n.27
Civil Law Roman: forensic strategies in, 158
see Law, types of Common Law
Clare, Janet, 72n.35 see Law, types of
Index 269
Commons consistory, 3, 150, 168

as class of subject, 13, 74, 85, 87, ecclesiastical, 18, 93, 96, 186n.1,
143m 147–48, 160–62, 165n.63, n.6: and mediation, 182–84;
214, 221, 228n.21, n.25, n.26, and prescription of penance,
n.27 150, 155, 164n.31; as presiding
see also Property, types of over sexual indiscretions,
Commons, House of 168–72, 183, 251, 264n.5; as
see Parliament presiding over slander in the
Community, 13, 74, 85, 87, 143, case of spiritual crime, 168
147–48, 160–62, 165n.63, 214, of equity, 2–3, 12, 115, 118,
221, 228n.21, n.25, n.26, n.27 125n.26
Confession, 40, 225, 249, 257 of King’s Bench: Davies v. Gardiner,
annual lay, 150–51: and confessions 167–68, 180; Palmer v. Thorpe,
of homicide, 150 168; as presiding over slander
Consistory Courts cases
see Courts prerogative, 2, 15, 58, 71n.18, 79,
Constables, 53, 150, 155 221, 229n.36, 238–39:
Constitution Admiralty, 132
Ancient, 14, 30, 37n.48, 125n.15: Star Chamber, 3: jurisdiction over
Coriolanus on, 237–40; Macbeth abduction of heiresses, 93;
on, 208–226 De Libellis famosis case, 1606,
“Modern,” 251 186n.3; Sir Thomas Egerton’s
Roman Republic in the Twelve speech before, 185; trial of
Tables, 237 William Prynne by, 50–51
Stuart, 246n.6 Coverture
Constitutional Documents of the Reign of see Property, rights to, of women,
James I, 229n.31 197
Constitutionalism, 7, 11, 241, 246 Covin, 194–95
Conveyance see also Collusion
see Property Cressy, David, 57n.50
Conveyances, 12, 91–92, 99 Criminal Law
as legal documents, 103 see Law, types of
Coquillette, Daniel R., 37n.49 Crown Lands, 62–64, 71n.19, 78, 82,
Corbin, Peter, 69n.3 88, 89n.10
Coroners, 4, 149–50, 154–55 Elizabeth I’s sales of, 64, 71n.19
and gathering of evidence, 148, Cunningham, Karen, 18n.20, 55n.22
151, 153–54 Custom, 5, 15, 19n.36, 24, 31, 74–77,
subordinated to the justice of the 79, 84, 86–87, 134, 206n.15
peace, 151 in Coriolanus, 237, 239–44, 246n.2
Corrigan, Brian Jay, 16n.5 James VI and I’s disregard for
Courts English legal, 210, 213,
Chancery, 29, 110, 115–16, 125n.15, 220–21
126n.27, 132, 141n.19, 212: in Richard II, 58, 60–63, 68–69,
Francis Bacon as head of, 52; 70n.8, 71n.11, n.13
John Selden on, 52; as venue for
Fortescue v. Goodwin, 212–13 van D’Elden, Karl H., 140n.14
of common law, 2, 3, 12, 17n.14, Dacre’s Case, 194
60, 115, 164n.37, 168: at Darwin, Charles, 145
Westminster Hall, 132 Daston, Lorraine, 127–28, 139n.3
270 Index
Davies, Anne Dillon, Anne, 56n.31

see Davies v. Gardiner Disafforestation, 11, 81
Davies, John see also Property, types of
Epigrames, 188n.37 Dismemberment, 38, 47, 49
Davies v. Gardiner and relics of martyrs, 47
Sir Edward Coke on, 167–68 of hands in Titus Andronicus, 46
and sexual slander against women, see also Torture
167–170 Divine Law
Davis, Edward B., 264n.9 see Law, types of
Davis, Natalie Zemon, 107n.3 Divine Rights of Kings
De Libellis famosis, 186n.3 see Kingship; Monarchy
De Republica Anglorum, 19n.9, 17n.18, Divorce, 100
210n.14 see also Marriage
De Termino Michaelis, 206n.23 Documents Relating to the Proceedings
Debt, 99, 101, 107n.18, 110, 116, Against William Prynne in 1643
124n.2, 126n.27 and 1637, 56n.46
deferral of payment of, 12 Dodderidge, Sir John
Defamation The English Lawyer, 37n.47
See Libel; Slander Donne, John, 229n.35
Defense, 170, 236, 239 Doyle, Sir Arthur Conan, 145
of liberty, 220 Drakakis, John, 19
Defoe, Daniel Dudley, Robert (Earl of Leicester)
Essay Upon Projects, 131 and the death of Amy Robsart,
“Of Assurances,” 139n.13 106n.19
“Of Friendly-Societies,” Duel
139n.13 in Hamlet, 201
on personal injury insurance, see also Revenge
139n.13 Dyer, Sir James (Chief Justice),
Deformity, 43, 53 189–98
Francis Bacon on, 52 The Lost Notebooks of Sir James Dyer,
Stephen Batman on, 52 205n.3
and torture, 43, 52 see also Hales v. Petit
Demesne, Royal
see Crown Lands Eccles, Mark, 34n.2
Deposition, 151–52, 251, 261 Education, 10, 209, 258
see also Kingship; Monarchy in grammar schools, 22–25
Derrida, Jacques, 98, 107n.12 of lawyers, 29–31
Detection, 145, 150, 164n.26 and rhetoric, 31–34
in 2 Henry VI, 143–62 Egerton, Sir Thomas (Lord Keeper),
lay participation in, 153 speech before the Star Chamber,
as related to reading, 164n.40 185
Detective fiction, 144–45, 163n.11 Elizabeth I, Queen
Devereux, Robert (Earl of Essex) Her Majesties Most Princely
leader of Essex’s Rebellion, 185 Answer . . . On the Last
and satire, 186 Day of November 1601,
and Tyrone’s Rebellion, 185 227n.16
Devereaux, Simon, 56n.31, 56n.44, n.49 Ellesmere, Lord Chancellor, 216,
Dewar, Mary, 17n.18, 227n.14 229n.36
Diehl, Huston, 265n.28 see also Egerton, Sir Thomas
Index 271
Ellis, Robert Leslie, 54, 246n.5, gathering of: by citizens, 4, 13,

