Last Updated on May 5, 2015, by eNotes Editorial. Word Count: 729
Law and Justice
The intertwined concerns of human law and providential justice figure prominently in Shakespeare's dramas, regardless of genre, and have elicited considerable critical commentary in the late twentieth century. Legal conflict frequently appears in the comedies, romances, and problem plays, often leading to formal or mock trials of thematic significance. The use and abuse of law also abounds in the histories, and emerges in the tragedies, where the transcendental forces of justice dictate the outcome of human disputes. Overall, the sheer weight and diversity of legal terminology in Shakespeare's works has resulted in multiple lines of scholarly research on the topic. Commentators have considered allusions to the contractual obligations of marriage in the comedies; to the legalities of property, authority, and succession in the histories; and to the fallibility of worldly judgment in the problem plays and tragedies. This last subject, critics note, has tended to summarize Shakespeare's principal interest in human law as a flawed reflection of divine justice, which may only be redeemed when tempered with mercy.
Trials provide the centerpiece of any discussion of law in Shakespeare's dramas. This is no more apparent than in The Merchant of Venice, a work frequently cited by critics for its legal implications. Particular interest has tended to center on Antonio's trial, prompted as it is by Shylock's vengeful demand for a pound of flesh in exchange for the merchant's unpaid debt. In discussing the play, many critics have emphasized the legal acumen of (in the guise of the male law clerk, Balthasar) and the dynamics of courtroom persuasion featured in her often-quoted mercy and justice speech. Jay L. Halio (1993) represents such commentators, who laud Shakespeare's skillful dramaturgical use of the trial scene in The Merchant of Venice to demonstrate the theme of vengeance thwarted and justice achieved through mercy. Daniel Kornstein (1993) offers a complementary view of the play, seeing The Merchant of Venice as a legal parable that hinges on the subject of rigid versus flexible interpretations of law. Stephen A. Cohen (1994) considers the cultural contexts of this drama by focusing on the ideological threat that Shylock, as an outsider, presents to the aristocratic authority of Venice and by studying the use of law as a tool of social oppression.
Other formal and quasi-trials are represented elsewhere in the comedies, romances, and problem plays. Measure for Measure, among the problem plays, offers a legal framework and, according to John D. Eure (1975), expresses Shakespeare's statement on the limitations and competence of law. Employing an abstruse edict that invokes the death penalty for fornication, Measure for Measure dramatizes the folly of legal systems that seek to adjudicate human imperfections. The formal trial of Hermione in Act III of The Winter's Tale represents a similar treatment of the legal motif in Shakespearean drama. David M. Bergeron (1984) argues that the trial highlights the forces of irrationality, jealousy, and caprice that operate in any practical system of laws, and which may align to hinder justice.
While several of the darker implications of the law raised by the comedies and problem plays are resolved in some fashion within these dramas, Shakespeare's histories and tragedies offer a more critical vision of worldly justice. The question of legitimate authority and legal succession lie at the heart of most of the histories, which tend to display brutal miscarriages of justice and bold abuses of law. The plays of the Henriad contain numerous examples, as does Richard III, a drama that William C. (1992) claims encapsulates the relationship between law, succession, ritual, and hypocrisy. Carroll examines Richard's murderous violation of Natural Law in his attempt to win succession to the English throne. Obeying "the form of law" in word but not action, Richard demonstrates the susceptibility of legal authority to betrayal and treachery.
Critics have also noted that transgressions of Natural Law and their consequences are well-illustrated in the tragedies, principally King Lear. Janet M. Green (1995) views King Lear as both Shakespeare's recapitulation of the faults of the Jacobean legal system and his evocation of divine justice in the mode of Christian Last Judgment. Similarly, R. S. White (1996) provides a detailed study of the dramatic encounter between Natural Law and the corruption of worldly authority in King Lear. Among the other plays featuring similar themes, Hamlet and Macbeth generally draw the attention of critics interested in the interplay of justice, revenge, and the dynamics of violent political succession.
Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 13820
John D. Eure (essay date 1975)
SOURCE: "Shakespeare and the Legal Process: Four Essays," in Virginia Law Review, Vol. 61, No. 2, March, 1975, pp. 402-33.
[In the following excerpt, Eure surveys themes of justice and law in Shakespeare's The Merchant of Venice, Measure for Measure, and King Lear.]
The Merchant of Venice
The Merchant of Venice is the one Shakespearean play that, for better or worse, has come to the attention of nearly every lawyer, and especially every lawyer who writes about Shakespeare and the law.22 In dealing with the familiar plot of this play, lawyers have understandably tended to emphasize that portion revolving around the trial of Antonio. This selective emphasis has caused most lawyer-critics, I think, to misinterpret the role of law in the play. It is perfectly valid to concentrate on the play's legal aspect, but in order to appraise it clearly, one must read the legal values expressed in terms of the larger scheme of the play.
Before examining the trial, it will be useful to look briefly at the contrasting characterizations of Shylock and Antonio. To a twentieth century audience, the insistence on Shylock's Jewishness is extremely unsettling, and may make the play unperformable in the terms in which Shakespeare wrote it. The Elizabethans, however, saw in Shylock a type of grotesque familiar from the medieval English stage; "Jew" was a moral metaphor embodying attributes contradictory to the Christian view of the universe. Shylock is frequently associated with the devil, a characterization derived directly from the medieval drama.23 In his insistence on judgment according to the strict letter of the law, he represents the law of the Old Testament, the lex talonis, as opposed to the New Law of Christian mercy and forgiveness.24 In terms of the human relationships established in the play, Shylock is deserted first by his servant, Launcelot Gobbo, and then by his daughter Jessica. Antonio, in contrast, is consistently depicted as one who lives to benefit others, and for whose welfare others are solicitous. The opening scene of the play reveals a crowd of friends trying to ease his melancholy. He gives friendship easily, and therefore receives it, as most clearly appears in his relation to Bassanio, for whose happiness he enters the bond with Shylock. Bassanio describes him as
[t]he dearest friend to me, the kindest man,
The best-conditioned and unwearied spirit
In doing courtesies, and one in whom
The ancient Roman honor more appears
Than any that draws breath in Italy.
The contrast between Shylock and Antonio is emphasized by their actions within the explicitly commercial atmosphere of Venice. Shylock, a "breeder of barren metal," lends money for interest. Although the law allowed the charging of interest in Elizabethan England, and the government dealt, as all trading nations must, in international money markets,25 popular sentiment retained the medieval Christian bias against making money by money; usury was evil. The usurious and miserly Shylock, the representative of that part of the commercial community that does not know how to use money for the improvement and enjoyment of life, reacts characteristically when Jessica elopes with a Christian, taking some of the family riches with her:
Two thousand ducats in that, and other precious, precious jewels. I would my daughter were dead at my foot; and the jewels in her ear! Would she were hearsed at my foot, and the ducats in her coffin!
Antonio, the merchant of the play's title, uses his wealth for human ends. He has lent much money to Bassanio already, and he gladly lends more: "My purse, my person, my extremest means / Lie all unlocked to your occasions." (Li. 138-39) His generosity in often saving debtors from Shylock's forfeitures (III.iii.22-23) exacerbates Shylock's hatred:
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.
Portia, too, we may note in passing, is characterized partly by her attitude toward money and its use. Her liberality with her great wealth in aid of Bassanio and his friends matches that of Antonio.26 A further, otherworldly, dimension of Portia's character, however, contrasts explicitly with the frequent identification of Shylock with the devil and foreshadows Portia's role as the advocate of mercy. This dimension appears in a description given by Jessica in the scene immediately preceding the trial:
(Bassanio) finds the joys of heaven here on earth,
And if on earth he do not merit it,
In reason he should never come to heaven.
Why, if two gods should play some heavenly match
And on the wager lay two earthly women,
And Portia one, there must be something else
Pawned with the other, for the poor rude world
Hath not her fellow.