265n.23 143–66; by coroner, 144–45,
Elopement, 11, 92, 100–101, 103 149, 151, 153
see also Marriage instability of, 13, 128
Elton, W. R., 18n.20 interpretation of, 3
Elyot, Sir Thomas “irrational proofs”: cruentation,
The Book Named the Governor, 29, 154; proof by oath, 145; trial by
36n.26, 37n.44 battle, 146
Enclosure, 62, 68, 71n.13, 73–74, 81, William Lambarde on divisions of,
84, 87, 88n.3 156–57, 165n.52
see also Property, types of “last dying words” as, 153
Engle, Lars, 252, 264n.8 Quintilian on, 157, 165n.53
English Coronation Records, 231n.73 Evolutionary theory, 145
Entail, 77 Examination, 151–52, 154, 156, 180
see also Inheritance of suspects, 150: pretrial, 145
Entrapment, legal, 146–47 Execution, 12, 38, 50, 55n.22, 85,
Equity, 2, 3, 6, 12, 109, 115, 124n.2, 227n.18, 235
n.4, n.5, n.6, 125n.7, n.15, n.16, see also Punishment
126n.27, 152, 165n.62, 184, 198, Exempla, 10
203–205, 251 and the common law, 30–31
Aristotle on, 110–11, 113–15 Eyston, Thomas
Christopher St. German on, 2, see Eyston v. Studd
111–14, 189–90 Eyston v. Studd, 14, 19n.36,
Courts of 189–205
see Courts
and forms of action, 125n.26 Fall, The, 11, 75, 85, 88, 89n.10
Jean Gerson on, 112 Feme Sole, 192, 197
F. W. Maitland on, 116, 125n.26 see also Property, rights to, of
Edmund Plowden on, 2, 14, 195, women
197–98 Ferber, Michael, 193n.1
in Portia’s “quality of mercy” speech Ferguson, Margaret W., 16n.5, 89n.10
in The Merchant of Venice, Field, Nathan
114–15 The Queen of Corinth, 26
and revenge, 43 First Part of the Contention, 158,
Erasmus, Desiderius, 24, 30–31 162n.2, 164n.40
On Copia of Words and Ideas (De Fisc, 78–79
Copia), 36n.19 see also Property, types of
on the death of Socrates, 24 Fischlin, Daniel, 228n.21
Estate, 17n.7, 63, 74, 77, 79–82, 84, Fish, Stanley, 2, 16n.2
86, 89n.19, 96, 100, 107n.17, Fletcher, Anthony, 169, 187n.7
139n.6, 190–92, 213, 252 Fletcher, John, 26, 27, 29, 36n.17
Evans, G. Blakemore, 88n.1, 107n.15, The Double Marriage, 26
124n.1, 206n.35 The Queen of Corinth, 26
Evidence, 37n.46, 38, 101, 142n.29, Foakes, R. A., 19n.34, 42, 55n.20,
143, 149, 151–53, 161, 163n.11, 56n.43
165n.51, 169, 172, 180, 182, 236 Forensic oratory
Cicero on, 156–57 see Oratory, forensic
entechnic or inartificial proofs, Forensic reasoning
156–57 see Reasoning, forensic
272 Index
Forensics Glasse of Governement, 159, 165n.60

medical, 145, 149, 153 Jocasta, 159
Fortescue v. Goodwin, 212–13 Gaskill, Malcolm, 153–54, 163n.15,
Fortescue, Sir John, 5, 8, 9, 11, 12, 15, 164n. 30, 165n.41
209, 232, 235 Gentrup, William F., 229n.43
Learned Commendation of the Politike Gerard, John, 38
Laws of England, 19n.33, tortured by Richard Topcliffe, 38
227n.12, 246n.3 Gerson, Jean, 112, 125n.16
Fortier, Mark, 228n.21 Regulae Morales, 112
Foxe, John, 147 on equity, 112
Acts and Monuments (Foxe’s Book of Gest, John Marshall, 35n.6
Martyrs), 46, 47 Gifts, 101, 107n.11
Frank, Lawrence, 163n.11 Jacques Derrida on, 98, 107n.12
Fraud, 2, 95, 99, 103–105, 177 Claude Levi-Strauss on, 97
centaurs as figures of: in Othello, Marcel Mauss on, 97
104; in Ovid, 104 women as, 107n.11
in conveyance, 11, 17n.8, 91–106: Ginzburg, Carlo, 145, 163n.10
of property, 12; of women, Glenn, John Ronald, 36n.29
11, 12 Gless, Darryl J., 16n.5
description of, 91 Gohn, Jack Benoit, 65, 71n.18, 72n.25
elements of: in Renaissance Goldberg, Jonathan, 207n.50, 226n.3,
mercantile law, 134, 141n.23; in 230n.63, 247n.9
modern law, 106n.1 Goldie, Mark, 231n.75
elopement as: in Othello, 92, 96, 100 Goodman, Christopher, 220, 227n.11
as performed by Portia in Merchant How Superior Powers oght to be obeyd
of Venice, 12, 98, 99, 107n.18, of their subjects and Wherein they
110, 119, 120 Lawfully by Gods Worde be
prevention of in insurance policies, disobeyed and resisted, 220,
133 231n.77
signs of: as described by Sir Edward Goodrich, Peter, 204, 207n.54
Coke, 102, 103; in Othello, 101 Gowing, Laura, 168–69, 186n.6,
suicide as: in Hales v. Petit, 14, 190, 187n.9
199; in Othello, 12 Grady, Hugh, 264n.8
Fraunce, Abraham, 32 Graves, Michael A. R., 55n.6
The Lawiers Logic, exemplifying the Gray, Madeleine, 72n.21
praecepts of Logic by the practice Green, Richard Firth, 164n.39
of the common Lawe, 37n.56 Greenblatt, Stephen, 57n.63, 88n.3,
Fryde, E. B., 70n.6, 71n.12, n.13 141n.27, 148, 163n.22, 263n.2
Fumerton, Patricia, 72n.35, Greene, Lawrence D., 35n.10
230n.58 Greene, Thomas, 20
Griffiths, Paul, 56n.31, n.44, 57n.49
Gardiner, John, 167–69, 180 Guilpin, Richard
see also Davies v. Gardiner Skialetheia or A Shadowe of Truth,
Gardiner, S. R., 56n.46 188n.36
Gardiner, Samuel L., 228n.27 Gunpowder Plot, The, 21, 208, 214
Garner, Bryan A., 17n.14 see also Catholics; Rebellion
Garnet, Henry, 38 Gurr, Andrew, 59, 65, 70n.5, n.26,
tortured by Richard Topcliffe, 38 n.29, 247n.8
Gascoigne, George, 159 Guy, J(ohn) A., 112, 125n.16, 188n.41
Index 273
Gwinn, Matthew, 216 Heath, James, 54n.3, n.7

Tres Sibyllae, 217 Heiresses, 94–95
Desdemona of Othello as,
Hadfield, Andrew, 18n.22 96, 100
Sir James Dyer and, 189–98 Portia of The Merchant of Venice as,
and the “three branches” of 96–97
action, 14, 189: in Hamlet, rape of, 95
198–205 wardship of, 94–95
Hales, Lady Margaret, 190–98 see also Property, rights to, of
see also Hales v. Petit women
Hales, Sir James, 190–98 Helgerson, Richard, 17n.16,
see also Hales v. Petit 36n.28
Hales v. Petit, 189–205 Heller-Roazen, Daniel, 248n.21
Hall, Edward, 221 Helmholz, R. H., 170, 187n.13
Hall’s Chronicles, 231n.78 Henderson, E. G., 126n.27
Hall, Joseph Hendricks, Margo, 108n.26
Virgidemiarum, 188n.36 Henry VI, 193
Halley, Janet, 209n.51 Henry VIII, 231n.73
Halper, Louise, 236n.4 Herford, Charles Harold,
Hammer, Paul E. J., 54n.4 36n.35
Hand Herman, Peter C., 14
“amending,” 189–205: Hamlet as, Herrup, Cynthia, 56n.31, 153–54,
19n.36, 198–205; Edmund 164n.30, 165n.42
Plowden on, 14, 19n.36; Hexter, J. H., 68, 72n.36
Hanson, Elizabeth, 19n.34, 164n.29, Heywood, Thomas
n.38 Apology for Actors, 200
Harbage, Alfred, 35n.5 1 Edward IV, 72n.35
Hardships of the English Laws in Sir Thomas More, 72n.35
Relation to Wives, 207n.47 Hill, Roger
Harington, Sir John, 42 and the John Neil murder case, 155,
protest against James VI and I’s 165n.46
absolutism through rural Hoby, Lady Margaret, 106n.9
retreat, 210, 228n.20 Holdsworth, William, 193
Harmon, A. G., 15n.5 A History of English Law, 186n.3,
Harriss, G. L., 78, 90n.25 206n.18
Hasler, P. W., 54n.6 Holinshed, Raphael, 148, 223
Hatcher, John, 71n.11 Chronicles of England, Ireland, and
Hattaway, Michael, 88n.3 Scotland, 9, 71n.12, 216–17,
Havard, J. D., 149, 164n.26, n.35 228n.18, 229n.43, 230n.60,
Hawes, Stephen, 25 231n.78
The Pastime of Pleasure, 36n.27 Holmes, Sherlock, 145
Hawkes, Terence, 7, 18n.28 Homicide, 20, 34n.4
Hawkins, Michael, 226n.4 accidental, 192, 199–200
Hawley, William M., 16n.4 and annual lay confession
Hayward, Sir John, 223 of, 155
Life and Raigne of King Henrie IIII, secret, 150, 164n.26, n.35
231n.80 Homily against Disobedience and Willful
Heath, Douglas Denon, 54n.8, 246n.5, Rebellion, An, 220
265n.23 Honigmann, E. A. J., 141n.26
274 Index
Honor, 71n.16, 76, 173 through reversion, 63: in Richard II,

men’s: in Much Ado about Nothing, 63
167–68, 172–75, 182; chivalric, and succession to the throne, 58,
173, 184–86; and Claudio, 69n.1, 71n.18, 79, 216, 221
173–74, 184; and cuckoldry, and women, 80, 100, 196–97
172; as non-recoverable see also Property, rights to, of
property, 163; in Othello, women
102–103 Inns of Court, 9–10, 18n.20, 29,
and slander: in Much Ado about 37n.44
Nothing, 173, 175, 180–81 and moot courts, 6, 8
women’s: in Much Ado about Inquest, 4, 17n.14, 148
Nothing, 102–13, 164, 168, 173; coroner’s, 144–45, 147, 149–50, 152,
and Hero, 170, 173 191
Hooker, Richard, 255, 257, 260 sworn, 151
Of the Laws of Ecclesiastical Polity, see also Inquiry
264n.18 Inquiry, 4, 17n.14
Horner, Winifred B., 35n.8, 36n.40 murder: in 2 Henry VI, 143
Howard, Jean E., 18n.26, 57n.63, Insurance
226n.3, 247n.8 practices concerning, 139n.6: claims
Hoyle, R. W., 70n.6, n.10, 72n.21, against, 132; premiums for, 132
89n.22 theories of: Daniel Defoe’s proposals
Hubbell, H. M., 36n.24, 165n.51 concerning, 131, 139n.13
Hume, David, 127–28 types of: fire, 131, 140n.14; lex
Treatise of Human Nature, 127, mercatoria, 134–35, 139n.12;
139n.2 life, 131–32, 140n.14; “lost or
on probability, 128–29, 138 not lost” policies, 134–36;
Hunniset, R. F., 163n.6 marine, 12, 13, 127, 129–30,
Hunt, Maurice, 187n.29 133–32, 140n.15, 141n.19;
Hunt, Simon, 72n.35, 230n.58 personal injury, 131; standard
Hunter, Michael, 264n.9 policies, 135, 137, 140n.16,
Hutson, Lorna, 13, 37n.46, n.47, 141n.19; tontine system of,
57n.62, 165n.51, n.61, n.62, 131, 139n.9
205n.4
Jackson, Macdonald P., 69n.3
Iden, Garden of, 11 Jacob’s Well: An Englisht Treatise on the
in 2 Henry VI, 11, 68, 73, 82, 85, 88, Cleansing of Man’s Conscience,
88n.3 150–51, 164n.34
see also Property, theories of; Locus Jagendorf, Zvim, 247n.8
amoenus James VI and I, King
Ingram, Martin, 57n.49, n.53, 168–71, accession speech of, 211
173, 181, 183, 186n.4, n.6, letter from Francis Bacon on
187n.10, 264n.5 torture, 39
Inheritance Political Writings of, 227n.7
and enfeoffment to use, 63 The Trew Law of Free Monarchies:
through entailment, 63: Thomas or The Reciprock and Mutual
Starkey on, 76–77, 80, 85, 88. Duetie Betwixt a Free King
89n.11 and His naturall Subjects,
through primogeniture, 69n.1, 227n.7: on absolutism,
77–80: in As You Like It, 81 208–226; on rebellion, 15, 216,
Index 275
James VI and I, King – continued and written examination of

220, 222; on tyranny, suspects, 151–52
222–24, 227n.11, 133–34, 241, Justinian
244, 256 Institutes, 233–35, 246n.1
James, Heather, 55n.24
Jameson, Fredric, 9, 19n.35 Kahn, Coppélia, 247n.8
Jardine, Lisa, 107n.17 Kahn, Paul W., 7, 18n.22
Jesuits Kahn, Victoria, 37n.46, 205n.4,
see Society of Jesus 248n.21
Jesus of Nazareth Kamuf, Peggy, 107n.12
Sermon on the Mount, 44 Kaplan, M. Lindsay, 16n.4, 179,
Johnson, Harold J., 140n.14 187n.18
Jointure, 31, 193, 196–97 Kastan, David Scott, 208, 221,
see also Property, rights to, of 226n.2, n.4, 230n.53, 231n.84,
women 232n.87
Jolowicz, H. F., 247n.11 Katz, Stanley N., 106n.7
Jones, Emrys, 146–47, 159, 163n.17, Kauffman, Stanley, 99, 108.19
n.66 Kavanagh, Thomas M., 139n.3
Jones, W. J., 141n.19 Keeton, George W., 16n.4, 17n.16,
Jonson, Ben, 56n.45 18n.26, 109, 114, 118, 124n.3,
Isle of Dogs, 38 125n.21, n.23, 126n.33
Poetaster, 187n.18 Keller, Katherine Z., 228
Works, 36n.35 Kendall, Gillian Murray, 16n.4
branded as murderer of Gabriel Kennedy, Joyce D., 139n.13
Spencer, 50 Kenyon, Timothy, 89n.5
on comedy and oratory, 27, 36n.35 Kepler, J. S., 140n.15, n.16, 141n.23,
interrogated by Richard Topcliffe, 50 142n.30
on Marlowe’s Tamburlaine, 27 Kermode, Frank, 54n.1, n.3
Jordan, Constance, 16n.5, 18n.22, Kermode, Jennifer, 186n.6
227n.6 Kernan, Alvin, 226n.1, 230n.55
Joseph, Sister Miriam, 15n.4, Kerridge, Eric, 79n.6
36n.41 Kerrigan, John, 145, 163n.12, n.13
Jury, 1, 3, 17n.14, 148, 151–53, 56–58, Kiernan, Michael, 54n.10
164n.39, 236 King, Donald B., 36n.19
Coroner’s, 149, 154, 162n.6, 190 Kingdom, Robert M., 231n.75
selection of, 4, 17n.14 Kingship
sequestering of, 4 in deposition, 14, 64, 221–24,
Justice 231n.80
and equity, 111–12, 114–15, 118 Divine Right, 7
participatory, 13, 143–62: in 2 Henry legitimacy of, 5, 7, 62, 216, 218–19
VI, 13 see also Monarchy
and the state, 2, 4, 9–10, 38–54 Kinney, Arthur F., 227n.11, 228n.21,
Justices of the Peace, 148 229n.43, 230n.60
and binding witnesses to testimony Kinwelmarsh, Francis
at trial, 151 Jocasta, 159
Roger Hill as president over the Klinck, Dennis R., 67, 70n.5, 72n.30,
John Neil murder case, n.31
165n.46, 154–55 Knafla, Louis, 229n.36
William Lambarde on, 156 Knapp, James A., 229n.43
276 Index
Knolles, Richard, 247n.20 types of: canon, 149–50, 170; and