This too hurried summary has been designed to point out some of the resonances the principal participants in the trial carry with them into their encounter with the legal process. When Shylock repeatedly demands "the law," "justice" and the penalty set forth in his bond, his demand does not spring from that "impartial conduct of the soul," that "truth and upright innocency" that motivated the Lord Chief Justice [in 2 Henry IV]. It is motivated instead by revenge and hatred. A basic similarity exists, however, between Shylock's claim and the Chief Justice's vision of justice, which was both morally "good" and politically expedient. In 2 Henry IV the "course of law" guards the "peace and safety" of the King and through him the entire social order. In The Merchant of Venice the enforcement of Shylock's claim, too, is insistently connected with the order and stability of the commercial state of Venice:
He plies the Duke at morning and at night,
And doth impeach the freedom of the state
If they deny him justice.
Solanio is certain that the Duke will halt the proceedings, but Antonio, the experienced businessman, replies:
The Duke cannot deny the course of law;
For the commodity that strangers have
With us in Venice, if it be denied,
Will much impeach the justice of the state,
Since that the trade and profit of the city
Consisteth of all nations.
Shylock in the trial repeats the connection:
I have possessed your Grace of what I purpose,
And by our holy Sabbath have I sworn
To have the due and forfeit of my bond.
If you deny it, let the danger light
Upon your charter and your city's freedom!
This "freedom" of contract, the "freedom" to bind oneself irrevocably to the performance of certain conditions, forms the foundation of a successful commercial state. Antonio recognizes that "no lawful means" (IV.i.9) can rescue him from Shylock's clutches. The Duke, presumably the chief judicial figure in the state, is unable to prevent execution, and even Portia, once Antonio confesses the bond, admits Shylock's unchallengeable right to execution of the penalty.
That in the end Shylock's plea to political expediency does not prevail, that his downfall does not "impeach the freedom of the state," summarizes the differing roles of law in 2 Henry IV and The Merchant of Venice. The history is above all a political play, a prologue to Shakespeare's celebration of England's political golden age in Henry V. The paramount importance of establishing a legitimate and lasting rule quite predictably finds partial expression in an idealized vision of human justice. As I [have elsewhere] attempted to suggest, however, even in 2 Henry IV Shakespeare could not participate fully in his intellectual ideal; the emotional core of the play rests in the more humane and down-to-earth world of Falstaff and Shallow. The Merchant of Venice is primarily concerned, not with the health of the state, but with the vitality of relationships between individuals that are at once more personal and more universal than the "state." The basis of the social order celebrated at the end of the play is not political and economic stability, but rather human compassion and love derived from divine love, and for which commerce and wealth, as I have suggested, are only metaphors. Unlike Henry's England, the state Shylock invokes is only a commercial city that commands no emotional allegiance. Similarly, Shylock's appeal to law as the mainstay of that state does not compel concern for the integrity of this commercial city; the continuing commercial viability of Venice is vindicated in the trial, but ultimately other issues command the play's intellectual and dramatic energies.
Still, within the play's own terms, Shylock's political self-justification carries weight. Bassanio offers three times the sum named in the bond, or, in the alternative, the forfeiture of his own life, in exchange for that of Antonio:
If this will not suffice, it must appear
That malice bears down truth. And I beseech you,
Wrest once the law to your authority.
To do a great right, do a little wrong,
And curb this cruel devil of his will.
PORTIA: It must not be. There is no power in Venice
Can alter a decree established.
'Twill be recorded for a precedent,
And many an error by the same example
Will rush into the state. It cannot be.
The argument, although persuasive through its own internal logic and a familiar one to all lawyers, must fail to convince us, the audience, as it fails to convince all the trial participants except Shylock. Although Shylock's plea is perhaps "just" within its narrow perception of the economic welfare of the state, a wider sense of justice is terribly offended at his crabbed legality. This wider sense of justice takes into account all of those resonances that the trial participants bring with them into the courtroom.
The problem may be rephrased in another manner. To a certain extent the legal system in The Merchant of Venice, the backbone of the commercial life of the city, does exist in isolation from moral concerns. The bond between Antonio and Shylock, the two men of commerce, typifies the entire structure of that commercial world, and the law is, if you will, the cement that gives the structure form and certainty. The play repeatedly recognizes, in the passages quoted above, the validity of a certain type of appeal for the law's protection, and indeed a necessity that the law respond. But the law as interpreted and enforced by the Duke, and the commercial relationship protected by this law, is simply inadequate to deal with the issues presented in the case of Shylock v. Antonio. Even Portia, disguised as a doctor of laws and armed with the advice of the learned Doctor Bellario, cannot find a legal basis to challenge the enforceability of the bond. The Duke has earlier asked, "How shalt thou hope for mercy, rend'Ring none?" (IV.i.88) and Shylock's response reveals a chasm between technical legality and morality: "What judgement shall I dread, doing no wrong?" (IV.i.89) In a narrow legal sense, he does no wrong. Measured by a higher law, however, his ruthlessness renders him liable to a judgment more terrible than any human judge can render. Portia's response to the unimpeachable legality of Shylock's claim is the famous plea for mercy, which focuses in the trial the religious and moral themes that have permeated the play. Even this plea acknowledges that the law, as a system of rules by which the state defines itself, must enforce the bond unless mercy, a higher law, moves the plaintiff to relinquish his claim:
The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
It blesseth him that gives and him that takes.
'Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this scept'Red sway;
It is enthroned in the hearts of kings;
It is an attribute to God himself,
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though Justice be thy plea, consider this:
That in the course of justice none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea,
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.
The law is here equated, as it was in the exchange between the Lord Chief Justice and Henry V, with earthly order and authority. Mercy belongs to an order apart from and above this merely temporal power. It ties human affairs into the New Law, the Christian ideal of grace by which mortals ultimately hope to be judged. But this is a concept that the human law of commercial Venice evidently cannot comprehend. Perhaps there are sufficient practical reasons embedded in the commercial well-being of the state to preserve this human law for administering mundane affairs. Certainly Antonio seems to feel that the Duke's inability to "deny the course of law" is acceptable for the maintenance of the "trade and profit of the city." But as valid as this law may be in the limited sphere of commercial regulation, it is totally inadequate for dealing with this situation. We cannot escape the conviction that this law ought to have built into it some mechanism for recognizing its own limitations.
Portia's solution, of course, is to go the strictly legalistic Shylock one better and apply the principle of strict construction to his bond. Although the law will allow him to exact his penalty, it will hold him to the express words—"a pound of flesh"—he used in formulating it. In a contest of cleverness, Shylock has been outdone. "For, as thou urgest justice, be assured / Thou shalt have justice more than thou desir'st." (IV.i.313-14) Since Shylock has already refused in open court payment of the principal in lieu of the penalty, he cannot now have even this. Moreover, Shylock's preparations to carve up Antonio have rendered him liable under a statute against the attempted slaying of a citizen.27 This, and the strict construction of the bond, are admittedly pieces of legal sophistry, but they negate a threat to justice that should never have been possible in the first place.