Kornstein, Daniel J., 16n.4, heresy trials, 150; and
18n.21 probability, 149; common, 2, 3,
Kreuger, Paul, 246n.1 5, 10–12, 16n.5, 17n.14, 21,
Kyle, Chris R., 10 30–33, 37n.56, 58, 60, 68, 76,
88, 93, 105, 109–110, 114–15,
de LaClos, Pierre Ambroise Francois 118, 132, 141n.18, 148, 150,
Choderios 156, 164n.37, 167–68, 193, 197,
Les Liasons Dangereuses, 55n.27, 204–205, 240, 251; and
56n.31, n.44 assumpsit, 126n.28; civil, 4, 7,
Lake, Peter, 47, 56n.44 235, 246n.4, 251; criminal, 3–4,
Lambarde, William 12, 39, 49–50, 91, 106n.3, 118,
Archeion, or A Discourse Upon the 120, 122–23, 227n.18, 145,
High Courts of Justice in England, 148–49, 151–52, 159, 161,
52 164n.30, n.37, 227n.18, 243,
Eirenarcha, or the Office of Justices of 260–61; divine, 5, 14, 256; and
the Peace, 156, 165n.52: Renaissance resistance theory,
divisions of evidence, 157; as 14; natural: Francis Bacon on,
influenced by Cicero’s De 251–52, 257–59; Richard
Inventione, 157 Hooker on, 255, 257, 260,
Lamont, William M., 57n.52 264n.18; James VI and I on,
Langbein, John H., 17n.10, 54n.7, n.12, 209; and monarchy, 11; and
149, 151–52, 164n.28, n.36, n.39 reason, 5; and rebellion, 216,
Land 220, 222; and scientific
see Property discourse, 15; political
Language significance of in Measure for
and indeterminacy: in Much Ado Measure, 249–63; political
about Nothing, 175–76, 178 significance of in The Winter’s
legal, 5, 20, 70n.6, n.9, 107n.17, Tale, 253–56; violated by
108n.27, 139n.6, 148, 186n.9, Coriolanus, 239; positive, 5, 8,
187n.29, 200, 232n.96, 237: in 11, 14–15, 212; Roman, 2, 236,
The Merchant of Venice, 20, 99, 241, 247n.11; on fisc, 78
107n.18, 117; in Othello, 105, Lawlessness, 237, 240, 243,
130; in Richard II, 58–69 245–46
and wit, 16n.4: in Much Ado about in times of war, 233–34
Nothing, 170, 177, 185 Lawyers
Laslett, Peter, 99, 106n.6 education of, 10, 20–34
Latin Dictionary, A, 36n.20 Leff, Michael, 35n.8, 36n.40
Latour, Bruno, 251, 264n.7, n.20 Legg, Leopold George Whickham,
Laud, William (Archbishop of 231n.73
Canterbury), 50–51 Leggatt, Alexander, 18n.26
Law Legh, Gerard
codes of: Hammurabi, 43; Accidens of Armorie, 246n.4
Justinianic, 233–34, 235; Law of Legitimacy
Moses, and retributive justice, see Kingship; Monarchy
44; and retributive justice, 44 Leinwand, Theodore B., 139n.1
and imagination, 6–7, 18n.24, n.27, Lemon, Rebecca, 14, 16n.5, 208,
19n.30, 191, 200, 234 226n.2
as text, 7–8, 10, 195, 204 Levi-Strauss, Claude, 97, 106n.10
Index 277
Lewin, Chris, 140n.14, n.16, 141n.21, Marchant, Ronald, 168, 170, 186n.3,
n.24, n.25 n.5, n.6, 187n.15
Lewis, Charleton T., 36n.20 Marcus, Leah S., 227n.16, 263n.4,
Lewis, C(live) S(taples), 22, 35n.11 264n.5
Libel, 14, 50, 186, 186n.1 Mares, F. H., 178, 185, 187n.19, n.28,
Sir Thomas Egerton on, 185 n.35
vs. slander, 167–68 Marian Bail and Committal Statutes of
see also Slander 1555 and 1556
Liber Regalis, 220, 231n.73 see Statutes
Liberty, 10, 29, 209, 214, 220 Marienstras, Richard, 56n.40
Life and Death of Jack Straw, The, Marlowe, Christopher, 29, 55, 223
72n.35, 247n.12 Doctor Faustus, 31, 37n.53
Literalism in law, 2, 20, 109 Edward II, 221, 231n.81
in Plowden, 195, 197 The Massacre at Paris, 36n.29
Lloyd, Janet, 56n.40 Tamburlaine, 25, 26, 36n29, n.30
Lockwood, Shelley, 17n.17, 227n.12 Marriage, 3, 15, 20, 26, 42, 77–78, 93,
Locus amoenus 167–169, 171, 176–78, 180–81,
as allusion to the Garden of Eden, 184, 193
73–88 and adultery, 251
The Forest of Arden in As You Like It and commerce: in The Merchant of
as, 11, 82–88 Venice, 98, 119; in Othello,
The Garden of Iden in 2 Henry VI as, 102–103, 105
73, 82–88 contracted by elopement, 11: as
Love fraud, 11, 92, 93, 96; in Othello,
described in legal language, 20 92, 96, 100
Lyndwood, William infidelity in, 101, 177
Constitutions prouincialles Marston, John
and of Otho and Octhobone Pygmalion, 188n.36
Translated in to Englyshe, Martyrdom, 10, 47
164n.31 and relics, 47: of Edmund Campion,
47; of William Hart, 47
Mack, Peter, 35n.9, 36n.42 Massinger, Philip
Magistrates The Queen of Corinth, 26
in Cicero, 239, 242 Matthew, St.
in English society, 8, 44, 153 Sermon on the Mount, 44, 55
in Shakespeare, 3, 251 Maus, Katharine Eisaman, 56n.29,
Mahood, M. M., 139n.5 57n.63
Maitland, F. W., 116, 125n.26 Mauss, Marcel, 97, 107n.12, n.13,
Major, John M., 37n.44 n.18
Malynes, Gerard, 137, 121, 132, 134 Mayer, Thomas, 89n.11
Consuetudo, Vel, Lex Mercatoria, or, McClure, N. E., 57n.59
The Ancient Law-Merchant. McGuire, J. E., 264n.11
Divided into three Parts: McLeod, Grant, 246n.1
According to the Essential Parts of Mears, Valerie, 188n.41, n.42
Trafficke (Lex Mercatoria), Mediation
139n.12, 140n.14, 141n.17, see Courts, ecclesiastical
n.20, n.23 Menander, 158
Manderson, Desmond, 18n.20 Meron, Theodor, 18n.22
Manning, John J., 231n.80 Messiac, Régis, 163n.11
278 Index
Middleton, Thomas Munday, Anthony, 55n.16, 228n.22

Microsynicon, 188n.36 Fidele and Fortunio, 41
Miller, Jon, 264n.11 Pageants and Entertainments of,
Miller, Peter, 107n.13 55n.16
Miller, Richard, 163n.9 as torturer, 48
Mirrors Munden, R. C., 228n.21
kings as, 217 Murder, 4, 8, 50, 96, 149
Misogyny in Hamlet, 14
in Hamlet, 204 in 2 Henry VI, 13, 143–48, 152, 156
in Renaissance law, 203–204 Ben Jonson convicted of
Molloy, Charles in Macbeth
De Jure Maritimo et Navali: or, a in The Merchant of Venice, 109, 118
Treatise of Affaires Maritime, And of John Neil, 154–55
of Commerce, 141n.23 in Othello, 12, 102–04
Monarchy in Richard II, 59, 62
Abdication: in Richard II, 65, 66 in Titus Andronicus, 47–48
Absolute, 14: James VI and I on, Murphy, James J., 36n.26, 37n.45
209, 215, 217, 219, 230n.52; Myrsiades, Kostas and Linda,
Macbeth as critique of, 209, 70n.5
218–19, 224; Sir John
Harington’s reaction to, 210 Nadeau, Ray, 35n.12, 36n.39
deposition, 14, 64, 221–24, Nashe, Thomas
231n.80 Isle of Dogs, 38
inheritance of, 78–79 interrogated by Richard Topcliffe,
Mixed, 209, 211 38–39
and Parliament, 5, 6, 208–14, 217, Nature, 7, 32, 49, 52, 75–76, 127, 131,
221: Sir Edward Phelips on, 211 132
see also Kingship in As You Like It, 86
Montgomery, Robert L., Jr., 72n.32 Francis Bacon on, 15, 52
Montgomery, William, 162n.2 as different from intellectual beings,
Montrose, Louis, 80, 90n.28 258: in the work of Thomas
Moot courts Aquinas, 75; in the work of
at Inns of Court, 6, 8, 9 Robert Boyle, 252–58
More, Sir Thomas, 147 in Measure for Measure: as associated
Utopia, 89n.11 with sex, 15
treason trial of, 227n.18 Natural Law
Mornay, Philippe du Plessis see Law, types of
Defense of Liberty Against Tyrants, Neale, J. E., 227n.15
220 Neck verse, 50
Morris, Christopher, 264n.18 Neil, John
Moss, Ann, 36n.19 murder of, 154–55
Motive, 1, 156 Newman, Karen, 107n.18, 108n.28
as described by William Lambarde, Newton, Isaac, 251–52
156 Philosophiae Naturalis Principia
Mueller, Janel, 227n.16 Mathematica, 264n.6
Muir, Kenneth, 247n.20 Nicholas, B., 247n.11
Mulcaster, Robert, 19n.33, 246n.3 Nichols, John, 227n.17, 230n.49,
Mullaney, Steven, 230n.57, n.63, n.50, n.61
263n.2 Nicolson, Adam, 227n.17
Index 279
Norbrook, David, 208, 215, 226n.2, Paré, Ambroise

n.4, 229n.41, 230n.65, 213n.83, Rapports et du moyen d’embaumer les
232n.87 corps morts, 149: as influence on
North, Thomas, 247n.12 the work of Thomas Brugis, 149
Norton, Thomas Parity
Gorbuduc, 41, 55n.14: as source for as aim of revenge, 43
Titus Andronicus, 55n.16 Parker, Patricia, 108n.26
as torturer, 41, 48 Parker, Stephen, 108n.21
Nosworthy, J. M., 264n.16 Parkin-Speer, Diane, 37n.43
Notestein, Wallace, 228n.26, n.27 Parliament, 32, 34, 63, 93, 132,
Novak, Maximillian, 139n.13 140n.16, 198, 221, 224
Novel Commons, House of, 25, 51, 54n.6,
of detection, 144–46, 149, 163n.11 211–14, 218: “Form of Apology
realist, 144–45 and Satisfaction” to James VI
Noy, William and I, 213; Journals of, 212
death from laughter at torture of and Elizabeth I, 64, 210
William Prynne, 51 and James VI and I, 6, 209–14, 217,
230n.52, n.54
O’Connor, Marion F., 226n.3, as portrayed in 2 Henry VI, 147
247n.8 Sir Thomas Smith on, 5–6, 210
Oakley, Francis, 234, 264n.6, n.11 and sovereignty, 5–6, 11, 14, 64,
Oesterreich, Peter L., 35n.10 208, 210–14
Ong, Walter, 27, 36n.38 Parmiter, Geoffrey, 205n.4, n.10,
Oratory, 1, 27 206n.45
forensic, 13, 85, 144, 148, 156–57, Participatory Justice
161: Warwick’s “bleeding see Justice
heifer” speech in 2 Henry VI as Pathology, Forensic
based on, 157 see Forensics
and foundations of society as Patterson, Annabel, 71n.12, 148,
described by Cicero, 24, 33 163n.33, 166n.67, 228n.18
see also Rhetoric Paul, St.
Orgel, Stephen, 203, 207n.50 Romans, 52, 57n.58
Ormrod, W. M., 71n.17 Paul, Henry N., 230n.50, n.54
Ostwald, Martin, 125n.7 Pearlman, E., 163n.19
Ovid Peck, Linda Levy, 228n.21
Heroides: Dido to Aeneas; as model Peele, George
for Queen Margaret’s speech in The Battle of Alcazar, 45
2 Henry VI, 160 Titus Andronicus, 38, 48, 50
Metamorphoses, 42, 55n.25, Peet, Donald, 36n.30
104 Petit, Cyriack
Oxford Dictionary of National Biography, see Hales v. Petit
54n.5, 164n.27 Petition of Right against Impositions,
Oxfords Triumph In the Royall 208
Entertainment of his moste Excellent Phelips, Sir Edward
Majestie, 230n.51 response to accession speech of
James VI and I, 211–12
Pacino, Al, 99 Phillips, Augustine, 20
Pafford, J. H. P., 264n.14 Phillips, Owen Hood, 6, 16n.5,
Palmer v. Thorpe, 168 18n.19, n.25, 124n.2, 125n.21
280 Index
Plautus, 158 Procedure, Legal, 123, 160, 200,

Plett, Heinrich F., 36n.40 238–39
Plowden, Edmund as arbitrary in 2 Henry VI, 146, 152
Commentaries ou reportes, 2, 9, binding of witnesses to give
106n.8, 189, 190, 200, testimony at trial, 4–5
205n.4–n.6, n.8, n.9, n.11, examination of suspects: in Much
206n.12, n.22, n.27–n.34, n.36, Ado about Nothing, 13, 184–85
207n.46, n.53 gathering of evidence, 153–55, 180:
and the “amending hand,” 14, 190, warrants, 155
206n.45 Progresses, Processions, and Magnificent
as Catholic, 194 Festivities of King James the First,
on equity, 14, 190, 195, 198 The, 227n.17, 228n.19, n.20,
figure of a nut, 197–98, 205 230n.49, n.50, n.61
see also Equity Proof
Plucknett, T. F. T., 125n.10, 151 see Evidence
Plutarch, 27, 30 Property
Lives of Noble Grecians and Romanes: conveyance of, 90n.27: fraud in,
“The Life of Caius Martius 17n.8, 91–94, 101; in The
Coriolanus,” 237, 247n.12 Merchant of Venice, 12, 97–99; in
Pocock, J. G. A., 37n.48, 226n.6 Othello, 11–12, 95–96, 100–03;
Pollini, Girolamo of women, 11, 12, 91–92, 105,
Historia Ecclesiastica della Rivoluzion 106n.8
d’Inghilterra, 54n.1 Garden of Iden as in 2 Henry VI, 11,
Pollock, Sir Frederick, 6 82–83, 85
Ponet, John, 227n.11 honor as, 103
A Short Treatise of Politike Power, and kingship, 59, 63, 69
264n.21 land, 3, 10–11, 58–69, 73–88
Porter, Catherine, 264n.7 ownership of: by copyhold, 60–63,
Positive Law 68, 70n.8, 71n.14, 81; by lease,
see Law, types of 59–64, 70n.9, 71n.11
Posner, Richard, 116, 118–19, rights to, 3, 77: of commoners, 64,
126n.27, n.32, n.34, n.35 74, 79, 88; and coverture,
Prest, Wilfrid, 37n.44 190–94, 197, 202; as “dead in
Primogeniture law,” 175–76, 191–92, 195; and
see Inheritance elopement, 11, 92, 96; as femes
Privy Council, 132, 140n.16 sole, 192, 197; in the Forest of
James VI and I’s, 34n.3 Arden in As You Like It, 11, 79,
Queen’s: and torture, 39 86; of women, 92; in Hamlet,
Probability 202, 204; and inheritance, 11,
Antonio’s relationship to in The 58, 63, 77, 81, 86–87; and
Merchant of Venice, 12, 127, jointure, 31, 193, 196–97; and
129–30, 136, 138, 139n.6 seduction, 92
and forensic reasoning, 145, 148, seizure or seisin of, 65–66: for
153, 157, 161 suicide, 204; for treason, 60
David Hume on, 127–28 Shakespeare dispute concerning, 20
and marine insurance, tenure in capite, 17n.7
131–35 theories of, 68, 72n.33, n.35, 75–77,
and Othello, 131–32, 136, 138 82–85, 89n.11: as consequence
and risk, 129–30, 138 of the Fall of Adam and Eve, 11,
Index 281
Property – continued Questier, Michael, 47, 56n.31, n.37,