The legal tricks by which Portia rescues Antonio and places Shylock under penalty of death are part of the legal system that has proven inadequate to its task so far. But to the extent that they are legal, they are hardly part of the ordinary working of that system. Neither the Duke nor Antonio saw any way the enforcement of the bond could be forestalled; only these bits of legal arcana rescued from oblivion by Bellario could accomplish this. They are delivered, we must remember, by an impostor whose qualifications are not legal, but nearly heavenly. Portia is the foremost of earthly women, who gives Bassanio the "joys of heaven here on earth." (III.v.69) She pronounces the judgment on Shylock that he richly deserves in terms of a higher moral law, and here the touted ideal of Christian mercy has a chance to display itself. Shylock, genuinely guilty, genuinely needs mercy, and it is given him. "That thou shalt see the difference of our spirit, / I pardon thee thy life before thou ask it." (IV.i.366-67) The Duke also remits the half of Shylock's goods that are forfeit to the state under the statute in exchange for a fine. Portia then asks, "What mercy can you render him, Antonio?" Antonio responds with a proposal that Shylock be given the use of all his money until his death, at which time it will all be conveyed by a deed of gift to Jessica and her husband.28 Shylock is in addition forced to become a Christian, an action that may seem singularly unmerciful to modern audiences brought up in an age of comparative religious toleration. But in the terms of the play, and of Elizabethan morality, Antonio is having supreme mercy on Shylock's soul by giving him a chance for salvation denied him as a Jew, by giving him a chance to escape the devil with whom he has been identified. We may note that the legal system is used to institutionalize this dispensation of mercy. Shylock's future use of his property is to be within the framework of legal trusts, and a deed recorded in court is to insure his testamentary beneficence to his Christian daughter and son-in-law. Portia instructs her clerk to draw up the deed, and immediately following the courtroom scene we see the deed about to be delivered for Shylock's signature.
Shylock has attempted to use the law for evil purposes and has nearly succeeded. When an appeal to a higher, divine law fails, human law is turned on its head through a bit of legal sleight-of-hand to dissipate the threat to Antonio. The higher law of mercy is then immediately applied to resolve the problem of how to punish Shylock, and to provide, through a judicious use of legal forms, for the well-being of Jessica and her husband. Human law alone has proven inadequate to the resolution of this particular disorder in the state. But perhaps the deepest insight that The Merchant of Venice offers from a legal standpoint is that human law is not an independent self-administering system that produces "justice" through some mechanical process. It is rather a tool, limited in scope, but powerful within those limits, which can be used by a variety of persons for a variety of ends. These applications of law have moral content measured by the moral character of those who apply it.
Once already in the play Bassanio has recognized this characteristic of the law—that it is a form capable of lending respectability and authority to virtually any substance:
So may the outward shows be least themselves;
The world is still deceived with ornament.
In law, what plea so tainted and corrupt
But being seasoned with a gracious voice,
Obscures the show of evil?
There is no vice so simple but assumes
Some mark of virtue on his outward parts.
Bassanio has to choose from three caskets—gold, silver, or lead—the one that contains Portia's likeness in order to win her for his wife, and this prompts his discourse on the frequent discrepancy between appearance and reality. This wider theme finds expression in the character of Shylock (cf. I.iii.93-98), in the whole series of scenes in which Portia's suitors choose caskets, and in the disguising of Portia and Nerissa, and the comic business that generates. In the context of the trial scene a variation on this theme yields the view of law we have been examining. Shylock's manipulation of the forms of strict legality nearly perpetrates gross injustice while the guardian and chief judicial authority of the state, the Duke, looks on helplessly. Antonio uses legal forms to confirm a beneficial distribution of wealth wrongfully gotten. And Portia, the representative of that higher order of justice to which human designs must always, in the end, conform, precipitates conformity in the dramatic present and prevents injustice from occurring in this particular comic environment through her use of a bit of legal sophistry. While the commercial laws of Venice have some outward "mark of virtue," the values that Portia represents transcend the commercial world and the law that supports it. They derive from a system of justice infinitely more comprehensive than human legality, but they must manifest themselves in human affairs through an essentially human response to human needs that is patterned after the divine mercy that has redeemed us though "in the course of justice none of us / Should see salvation." Although human law has a proper and necessary function in ordering human society, justice cannot be achieved merely through the mechanical application of the forms of that law; justice derives from the operation of a higher law motivating those who use human law.
Measure for Measure
Of all of Shakespeare's plays, Measure for Measure is the most thoroughly legal in its basic framework and in its concerns. The plot hinges on the sudden revivification, after a lapse of nineteen years, of a law imposing the death penalty on persons convicted of fornication. The sexual offense symbolizes all human imperfection and the particular law to be enforced exemplifies the legal system's all too frequent tendency to over-react in dealing with the constant fact of human imperfection. The play contains many perplexities, some of which may stem from textual imperfection, and it has occasioned much perceptive scholarly debate.29
As was the case with The Merchant of Venice, the legal issues are intricately woven into the entire fabric of the play, so that to separate them necessarily distorts the work. Several themes familiar from The Merchant of Venice reappear. We confront once more the problems of the need for consistency in the law, the role of mercy, and the possibility for humanizing influences in the application of the law. In a sense the play places characters whose concepts of the legal system are as crabbed and distorted as Shylock's in the judge's seat, and dramatizes the learning process that was imposed on Shylock by fiat at the end of the trial scene. While there are similarities between the two plays, Measure for Measure deals with two legal issues in more detail than did The Merchant of Venice: the nature and competence of the law as an institution and the nature of the judge-figure.
A statute imposing the death penalty for fornication may seem absurd to modern audiences,30 but both historical data and intrinsic evidence support the possibility, if not the reasonableness, of the legal situation that obtains in Vienna at the beginning of the play. The control of sexual conduct by civil authority provided a subject for continuing debate in Elizabethan times, and from at least 1550 the Puritan faction of the Anglican church had been advocating the death penalty for fornication and adultery. In fact, in 1650, the Puritan government of the Commonwealth actually put such a law on the books. Before that, the only sexual crimes classified as capital offenses were rape, buggery, and carnal abuse of a female under ten years of age. Other sexual offenses were punished by the Ecclesiastical Courts, usually with fines or public penance.31 When we find young Claudio sentenced to death for impregnating Juliet, we should be aware, as Shakespeare's audience was, that while Claudio's offense was not capital under Elizabethan law, amendment was certainly not unthinkable.
With this background in mind, we may more fruitfully examine the opening legal situation. The play opens as the Duke relinquishes for an indefinite period his control over Vienna to Angelo, an inexperienced young man of, apparently, scrupulously moral character. Old Lord Escalus, appointed second in command, vouches for Angelo's fitness for the office. (I.i.22-24) The power transferred by the Duke seems unlimited:
For you must know, we have with special soul
Elected him our absence to supply,
Lent him our terror, dressed him with our love,
And given his deputation all the organs
Of our own power.
Hold therefore, Angelo:
In our remove be thou at full ourself.
Mortality and mercy in Vienna
Live in thy tongue and heart.
Your scope is as mine own,
So to enforce or qualify the laws
As to your soul seems good.
Terror—love, mortality—mercy, enforce—qualify: these oppositions suggest a balancing process, a mediation between opposing forces, an avoidance of extremes. To them may be added tongue—heart, a distinction that proves crucial as the play progresses. Angelo is instructed to balance these contending forces "as to [his] soul seems good,"—not to his reason, or to his judgment, but to his soul, an explicit indication that there is a moral dimension in the conduct of government that necessarily derives from the essential nature of the governor. This is not a new concept for Shakespeare; we have met it already in the Lord Chief Justice's assertion that his judgment was guided by the "impartial conduct of [his] soul." (2 Henry IV, V.ii.36)
The Duke, as it turns out, has been concerned that the laws of Vienna have not been enforced:
. . . so our decrees,
Dead to infliction, to themselves are dead,
And Liberty plucks Justice by the nose;
The baby beats the nurse, and quite athwart
Goes all decorum.
He has turned the government over to Angelo at least in part to reestablish the strict rule of law without himself seeming tyrannous or arbitrary. Angelo chooses to revive the long-dormant law against fornication, and to condemn Claudio to death as an example to all of the law's new strictness. But the statute cannot justly be applied to Claudio, if indeed it can be applied justly at all. He and Juliet have entered into a marriage contract that both the church and the state in Elizabethan England recognized as binding, and their marriage lacks only the transfer of the dowry and a final public confirmation to be fully effective. While Claudio is technically guilty of a violation, both Elizabethan custom and the position of one side in the church's continuing dispute about the status of a contracted marriage seem to have sanctioned his enjoyment of the physical pleasures of marriage.32 In the source for Measure for Measure, Claudio's counterpart commits rape. Shakespeare has clearly chosen to mitigate the circumstances of his crime as much as possible while leaving it subject to the letter of the statute.
Regardless of the realistic Elizabethan status of Claudio's offenses, several characters in the play express an opinion about his offense, and the comments cover the spectrum. Claudio's sister, the saintly Isabella, who is preparing to enter an exceedingly strict convent, reacts with moralistic self-righteousness: "[it] is a vice that most I do abhor, / And most desire should meet the blow of justice." (II.ii.29-30) Lucio, the resident rake, flippantly calls it "a game of tick-tack" (I.ii.185), and it is "[g]roping for trouts in a peculiar river" (I.ii.86) to Pompey the bawd. Each of these views is a bit partisan, but the judgment of the Provost (jailor), who is consistently depicted as wholly admirable, humane, and clear-headed, seems to strike the proper balance: "a young man / More fit to do another such offense / Than die for this." (II.iii.13-15)33
The play is not, however, neutral on the issue of sexual incontinence. The Duke frequently expresses concern about the effects of sexual license. (See, for instance, II.iii; II.iv.26-34; III.i.17-41; and III.i.94.) The law, while unwisely applied in this particular case, and unreasonably harsh as a general matter, does represent a serious attempt to deal with a serious problem. Were this not the case, Claudio's initial acceptance of a certain justice in his condemnation (I.ii.118-19), Isabella's acceptance of his supposed execution in the final scene (V.i.444-45), and the vacillation of Escalus, who recognizes both the injustice of Claudio's conviction and a certain necessity for strict enforcement of the law (see II.i.4-16; II.i.64; III.ii.234-38), would be themselves absurd. Claudio's eventual deliverance would become no more than the most elementary and obvious justice, and Isabella's agony over whether to sacrifice her chastity in return for her brother's life would be empty puffing about a non-issue. Clearly chastity, or at least a reasonable control of the sexual drive, is valued highly, and the harsh law Angelo chooses to enforce is an extreme manifestation of a legitimate concern.
In a slightly different sense, however, Angelo's law is "absurd" in that in essence it punishes people for being human and for having fundamental human drives. The several overtly comic scenes involving Lucio, Pompey, and Mistress Overdone, the bawdy-house keeper, make it clear that thorough enforcement of such a law would depopulate the city in short order. This exchange between Pompey and Escalus puts the issue most succinctly:
PMPEY: Truly, sir, I am a poor fellow that would live.
ECALUS: 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. If your worship will take order for the drabs and the knaves, you need not to fear the bawds.
ESCALUS: There is pretty orders beginning, I can tell you; it is but heading and hanging.
POMPEY: If you head and hang all that offend that way but for ten year together, you'Ll be glad to give out a commission for more heads. If this law hold in Vienna ten year, I'Ll rent the fairest house in it after three-pence a bay; if you live to see this come to pass, say Pompey told you so.
Pompey is right, and at the core of the problems of government the play explores will be the dilemma of establishing a livable relation between elemental human nature and a society ordered by law. That the law takes upon itself to forbid something does not by any means settle the question. Severely repressive law, although usually "absurd" in this sense, and usually doomed to failure as is Angelo's law, is a familiar phenomenon, and there have been periods in our legal history characterized by a similarly strict theory of criminal law.34 Shakespeare gives us, in essence, a plausible laboratory test of this type of law being administered at the farthest reach of its technical scope. This particular law deals with an element so basic to human character that all levels and types of characters can be vitally involved in the resolution of the issue. The testing is all the more interesting because of the nature of the judge who is also being tested.
As Angelo takes over the rule of Vienna, we know only that he seems virtuous and that his ability to govern is untested. (I.i.47-50) In I.ii Claudio's arrest is reported first in comic terms that deflate the solemnity of the passage of the reins of government in the preceding scene; the net effect so far has been to arrest a man for "groping for trouts," and to order all bawdy houses to be shut down, except for those in the city proper, which have been spared by the intervention of an influential businessman. (I.ii.82-100) So much for the initial wielding of "mortality and mercy in Vienna." The tone changes quickly, however, with the appearance of Claudio being led to prison as a public spectacle. (I.ii. 112-15) However comic the situation may appear in the abstract, Claudio is in grave jeopardy of losing his life, and Angelo's experiment in law enforcement raises serious questions about his ability to govern:
And the new deputy now for the Duke—
Whether it be the fault and glimpse of newness,
Or whether that the body public be
A horse whereon the governor doth ride,
Who, newly in the seat, that it may know
He can command, lets it straight feel the spur;
Whether the tyranny be in his place,
Or in his eminence that fills it up,
I stagger in—but this new governor
Awakes me all the enrolled penalties
Which have, like unscoured armor, hung by th' wall
So long that nineteen zodiacs have gone round
And none of them been worn; and for a name
Now puts the drowsy and neglected act
Freshly on me: 'Tis surely for a name.
"Tyranny" is strong language, but its application to Angelo's actions is ultimately justified.
The Duke, too, has doubts about Angelo's reaction to power that he expresses to the friar from whom he borrows a habit:
Lord Angelo is precise,
Stands at a guard with envy; scarce confesses
That his blood flows, or that his appetite
Is more to bread than stone. Hence shall we see,
If power change purpose, what our seemers be.
"Precise" means morally or religiously scrupulous. Angelo is a type of puritan who directs all his energy toward surpressing natural human instincts and toward enforcing an excessively rigorous morality for himself and, given political power, for those around him. Seen in this light, his decision to enforce a law against sexual license becomes easy to explain, and the resulting situation provides an especially appropriate test case for his whole approach to human nature.35 The puritanical person either is ignorant of the complexity of human nature, or has repressed much of that nature in the interests of some abstract system of conduct. In his cold, mechanical, and restricted view of allowable human response, he shows that he does not understand his own humanity. Angelo is just such a repressed type: ". . . one who never feels / The wanton stings and motions of the sense, / But doth rebate and blunt his natural edge / With profits of the mind, study and fast." (I.iv.58-61)
Angelo's repression of part of himself represents one aspect of a wider concern in the play that may perhaps best be expressed in the phrase "know thyself." Angelo does not know himself, and during the course of the drama he will be forced to acknowledge and deal with facets of his nature that are common to all humanity. Isabella, too, eventually overcomes her almost pathological revulsion from the sexual part of her nature; there is something nearly hysterical in her reaction to Angelo's proposition, and in her rejection of her brother's very human pleas for life: "Then, Isabel, live chaste, and, brother, die: / More than our brother is our chastity." (II.iv.184-85) Her original solution had been withdrawal from the world into the convent of Saint Clare, whose votaries are severely restricted even in the most innocent contact with men. (I.iv.7-14) The necessity of pleading for her brother's life puts her ideas to as severe a practical test as Angelo's, and in the end she rejects her ascetic ideals in favor of life in the world as the Duke's wife. Escalus describes the Duke as "[o]ne that, above all other strifes, contended especially to know himself." (III.ii.218-19) In a curious exchange with the friar near the beginning of the play, the Duke appears to have been asked whether he has disguised himself in order to seek a wife or a lover. We do not hear the precise question, only the Duke's answer:
No, holy father, throw away that thought;
Believe not that the dribbling dart of love
Can pierce a complete bosom;
But when, at the play's end, the Duke proposes to Isabella, he has at least learned that he too is human to the extent that he can feel the "dribbling dart of love," and perhaps in a wider sense he has learned something about his role as the personification of the state. As he pardons all offenders in turn, he seems to have rejected that strict justice that he wanted Angelo to impose at the beginning. He has learned the lesson that Pompey tried to teach Escalus, that human nature is stronger than law, and that for law to stand any chance of being practically effective, it must, somehow, be made to reflect the diversity and imperfection of the human situation.
Escalus, pleading for Claudio, suggests that Angelo, too, must have felt impulses like those for which Claudio stands condemned. Angelo's idea of justice, which appears unobjectionable and even admirable at first glance, has no room for such a notion:
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.