75, 89n.10; in 2 Henry VI, 11, n.44
77–78; private ownership, 75, Quiney, Richard, 20
85 Quintilian, 29, 33
types of: commons, 74, 84; Institutio Oratoria, 35n.13,
disafforestation of, 11, 84; 37n.59, 165n.53, n.55,
enclosure of, 73, 74, 81, 84, 87; 165n.56
fee simple, 17n.7, 82–84; fisc, on evidence, 157
78–79; real, 3, 67–68, 72n.36, on impersonation, 22
90n.27
waste of: in Richard II, 67–69, 72n.31 Race
Prosecution and biracial offspring: in
of crime, 17n.10 Othello, 92; in Titus Andronicus,
necessity of cause, 147 101
as public, 227n.18 and Irishmen, 105
for slander, 174 in Othello, 105, 108n.28
of William Prynne, 51 Rackham, H., 37n.59
of trespass, 11 Rackin, Phyllis, 18n.26
Prynne, William, 50–51 Ramée, Pierre de la (Petrus Ramus),
Canterburies Doome, 51 36n.29, n.38
Histrio-Mastix, 50 Rape, 23, 26, 40, 43, 55n.22, n.24,
A New Discovery of the Prelates n.25, 150
Tyranny in their Late Prosecutions of heiresses, 95–96
of Mr. William Prynne, 51 Rastell, John
The Sword of Christian Les Termes de la Ley, 17n.7
Magistracy, 51 Reason
Pulton, Ferdinando and natural law, 5
A kalendar, or table, comprehending natural v. artificial, 10, 32
the effect of all the statutes that Reasoning, 30, 138, 141n.29, 157
haue beene made and put in print, forensic, 144, 146, 148, 149, 153,
beginning with Magna Charta, 154, 162n.4, 163n.11, 165n.59,
enacted anno 9. H.3. and 200: strategies in Roman
proceeding one by one, vntill the comedy, 158–59
end of the session of Parliament Rebellion, 15, 68
holden Anno 3. R.Iacobi, 16n.4 Cade Rebellion of 1450, 148, 152
De pace Regis et regni, 144 in Coriolanus, 235
Punishment Essex’s rebellion of 1601, 20,
fines, 60–62, 70n.7, 71n.12, 251 185–86
imprisonment, 161, 237 Gunpowder Plot, 21, 208, 214
public: execution, 47, 54, 56n.31, in 2 Henry VI, 72n.35, 73–74,
245; hanging, 38; penance, 150, 82, 85, 88
155, 164n.31, 170, 181, 184; James IV and I on, 216, 222
whipping, 50, 54, 262 of the Northern Earls, 49
see also Torture Peasant’s Revolt of 1381, 148
Puritans, 29 against tyrants, 15, 78–79, 220
torture of, 50 Tyrone’s Rebellion, 185
Puttenham, George, 23–24, 32 see also Tyranny
Arte of English Poesie, 35n.16, Redmond, James, 55n.24
36n.25, 37n.55 Reese, M. M., 18n.26
282 Index
Reports Ross, Charles, 11, 17n.8, 107n.16,

see Plowden, Edmund 108n.20, n.23, n.24
Republicanism, 15, 235–39, 242–46 Rowley, Samuel, 69n.3
Revenge, 8, 120 Royer, Katherine, 56n.31
Francis Bacon on: as “wilde justice,” Ruby, Jane E., 264n.11
10, 39–40, 43 Rueger, Z., 125n.16
and cannibalism, 49 Rymer, Thomas
comedy of: Much Ado about Nothing Short View of Tragedy, A,
as, 53 130–31, 136, 139n.7, n.8,
courts as a forum for, 45, 123–24 n.10
and duels, 49, 53
and laughter, 45–46 Sacks, David Harris, 37n.47
and overkill, 40, 43 Sackton, Alexander H., 36n.35, n.36,
and Portia’s motive in The Merchant n.37
of Venice, 12, 120 Sackville, Thomas
and Shylock in The Merchant of Gorbuduc, 55n.14
Venice, 121–23 Sale, Carolyn, 14
and torture, 45 Salisbury, Marquess of
tragedy of: Titus Andronicus as, Calendar of the manuscripts of the
39–40; as symbolic most honourable, the Marquess of
compensation for Salisbury preserved at Hatfield
jurisprudence, 205 House, Herfordshire, 188n.38
Revolt Salmon, J. H. M., 231n.75
see Rebellion Salzman, L. F., 34n.3
Rhetoric, 1, 3, 21, 32 Sanctuary, Privilege of, 150–51, 155
and debate, 23 abolishment of, 164n.33
and education, 21–24, 29–30 Satire, 53
epideictic: by Sir Alexander Iden in and Robert Devereux, 185–86,
2 Henry VI, 82–83, 85, 88n.2 188n.36
figures of, 10, 24–25, 28–29, 56n.38 Saunders, Ann, 140n.14
forensic: see Oratory Saunders, Claire, 162n.2, 163n.16
and impersonation, 22 Scafuro, Adele, 158, 165n.59
and inventio, 10 Schaffer, Simon, 264n.20
Shakespeare’s skepticism Schiffhorst, Gerald J., 228n.21
concerning, 34 Schlatter, Richard, 75, 89n.8
and virtue, 33 Schmidt, Alexander, 72n.32
Richard II Schmitt, Carl, 241–43, 248n.21
Edward Hall on, 221 Schnell, Lisa, 265n.29
Risk Schoeck, Richard, 35n.8, 37n.45
see Probability Schwab, George, 248n.21
Riss, Arthur, 239, 243, 247n.8, n.14, Schwarz, Marc L., 35n.7
248n.27 Science, 145
Rix, H. David, 36n.19 and natural law, 15, 252
Robsart, Amy, 106n.9 Scot, Reginald
mysterious death of, 149 Discoverie of Witchcraft, 48–49
Roman law Scotland, 9
see Law, types of foundational myth of monarchy,
Rose, Mark, 55n.22, 56n.38 215–16: in Macbeth, 216–217,
Rose, Mary Beth, 227n.16 223
Index 283
Scotland – continued The Taming of the Shrew, 97, 181