'Tis one thing to be tempted, Escalus,
Another thing to fall. I not deny,
The jury passing on the prisoner's life
May in the sworn twelve have a thief or two
Guiltier than him they try; what's open made to justice,
That justice seizes; what knows the law
That thieves do pass on thieves? 'Tis very pregnant
The jewel that we find, we stoop and take'T
Because we see it; but what we do not see
We tread upon, and never think of it.
You may not so extenuate his offense
For I have had such faults; but rather tell me,
When I that censure him do so offend,
Let mine own judgment pattern out my death
And nothing come in partial. Sir, he must die.
Angelo visualizes an objective, self-righteous justice that adheres rigidly to the letter of the law, and that focuses single-mindedly on a result without scrutinizing the means—the characters of the judge and jury—used to render this "justice." Escalus can only respond with an appeal to a higher judge: "Well, heaven forgive him, and forgive us all." (II.i.37)
Immediately following this solemn description of the legal process we are introduced to Constable Elbow, one of that tribe of malaproping officers of the law who inhabit Shakespeare's comedies. Elbow's entrance, dragging to justice Pompey the bawd, "a precise villain . . . void of all profanation in the world that good Christians ought to have," reasserts the comic context in which his fellow constables move, and which has been in danger of disappearing in Measure for Measure:
ANGELO: How now, sir, what's your name? And what's the matter?
ELBOW: If it please your honor, I am the poor Duke's constable, and my name is Elbow. I do lean upon justice, sir, and do bring in here before your good honor two notorious benefactors.
Angelo and Escalus attempt to interrogate the prisoners, and the "notorious benefactors" deny any wrongdoing.
ESCALUS: He's in the right. Constable, what say you to it?
ELBOW: First, an it like you, the house is a respected house; next, this is a respected fellow; and his mistress is a respected woman.
POMPEY: By this hand, sir, his wife is a more respected person than any of us all.
ELBOW: Varlet, thou liest; thou liest, wicked varlet. The time is yet to come that she was ever respected with man, woman, or child.
POMPEY: Sir, she was respected with him before he married with her.
ESCALUS: Which is the wiser here, Justice or Iniquity? Is this true?
ELBOW: O thou caitiff, O thou varlet, O thou wicked Hannibal! I respected with her before I was married to her? If ever I was respected with her, or she with me, let not your worship think me the poor Duke's officer. Prove this, thou wicked Hannibal, or I'Ll have mine action of batt'Ry on thee.
ESCALUS: If he took you a box o' th' ear, you might have your action of slander, too.
ELBOW: Marry, I thank your good worship for it; what is'T your worship's pleasure I shall do with this wicked caitiff?
ESCALUS: Truly, officer, because he hath some offenses in him that thou wouldst discover if thou couldst, let him continue in his courses till thou know'st what they are.
ELBOW: Marry, I thank your worship for it. Thou seest, thou wicked varlet, now, what's come upon thee; thou art to continue now, thou varlet, thou art to continue.36
Angelo has proclaimed that the laws must be strictly enforced and Elbow is attempting to do it, but his effort becomes a parodic version of Angelo's lofty theory. Elbow hardly understands the law he is enforcing, and, confused by his prisoner, he communicates what little he does comprehend in a series of malapropisms so outrageous that Escalus asks, "Which is the wiser here, Justice or Iniquity?" The setting is comic, but the question has serious implications for Angelo as well as for Elbow. Both are personifications of justice ("my brother justice have I found so severe that he hath forced me to tell him he is indeed Justice," (III.ii.237-38) says Escalus at one point), and as Elbow's inability to understand the law or speak plain English dooms his attempt to enforce the law, so Angelo's inability to understand human nature, and to account for this nature in his application of the law, also dooms his attempts at enforcement. Something of the absurdity of a "law against lovers," as one popular eighteenth century version of Measure for Measure was called, is clearly shown in Elbow's ridiculous efforts; iniquity is wiser than justice in recognizing the inevitability of human imperfection. But Angelo is not present to witness most of this comic lesson in law enforcement, nor to hear Escalus' pointed question. He has exited earlier in the scene with the remark that he hopes Escalus will "find good cause to whip them all." (II.i.130) Escalus does not accept this advice because he has a much wiser, more humane view of the law and his role as a judge. Instead, the "notorious benefactors" are dismissed with a stern warning, the appropriate remedy.
Angelo's own articulation of his view of law and justice is proven defective during his interviews with Isabella, who has come to plead for her brother's life. During the first exchange (II.ii) Angelo remains obdurate, although Isabella pleads for mercy in lines as eloquent as Portia's appeal to Shylock:
ISABELLA: Too late? Why, no: I that do speak a word
May call it back again. Well believe this,
No ceremony that to great ones 'Longs,
Not the king's crown, nor the deputed sword,
The marshal's truncheon, nor the judge's robe,
Become them with one half so good a grace
As mercy does;
If he had been as you, and you as he,
You would have slipped like him; but he, like you,
Would not have been so stern.
ANGELO: Pray you, be gone.
ISABELLA: I would to heaven I had your potency,
And you were Isabel; should it then be thus?
No, I would tell what 'Twere to be a judge,
And what a prisoner.
Lucio [aside to Isabella]: Ay, touch him; there's the vein.
ANGELO: Your brother is a forfeit of the law,
And you but waste your words.
ISABELLA: Alas, alas;
Why, all the souls that were were forfeit once,
And He that might the vantage best have took,
Found out the remedy. How would you be,
If He, which is the top of judgement, should
But judge you as you are? O think on that,
And mercy then will breathe within your lips,
Like man new made.
ANGELO: Be you content, fair maid,
It is the law, not I, condemn your brother;
Isabella's plea is as ineffective as Portia's because Angelo, like Shylock, is committed to a view of the law as an abstract process, final and absolute in its own right, a process independent of the character of its administrator. Shylock himself recognized that he pressed for the full penalty of the law out of hatred and a desire for revenge, but Angelo's rigor stems from no such personal enmity. He is, consequently, capable of a further misunderstanding of the law with which even Shylock cannot be charged: "Your brother is a forfeit of the law. . . ."; "It is the law, not I, condemn your brother; . . . " These statements do not recognize the possibility of a judge sympathetic to human imperfection, who interprets, modifies, and humanizes the application of the abstract law; instead they visualize a neutral judge who merely enforces absolute legal standards. And in an even grosser failure of self-knowledge, Angelo imagines his own will to have become identical with the supposedly external and abstract law: "Look what I will not, that I cannot do." (II.ii.52)
Isabella continues to plead for pity (mercy), and Angelo answers:
I show it most of all when I show justice,
For then I pity those I do not know,
Which a dismissed offense would after gall,
And do him right that, answering one foul wrong,
Lives not to act another. Be satisfied;
This familiar defense of a uniform and harsh application of the laws may be heard in modern courtrooms. Angelo's justifications—that the public needs protection from recidivism, and the offender benefits by being prevented from committing a second offense—are irrelevant as applied to Claudio, who has offended only with his contracted wife-to-be, and seems to present no danger to the public at large. But Angelo's defense of his actions is flawed in a more general sense in that it assumes the perfect wisdom that would justify the absolute power he wields, and allows for no degrees of punishment since it recognizes no degrees of guilt. He has, in other words, an unrealistic conception of the relation of law to life. Isabella is quick to point out the necessary imperfection of human justice, and the folly of Angelo's position from the perspective of divine wisdom:
So you must be the first that gives this
sentence, And he, that suffers. O, it is excellent
To have a giant's strength, but it is tyrannous
To use it like a giant.
Could great men thunder
As Jove himself does, Jove would ne'er be quiet,
For every pelting, petty officer
Would use his heaven for thunder,
Nothing but thunder. Merciful heaven,
Thou rather with thy sharp and sulphurous bolt
Splits the unwedgeable and gnarled oak
Than the soft myrtle; but man, proud man,
Dressed in a little brief authority,
Most ignorant of what he's most assured—
His glassy essence—like an angry ape
Plays such fantastic tricks before high heaven
As makes the angels weep; who, with our spleens,
Would all themselves laugh mortal.
Because authority, though it err like others,
Hath yet a kind of medicine in itself
That skins the vice o' th' top; go to your bosom,
Knock there, and ask your heart what it doth know
That's like my brother's fault; if it confess
A natural guiltiness such as is his,
Let it not sound a thought upon your tongue
Against my brother's life.
(II.ii.106-09, 110-23, 134-41)
Heavenly justice has the wisdom to discriminate between the "soft myrtle," Claudio, who merits only gentle correction, and the "unwedgeable and gnarled oak," the hardened offender, who needs harsher treatment. This human judge is ignorant of his own nature, his "glassy essence," but his stupid confidence in his own self-knowledge results in perverse decisions—"fantastic tricks"—that would be terribly funny were they not so terribly wrong. The comparison of perspectives—heavenly and earthly—on human judgments is analogous to the dramatic contrast that precedes this scene: Angelo's solemn certainty about the nature of justice followed immediately by a comic vision of justice in action. Isabella reveals another flaw in Angelo's vision. There is a paradox in the very nature of human authority that its possession renders those who have it less fit to govern; authority blinds its possessors to their kinship in imperfection with those who are to be judged.
Isabella attacks Angelo's abstract view of his role with two arguments. First, mercy is the greatest attribute of earthly rulers because it is the most God-like. Second, and apart from any congruence between heavenly and earthly judgment, a human judge ought to recognize inevitable human imperfection, and this recognition ought to breed humility and caution in the judgment process. A man who recognizes both arguments is truly the "man new made," a phrase that echos the "brave new world" of The Tempest, and that resonates with the central truth of the Christian faith, that God's mercy in atoning for man's sinful nature has allowed us to be reborn into everlasting life. This religious overtone leads us directly to Matthew 7:1-2, the text from which the title of the play is taken. But even without invoking theology, Isabella's two arguments have a great deal to say about the purely earthly administration of justice, and Angelo is moved by them. "She speaks, and 'Tis / Such sense that my sense breeds with it." (II.ii.141-42) He feels for the first time the sensual desire common to humanity, but ironically this newly awakened humanity impels him to attempt to use his authority to possess Isabella, rather than to practice Christian mercy by pardoning her brother for his transgression. In the first blush of his new passion Angelo does refute, however, his earlier argument about the nature of judges:
. . . O, let her brother live:
Thieves for their robbery have authority
When judges steal themselves.
At the beginning of the second interview with Isabella, Angelo confesses in soliloquy that his former confidence in his own virtue, and in his ability to judge rightly, has been profoundly shaken. He has tried to pray for guidance, but his imagination remains fixed on Isabella. The harmony between tongue and heart that the Duke enjoined in the opening scene (I.i.45), and that Isabella urged (II.ii.136-41), is no longer possible for Angelo. His "blood," a term meaning his passion, has overwhelmed his faculties of judgment and disabled them. He uses a revealing simile:
. . . and even so
The general, subject to a well-wished king,
Quit their own part, and in obsequious fondness
Crowd to his presence, where their untaught love
Must needs appear offense.
The "precise" Angelo of the first act scarcely confessed that his blood flowed (I.iii.51-53; I.iv.57-61); now it is a flood tide that downs all other concerns. In choosing to compare his present state to a political body in which some of the citizens are unruly, Angelo has already learned something essential about the place of the "blood" in human nature. As the above-cited passages indicate, Angelo, at the play's beginning, considered "blood" an outcast in the miniature society of his own being, to be ignored or repressed; in this simile it has taken on the character of a citizen with, presumably, a proper although subordinate place in that society. He now sees his problem as one of the rightful ordering of legitimate parts of human nature, not as one of driving out an invader.
The tyranny of authority is an issue that surfaces several times in the play. Claudio has charged Angelo with it (I.ii.158-66), as has Isabella (II.ii.107-09). When Angelo's new-found passion for Isabella provokes him to all too human vices, but not to a generous human pardon of Claudio, Isabella recognizes a special danger in authority that is not tempered by the recognition of human failing, but is rather ruled by those failings themselves:
O perilous mouths,
That bear in them one and the selfsame tongue,
Either of condemnation or approof,
Bidding the law make curtsy to their will,
Hooking both right and wrong to th' appetite,
To follow as it draws.
The Provost, one of those admirable peripheral characters in Shakespeare whose opinions are usually sure guides to proper audience reaction, calls Angelo a "bitter deputy" for his refusal to pardon Claudio. The disguised Duke replies ironically, since he already knows of Angelo's treachery:
Not so, not so; his life is paralleled
Even with the stroke and line of his great justice.
He doth with holy abstinence subdue
That in himself which he spurs on his power
To qualify in others. Were he mealed with that
Which he corrects, then were he tyrannous,
But this being so, he's just.
The burden of this discussion seems to be that authority, could it somehow be exercised by a perfectly wise and moral agent, would be "justified" in condemning humans according to the strict letter of the law. Not only is such a human judge impossible, however, but by the very nature of authority, power is wedded to the "will" and "appetite" of those individuals most subject to the corrupting influence of authority itself. Once again Pompey has hold of the truth of the matter:
'Twas never merry world since, of two usuries, the merriest was put down, and the worser allowed by order of law a furred gown to keep him warm; and furred with fox and lamb skins too, to signify that craft, being richer than innocency, stands for the facing.
The merry usury is sexual license or prostitution, and the worser is authority, supported by the law. The same corrupt humans may practice both, a fact to which the more splendid trappings of authority should not blind us.
When Angelo, after recognizing his own humanity in his passion for Isabella, proves yet more basely human in his attempt to have Claudio killed despite his agreement with Isabella, the disguised Duke must take a more direct hand and apply "[c]raft against vice." (III.ii.260) The convolutions of plot that issue in the final judgment scene are too complex to rehearse here. Angelo stands condemned by the "very mercy of the law" for the supposed treacherous killing of Claudio. Isabella enters with a cry for "justice, justice, justice, justice!" (V.i.25), but she is met by a plea for mercy from Mariana, Angelo's secret betrothed whom he has cruelly repudiated. Only when Isabella, moved by Mariana's forgiveness of Angelo, learns to pity his human frailty, only when she can yield to Mariana's plea and herself beg mercy for Angelo, is he pardoned. Despite Isabella's legalistic argument (V.i.439-50), Angelo deserves punishment more clearly than any other offender in the play. But Isabella and the Duke have learned that to fix norms of behavior in a personal code of conduct or in the law will not guarantee conformity to those norms, and that imposing the maximum legal penalty is rarely the appropriate response to a violation. The law can define desired behavior, but as an instrument for compelling that behavior it is too indiscriminating a tool to be used without great care. And it is definitely a tool, not the abstract Justice that Angelo first perceives, that must be applied by distinctly human judges. At worst it becomes the shield for iniquity used by Angelo. At best it must be used with a clear awareness of ubiquitous human imperfection and a tolerance for failings in others that are latent in ourselves. This tolerance cannot, of course, become a license for unrestrained wrongdoing; there is a genuine need for the "[c]orrection and instruction" that are to be administered to the recidivist Pompey. (III.ii.30-31) Moreover, as has already been pointed out, unrestrained sexual license does violate values that need protection. But in the end, given the fallibility of human judges, it is better to err on the side of leniency, than to condemn too quickly and too harshly a first failing. The ultimate judgment of God will mete out any punishment the guilty deserve. This is, perhaps, the meaning of the puzzling pardon given to Barnardine, the incorrigible murderer who outrageously refuses to allow himself to be executed:
There was a friar told me of this man.