tradition of rebellion against The Tempest, 130, 136
tyranny, 221–22 Titus Andronicus, 10, 38–54
Scott, William O., 10, 11, 72n.23, Troilus and Cressida, 208
n.33, n.34, n.35 Twelfth Night, 95, 108n.32, 136
Scott, William R., 139n.9 Two Gentlemen of Verona, 94
Sedge, Douglas, 69n.3 The Winter’s Tale, 136, 253
Seidel, Michael, 139n.13 Shapin, Steven, 264n.20
Seisin Shapiro, Barbara, 37n.46, 165n.51
see Property Sharpe, J. A., 56n.31, n.44
Seizure Sharpe, Kevin, 90n.25, 226n.2, 228n.21
see Property Shell, Marc, 127, 129, 139n.6
Selden, John, 221 Shelley’s Case, 30
on Chancery, 52 Sheppard, Steven, 37n.59
Select Cases of Defamation to 1600, Short, Charles, 36n.20
187n.13, n.14 Shuger, Debora, 217, 230n.58, n.59,
Seneca the Elder 263n.2, 264n.5
Controversiae, 23 Sibbet, Trevor, 140n.14, n.16
Sententiae, 24 Sidney, Lady Mary (Countess of
Shakespeare, William Pembroke)
All’s Well That Ends Well, 95, 208 “Dialogue Between Two Shepherds
As You Like It, 11, 73, 77, 79, 83, 85, in Praise of Astraea,” 55n.19
87–88 Sidney, Sir Philip, 24, 54
The Comedy of Errors, 95 Defence of Poesie, 200
Coriolanus, 235–46 Siemon, James R., 64, 71n.13, n.16,
Cymbeline, 254 72n.24
Hamlet, 189–205 Simpson, A. B. W., 17n.6, 65, 70n.9,
Henry IV, 7 72n.27, 115, 126n.28, n.29
1 Henry VI, 217 Simpson, Evelyn, 36n.35
2 Henry VI, 1, 11, 13, 68, 73–88, Simpson, Percy, 36n.35
143–62 Sinfield, Alan, 208, 226n.2, n.4
Julius Caesar, 27 Singh, Jyotsna, 97–98, 107n.11, n.14
King Lear, 29, 68, 94, 208, 250 Slade’s Case, 30, 37n.47
Love’s Labor’s Lost, 95 Slander, 9, 13–14, 16n.5, 85, 168n.1,
Macbeth, 14, 208–26 186n.6, 187n.18, n.29, 262–63
Measure for Measure, 1, 15, 20, 95, Coke’s defense of Edmund Denny,
208, 249–63 186n.1
The Merchant of Venice, 1, 11–12, 20, and imagination, 172, 174–75
92, 97–124 De Libellis famosis, 1606, 186n.3
The Merry Wives of Windsor, 108n.24 and marriage prospects: in Davies v.
A Midsummer Night’s Dream, 95 Gardiner, 167–69
Much Ado about Nothing, 13, 53, 95, in Much Ado about Nothing, 167–86
167–86 remedies for: public penance, 170,
Othello, 11, 12, 28, 92, 96–97, 181
100–108, 131, 136, 138 requiring malicious intent, 170
Richard II, 10, 20, 58–69, 221 requiring utterance before “persons
Richard III, 28–29 whose good opinion was worth
Romeo and Juliet, 44, 95, 96, having,” 170
247n.10, 251, 260 see also Libel
284 Index
Sloane, Thomas O., 35n.10 Dialogue between Pole and Lupset,

Smith, Alan G. R., 228n.21 75–80, 83, 85, 88, 89n.11–n.18,
Smith, Irwin, 34n.3 n.20–n.21, 90n.23
Smith, Logan Pearsall, 229n.35 Statutes
Smith, Molly, 55n.22 13 Eliz.c.5, 91, 92
Smith, Sir Thomas 27 Eliz.c.4, 91, 92
The Commonwealth of England and the 7 Henry VI, 194
manner of government thereof (De 11 Henry VII c.20, 194, 196–97
Republica Anglorum), 4–5, 17n.12, 1 Henry VIII c.7, 164n.35
n.13, n.14, n.15, 210, 227n.14 Marian Bail and Committal Statutes
on Parliament, 5–6, 14 of 1555 and 1556, 154
Society of Jesus outlawing of bastardy in
torture of members under Elizabeth 1576, 168
I, 38 4, 5 Phil. & M.c.8, 92, 94, 96, 100,
Sokol, B. J. and Mary E., 16n.5, 105, 106, 108
19n.31, 63, 70n.6, n.9, 106n.5, 6 Rich.2.c.6, 92, 94, 100, 106
n.9, 107n.17, 108n.27, 124n.2, Statutes of the Realm, 206n.26
n.6, 125n.24, 126n.27 Steane, J. B., 36n.29, 231n.81
Sommerville, Johann P., 227n.6, n.7, Stein, Peter, 247n.11
228n.21, n.22 Stewart, William
Sophocles Buik of the Cronicis of Scotland,
Oedipus Rex: as an “analytic” plot, 145 230n.46
Sorge, Thomas, 247n.8 St. German, Christopher, 5
Southwell, Robert Dialogues in English between a Doctor
torture by Richard Topcliffe, 38 of Divinity and a Student in the
Sovereignty Lawes of England, 2, 111,
as beyond the law, 66, 208, 243 125n.10-n.18
as dependent on arms and law, on equity, 2, 111–14, 118
233–46 Stimpson, Catherine R., 55n.22
and theology, 251 Strier, Richard, 18n.25
see also Kingship; Monarchy; Studd, Richard
Parliament see Eyston v. Studd
Spanish Armada, 46, 49 Styles, Philip, 34n.3
Speculum Sacerdotale, 164n.31 Succession
Spedding, James, 54n.8, 246n.5, see Inheritance
265n.23, n.24, n.25, n.26, n.27 Suicide
Spelman, Sir John in Hamlet: of Ophelia, 14
Reports of Sir John Spelman, 164n.32, in Othello, 12
n.33 seizure of land for: except in cases
Spencer, Gabriel, 50 of madness, 204
Spenser, Edmund, 25, 33 see also Hales v. Petit
Faerie Queene, 187n.18 Sullivan, Garret A., Jr., 18n.22
Spinosa, Charles, 121, 124n.2, Sumptuary laws
126n.27, n.36 and Jack Cade, 74
Spinrad, Phoebe S., 178, n87n.26 Suzuki, Mihoko, 108n.22
Squibb, G. D., 246n.4
Star Chamber T. E.
see Courts The Lawe’s Resolutions of Womens
Starkey, Thomas Rights: or, the Lawes Provision for
Index 285
T. E. – continued Traitors
Women, 190, 194, 202, 206n.25, see Treason
207n. 48, n.49 Treason, 8, 220
Tailbois, William and Catholics, 38: The Babington
see Wimbish v. Tailbois Plot, 159; The Gunpowder Plot,
Tanner, J. R., 229n.31–n.33, n.36 21, 208, 214
“Tavern cases,” 9 in Coriolanus, 246n.4
Taxes execution for: William Laud, 51; Sir
in Richard II, 64 Thomas More, 227n.18
in Thomas of Woodstock, 59 in 2 Henry VI
Taylor, J. E., 108n.21 in Richard II, 63, 71n.18
Tedeschi, John and Anne, 163n.10 seizure of land for, 60
Tenure see also Rebellion; Tyranny
see Property Trenerry, C. F., 140n.15
Terence Trial
Phormia, 158–59 by battle: in Hamlet, 203; in 2 Henry
Thatcher, David, 163n.16, 165n.54 VI, 146
Thatcher, Oliver J., 247n.16 Tricomi, Albert, 56n.38
Thomas, Ronald R., 163n.11 Trousdale, Marion, 16n.4
Thomas of Woodstock, 59, 69n.3 A true and faithful relation of that
Thompson, E. P., 71n.14 Horrible Murder committed on the
Thompson, I. A. A., 70n.7 body of Mr. JOHN NEIL, Late
Thorne, Samuel E., 19n.36, 31, Stationer and Merchant of Glasgow
37n.52, 206n.15, 246n.2 in Scotland, 165n.46, n.47, n.48
“Three branches of action” Tully
see Hales v. Petit see Cicero
Thynne, Francis Turner, J. C., 55n.16
The Historie of Scotland, 215, 229n.43 Twyne’s Case, 99, 101
Tierney, Brian, 234, 247n.6 Tyranny
Tillyard, E. M. W., 18n.26, 148 in Coriolanus, 214–44
Topcliffe, Richard James VI and I on, 14, 222, 227n.11
as torturer of Catholics under in the Justinianic Code, 233–34
Elizabeth I, 38–40, 44–45, 48, 50 in Macbeth, 14–15, 223–34
Torture, 9, 54n.3, 150, 164n.29 in Marlowe’s Edward II, 221
Francis Bacon on, 39 and rebellion: Christopher Goodman
in controversia, 23, 23, 26 on, 220, 227n.11; Edward Hall
as exercised by Duke Humphrey in on, 221; Philippe du Plessis
2 Henry VI, 147–48 Mornay on, 220; Francis Thynne
and martyrdom, 10, 40 on, 215–16, 229n.43
as prealable in capital cases, 38 see also Rebellion
as revenge, 38–54
methods of: branding, 50–51; Umfraville v. Lonstede, 12, 116–17
dismemberment, 38, 47, 49; Urkowitz, Stephen, 162n.1
ear-cropping, 51; nose-slitting, Usher, Roland G., 37n.58
57n.49 Usury, 110
Tragedy and insurance, 138
2 Henry VI as “commonwealth”
tragedy, 146 Vengeance
of revenge: see Revenge, tragedy of see Revenge
286 Index
Vickers, Brian, 33, 35n.10, n.15, Wilson, Luke, 12–13, 16n.5, 140n.13,
36n.26, n.27, n.41, 37n.60, 141n.28, 199–200, 205n.2, n.7,
55n.28, 265n.22 206n. 38–42, n.44, 207n.46, n.55
Vinogradoff, P., 125n.16 Wilson, Richard, 54n.3, 55n.15,
56n.35, n.36, 88n.3, 89n.4, 184,
Waith, Eugene, 26, 37n.17, n.18, 163n22, 164n.24
36n.33, n.34 Wilson, Thomas
Walker, Alice, 35n.16 The Art of Rhetoric, 30
Walker, Garthine, 186n.6 The Rule off Reason, 16n.4, 30, 31,
War 37n.51, n.54
civil, 159, 224 Wimbish, Elizabeth
and the law of honor, 18n.22 see Wimbish v. Tailbois
suspension of law during, 15, Wimbish v. Tailbois, 14, 189–90,
233–46 194–97
Ward, Ian, 18n.24 Witnesses, 13, 135, 152, 156–57,
Ward, Jenny, 164n.27 164n.39, 261
Wardship bound to give evidence, 5, 151
and heiresses, 94–95 and error, 4
and property, 63 Wolffe, B. P., 71n.19, n.20
Warrant Women, 10, 23, 26, 35n.10, 153,
obtained by friends of John Neil, 216–18
155 as property, 92–106
Warren, Clyde T., 3 and right to property, 189–206
Warren, Roger, 162n.1, 163n.21, and slander, 169–86: defense
165n.63 against, 169; vulnerability in,
Waste 170, 175–76
see Property see also Property, rights to, of
Watkin, Thomas Glyn, 34n.4 women
Weatherly, Edward H., 164n.31 Wood, Ellen Meiksins, 70n.8, 71n.13,
Weber, Samuel, 248n.21, n.22 89n.3
Webster, Daniel Wood, Neal, 81, 89n.3, 89n.11,
Duchess of Malfi, The, 45 90n.24, n.30
Weinert, Friedel, 264n.11 Woodbine, George, 19n.36, 206n.15,
Weisberg, Richard, 6 246n.2
Wells, Robin Headlam, 18n.26 Woodbridge, Linda, 140n.13
Welsh, Alexander, 163n.11, n.14 Wright, Nancy E., 11, 16n.5, 89n.10
Wentworth, Peter Wrightson, Keith, 77, 89n.19
and House of Commons, 29 Wynne-Davies, Marion, 186n.6, 187n.2
West, William
The First Part of Symbolaeography, Yachnin, Paul, 18n.20
Which May be Termed the Art, or Yates, Julian, 206n.37
description, of Instruments and Year Books, 30
Precedents, 140n.14 Yonge, C. D., 257n.16, 248n.23
White, Edward J., 5
White, James Boyd, 6 Zagorin, Perez, 72n.36
White, R. S., 89n.9, 124n.6 Zilsel, Edgar, 254, 264n.11, n.17, n.19,
“Wilde Justice” n.21
see Revenge Zimansky, Curt A., 139n.7
Willbern, David, 55n.22, n.24 Ziolkowski, Theodore, 57n.54, n.55,
Willcock, Gladys Doidge, 35n.16 112, 125n.19
Williams, Raymond, 250, 263n.3 Zwicker, Steven N., 226n.2