Sirrah, thou art said to have a stubborn soul,
That apprehends no further than this world,
And squar'st thy life according. Thou'Rt condemned;
But, for those earthly faults, I quit them all,
And pray thee take this mercy to provide
For better times to come. Friar, advise him:
I leave him to your hand.
Barnardine is the extreme case. Angelo is more representative, and Mariana's plea for him expresses the wisdom the play teaches:
They say best men are moulded out of faults,
And, for the most, become much more the better
For being a little bad; so may my husband.
In the end the vices of humanity and the values that the law seeks to protect from those vices both remain. Although the Duke has not established the rule of law that he envisioned when he gave Angelo his commission, one critic has noticed that he has imposed another kind of order on society. The specific law against fornication cannot be too strictly applied without producing gross injustice, but the policy behind that law can be expressed and institutionalized in marriage, and thus we get four couples formed at the end—Claudio and his Julietta, Angelo and Mariana, Isabella and the Duke, and the unfortunate Lucio and Kate Keepdown.37 This form of the rule of law is much more humane and accommodating than the harsh command and harsher punishment of the "law against lovers." It is a rule of law that accommodates itself to the facts of human nature instead of attempting to eradicate them.
A Note on King Lear
In The Merchant of Venice and Measure for Measure Shakespeare dissects and examines human justice and authority in light of both human fallibility and that heavenly "justice" that is mercy. In The Merchant of Venice the law and its procedures prove too rigid and narrow to cope with the plight of Antonio, but the "rule of law," in form at least, maintains a precarious existence with the aid of some obscure legal knowledge and a liberal portion of divinely-inspired mercy and forgiveness. In Measure for Measure both the institution of law as a method for dealing with human imperfection and the judge who administers it falter under the test of actual experience; order is restored with the aid of a new judge who has learned the lesson of mercy, and the social institution of marriage assumes the function of ordering and restraining human vice.
Justice in a broad sense and the misuse of authority are also central concerns of King Lear. C. J. Sisson, in an interesting short essay on justice in the play,38 notes that in the opening scene Lear administers distributive justice in apportioning his kingdom among his three daughters according to their ostensible claims of merit. We may recall the eloquent defense in 2 Henry IV of justice as the "sword" of the state, the guardian of the King's person and the stabilizer of the realm. Justice was a manifestation of order, and the alternative was the civil war that wracked England both before and after the reign of Henry V. With the perspective of Measure for Measure on authority's potential for abuse, we see in King Lear the terrible consequences of the misapplication of the royal dispensation of justice. When Cordelia fails to praise Lear sufficiently, retributive justice is visited both upon her and upon Kent, who insists upon telling Lear that he is acting foolishly. As in the histories, civil war is one result, but the chaos and destruction wrought on the state, and on the judge who failed in his duty, are more profound and more terrible than anything found in the histories. This is in part because the tragedy is tightly focused on the effect of events on an individual, whereas the impact of the histories is in part diffused by a concern with a more impersonal and ongoing stream of history. But a more profound difference in the world of King Lear sets it apart from all three plays that have been examined so far. The general sense of divine guidance that oversees 2 Henry IV leads us to believe that God has willed Henry V's England. In both The Merchant of Venice and Measure for Measure the Christian world view, and specifically God's mercy on human sinfulness, present a pattern and an impetus for merciful dealings among the human characters. But King Lear takes place in a pagan setting, and the gods so often invoked lend no order and stability to the chaotic action of the play.
In the physical and psychological maelstrom into which Lear plunges, order is not to be found in human authority or human justice. Lear's exchange with Gloucester, who has, by this point, been blinded by Cornwall and Regan because of his loyalty to the old King, reveals the depths of Lear's disillusionment:
LEAR: . . . Your eyes are in a heavy case, your purse in a light; yet you see how this world goes.
GLOUCESTER: I see it feelingly.
LEAR: What, art mad? A man may see how this world goes with no eyes. Look with thine ears. See how yond justice rails upon yond simple thief. Hark in thine ear: change places and, handy-dandy, which is the justice, which is the thief? Thou hast seen a farmer's dog bark at a beggar?
GLOUCESTER: Ay, sir.
LEAR: And the creature run from the cur. There thou mightst behold the great image of authority—a dog's obeyed in office.
Thou rascal beadle, hold thy bloody hand!
Why dost thou lash that whore? Strip thy own back.
Thou hotly lusts to use her in that kind
For which thou whip'st her. The usurer hangs the cozener.
Through tattered clothes small vices do appear;
Robes and furred gowns hide all. Plate sin with gold,
And the strong lance of justice hurtless breaks;
Arm it in rags, a pygmy's straw does pierce it.
None does offend, none—I say none! I'Ll able 'em.
Take that of me, my friend, who have the power
To seal th' accuser's lips. Get thee glass eyes
And, like a scurvy politician, seem
To see the things thou dost not.
Marion Hope Parker has called these lines "the most passionate attack upon human justice ever made. . . .'39 If they are, they derive from and recall Shakespeare's other, milder, criticisms of human law and authority. "Which is the justice, which is the thief"—the lines echo Angelo's initial self-righteous declaration that criminality in the judge is irrelevant to justice, and his later realization that "thieves for their robbery have authority / When judges steal themselves." As a reductive vision of the corrupt "great image of authority," the "dog obeyed in office" recalls Isabella's "angry ape." The beadle lashing the whore after whom he lusts blends Angelo's lust for Isabella with the comic spectacle of Constable Elbow pursuing Pompey and the frequenters of Mistress Overdone's bawdyhouse, but the image has been reduced to its crudest form, deprived of both eloquence and comedy. The usurer hanging the cozener may be Shylock become a judge, the great thief judging the petty. And for Lear, as for Pompey the bawd, "robes and furred gowns" hide the vices of the "worser usury" while it persecutes the "merrier," whose lesser sins show plainly through "tattered garments." The human justice Lear sees is a sham. At best, judge and judged are interchangeable and equally corrupt. At worst, the trappings of authority shield the great sins of the powerful, and the weak are punished for every petty offense. When he delivers this tirade late in the play, Lear has clearly lost his wits, yet he expresses in violent and concentrated form all the familiar challenges to human justice we have traced. As Edgar says of the speech, "O, matter and impertinency mixed; / Reason in madness." (IV.vi.171-72)
The action of King Lear may, as Sisson suggests, be seen in part as an exploration of the broad theme of justice. To trace this through the play is not my purpose here. I wish instead to focus on an unusual scene that occurs in the middle of the sequence on the heath, the trial of Goneril and Regan. The scene is short, and may be quoted almost in its entirety:
LEAR: It shall be done; I will arraign them straight.
Come, sit thou here, most learned justice.
[To the Fool]
Thou, sapient sir, sit here. Now, you she-foxes—
EDGAR: Look, where he stands and glares. Want'st thou eyes at trial, madam? Come o'Re the bourn, Bessy, to me.
FOOL: Her boat hath a leak, And she must not speak Why she dares not come over to thee.
EDGAR: The foul fiend haunts poor Tom in the voice of a nightingale. Hoppedance cries in Tom's belly for two white herring. Croak not, black angel; I have no food for thee.
KENT: How do you, sir? Stand you not so amazed.
Will you lie down and rest upon the cushions?
LEAR: I'Ll see their trial first. Bring in their evidence.
Thou, robbed man of justice, take thy place.
[To the Fool]
And thou, his yokefellow of equity,
Bench by his side, [to Kent] You are o'Th' commission;
Sit you too.
EDGAR: Let us deal justly.
Sleepest or wakest thou, jolly shepherd?
Thy sheep be in the corn;
And for one blast of thy minikin mouth
Thy sheep shall take no harm.
Purr, the cat is gray.
LEAR: Arraign her first. 'Tis Goneril, I here
take my oath before this honorable
assembly, kicked the poor king her father.
FOOL: Come hither, mistress. Is your name Goneril?
LEAR: She cannot deny it.
FOOL: Cry you mercy, I took you for a joint-stool.