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The Law in Shakespeare

Constance Jordan and Karen Cunningham

The series Early Modern Literature in History is published in association with

Early Modern Literature in History

Notes on Contributors viii

1 English Law in Shakespeare’s Plays 1

2 Drama, Law, and Rhetoric in the Age of Coke

3 The Wilde Side of Justice in Early Modern

4 “Like to a Tenement”: Landholding, Leasing,

5 Cast out of Eden: Property and Inheritance in

6 Avoiding the Issue of Fraud: 4, 5 Philip &

7 Accomplished with What She Lacks: Law,

8 Drama and Marine Insurance in Shakespeare’s London 127

9 Noises Off: Participatory Justice in 2 Henry VI 143

10 Truth, Lies, and the Law of Slander in

11 The “Amending Hand”: Hales v. Petit, Eyston v. Studd,

12 Macbeth: Absolutism, the Ancient Constitution,

13 Arms and Laws in Shakespeare’s Coriolanus 233

14 Measure for Measure and the Law of Nature 249

Thomas C. Bilello’s “Accomplished with What She Lacks: Law, Equity,

Thomas C. Bilello is an attorney with Pacific Life Insurance Company

Allen D. Boyer is a lawyer in New York City. He serves on the advisory

A. R. Buck teaches law at Macquarie University, Australia. He is the

Dympna Callaghan, Dean’s Professor in the Humanities at Syracuse

Cyndia Susan Clegg, Distinguished Professor of English at Pepperdine

Karen Cunningham is a lecturer in Shakespeare and Early English

Studies, Renaissance Drama, and the Blackwell Shakespeare companion

Elizabeth Hanson is Associate Professor of English at Queen’s

Peter C. Herman is Professor of English and Comparative Literature at

Lorna Hutson is Berry Professor of English Literature at the University

Constance Jordan is Professor Emeritus of English at Claremont

Chris R. Kyle is Associate Professor of Humanities in the History

Rebecca Lemon, Associate Professor of English at the University of

in Theatre Journal, Studies in English Literature, The Huntington Library

Charles Ross is Professor of English and Chair of the Program of

Carolyn Sale is Assistant Professor of English Literature at the

William O. Scott is Professor of English at the University of Kansas. His

Luke Wilson is Associate Professor of English at Ohio State University.

Nancy E. Wright is Professor of Humanities and Languages at the

The essays in this collection proceed from a common assumption: that

by this popular agency, although it may not be directly dramatized.10

The accused then participates in the selection of the jury, choosing

This is to be understood, although it will seem strange to all nations

Shakespeare’s open-ended conflicts, his apparently deliberate refusal

take, the more generously they understand the function of law as

[I]t is also necessary to discuss how in matters criminal the laws of

Admittedly, Fortescue’s description is idealistic, and to Shakespeare’s

assumptions and practices. Reflecting the cultural turn in early modern

father Brabantio, her secrecy in the matter of the handkerchief defrauds

Macduff, who while horrified at the prospect of a tyrant, cannot quite

centuries of scholarly conversation, these essays aim not to silence but to

In 1601, in February half-light, England’s greatest common lawyer and

hearten a crowd at the Norfolk assizes, he echoed the long patriotic

This royal throne of kings, this scept’red isle,

Rhetoric and the Tudor curriculum

the five parts of an oration.10 In these circumstances, as C. S. Lewis

Elizabethan thinkers must be pictured growing up from boyhood in a

Impersonation may also be employed with profit in such passages,

The Ad Herennium treated such subjects more extensively. Under notatio,

A youth, captured by pirates, wrote his father for a ransom; no ran-

The topics of the Controversiae were familiar in the grammar schools. To

Humanist teachers required that their pupils keep notebooks,

[T]he death of Socrates provides not only an exemplum that death