LEAR: And here's another, whose warped looks proclaim
What store her heart is made on. Stop her there!
Arms, arms, sword, fire! Corruption in the place!
False justicer, why hast thou let her 'scape?
EDGAR: Bless thy five wits!
KENT: O pity! Sir, where is the patience now That you so oft have boasted to retain?
EDGAR: [aside]: My tears begin to take his part so much
They mar my counterfeiting.
LEAR: Then let them anatomize Regan. See
what breeds about her heart. Is there any
cause in nature that makes these hard hearts?
This scene takes place under some shelter near the heath with the storm still raging outside. The cruelty of Goneril and Regan, Lear's sorrow for his own treatment of Cordelia, and the storm have done their work. "All the power of his wits have given way to his impatience," says faithful Kent, and at the end of the scene, when Gloucester asks for the King, Kent's reply is, "Here, sir, but trouble him not; his wits are gone." But mad Lear is curiously precise about his legal forms. The daughters are arraigned, and evidence is ordered to be introduced. He uses a formality of language appropriate to a legal proceeding: "Thou, robbed man of justice, take thy place, / And thou, his yokefellow of equity, / Bench by his side." A "commission," sometimes composed of judges from both the law and equity courts, seems to have been a proper and not unusual judicial unit for hearing special cases. In dramatic terms, the scene can be a most impressive stage presentation; Edgar, the Fool, old Kent, and Lear all gravely mimic the formal proceedings of the courtroom. Two of the judges are a madman and a fool, the prosecutor is mad, the defendants are two joint-stools, and much of the business of the court is the babbling of "poor Tom."
This fantastical court, uniquely impressive and terribly poignant, dissolves in Lear's distraught mind as quickly as it was constituted. It leaves the audience, however, with ambiguous responses to this use of formal legal process. On the one hand, this combination of formal procedural correctness and insane babbling creates an extraordinary image of the impotence of human justice to deal with the crimes Goneril and Regan have committed. When Lear in fact wielded the power to dispense justice at the beginning of the play, he misused his power. As Regan said at the time, "yet he hath ever but slenderly known himself," and Goneril replied, "The best and soundest of his time hath been but rash. . . ." (I.i.292-95) Measure for Measure has taught us that a judge's lack of self-knowledge will fatally obstruct the process of human justice, and the results of Lear's misjudgment have been disastrous. We also know from that earlier play that authority itself may incapacitate its holder from making clear judgments. Lear, stripped of all the trappings and powers of his kingship as a consequence of his misjudgment, has not only learned to judge his three daughters rightly, but he has gained much self-knowledge. With this new self-knowledge so dearly bought at the price of madness, he tries to use the royal prerogative of dispensing justice once more; all he can accomplish is a mocking of the forms of normal human justice, comic in the ranting of Edgar, but desperately pathetic in the impotence of knowledge gained too late to be translated into power.
In another sense, however, this mad trial, created by an effort of Lear's will and imagination out of physical and psychological chaos, is an ordering into a familiar social form of the mind-and-heart rending experience Lear has undergone. Man has developed formal legal process to deal with disorder in society, and these forms, however imperfectly, do harness the threat of chaos by constructing context within which we can begin to control it. The trial ends the long, wild sequence on the heath, and after it Lear, for the first time, is able to sleep. This process of justice is only a delusion of Lear's tormented psyche, and judgment cannot, of course, be executed by the officers of this court; the eventual deaths of Goneril and Regan do not result from any legal sanction. Indeed, the terrible disorder and injustice expressed in the actual events of the play contrast vividly with this attempt at reasoned order. But for Lear the familiar forms of justice have allayed, at least temporarily, the demons that torture his soul; Goneril and Regan have in a sense been formally judged, and the process has been cathartic. We do not see Lear again for seven scenes, and when he reappears his madness is as strong as ever. . We hear, among other things, the denunciation of justice that has already been examined. The calming effect has not been permanent, but this illusory trial has served a purpose uniquely appropriate to the legal process. In this short scene on the heath, in the midst of chaos, the use of legal process expresses the human need to attempt to deal with disorder in an ordered and "reasonable" way, even as it is also an image of the limits of that effort.
Before concluding, I think it may be appropriate to make a few general observations about the critical difficulties inherent in approaching a topic so diffuse as "Shakespeare and the law." These observations are in part implicit in the critical commonplace that the integrity of each artistic work must be respected, and in part derive from the special nature of this topic. "The law" is really a short-hand term for a complex group of related phenomena—rules, procedures, institutions, personalities—and Shakespeare's interest in "it" appears in-correspondingly diverse circumstances—in plots, in characters, in imagery. Because his treatment of the law is scattered throughout a number of the plays, it will tend to be intractable to any critical discussion that seeks absolute conformity with some single Shakespearean ideal of the law. The plays span a working life of perhaps a quarter of a century, and it would be only natural to expect that, as the dramatist's experience with life and its representation on stage increased, and as he moved from one type of dramatic representation to another, his attitude toward the various aspects of the law that came his way would also change. Moreover, the law is rarely the central focus of attention, and its meaning in any given play is inextricably a function of all of the elements of that play. Fragments from a number of plays may well not form a coherent, consistent whole, and consistency may perhaps be had only at the expense of ignoring the integrity of the separate dramatic works from which the fragments come.
Finally, it seems to me that Shakespeare was not, and did not intend to be, a systematic legal philosopher.40 His perspective is that of an exceptionally perceptive layman with a profoundly moral view of human experience who is interested in the law as a working system, not as a theoretical construct. He looks at the law in action, and he is interested not in technical precision, but in the people who enforce and who are affected by the law, and in the idea of human law as it encounters other values—political reality, political idealism, moral truth, psychological necessity. In addition, Shakespeare undoubtedly was attracted by the sheer dramatic potential of the law. His trial scenes are always meant to be taken seriously by his audience—they always focus important issues—but, whether or not Shakespeare was a trained lawyer, he was too good a dramatist to allow his dramatic momentum to become bogged down in the details of "correct" legal procedure.
The purpose of this article has been to explore some of the ways Shakespeare treats the law, and the selection of focal points has, admittedly, been somewhat arbitrary. I do think, however, that the [three] plays examined give a fairly accurate overview of Shakespeare's artistic and intellectual attitudes toward the law. As with most other subjects that interest him, Shakespeare has a variety of insights into the law and how it operates. It is sometimes a comic butt, as when Dogberry or Elbow tries to enforce it; sometimes a noble ideal, as when the Lord Chief Justice waxes eloquent about it; sometimes an all too human and imperfect construction that may actually impede the quest for justice, as in The Merchant of Venice or Measure for Measure; and sometimes a powerful metaphor for man's attempts to order and control his experience, as in the trial on the heath in King Lear. In all these settings, the law, a weak and distorted reflection though it is, derives a peculiar dignity from its analogous relation to the justice of God. The multiplicity of perspectives is entirely desirable; law is not, at least as most people experience it, an infallible system of pure reason, but rather an often distressingly, and sometimes joyously, human invention, with all the quirks and inconsistencies endemic in such human enterprises.
22 The play has been used to provide arguments for those who claim expert legal knowledge for Shakespeare, and it has been cited as proof that he could not have been familiar with real courtroom procedure. German legal philosophers have been much interested in the jurisprudential content of the trial scene, usually from the standpoint of whether Shylock receives "justice." See G. Keeton, supra note 1, at 148-50, for a brief description of the discussion among the Germans. The participants and their relevant works are: R. von Jhering, The Struggle for Law (2d ed. J. Lalor transl., Chicago, 1915); A Pietscher, Jurist und Dichter (Dessau, 1881); and J. Kohler, Shakespeare vor dem Forum der Jurisprudenz (1st ed., Wurzburg, 1883; 2d ed., Berlin, 1919). One more recent treatise finds in the play an explicit recognition of the differing powers of courts of law and equity, and reads the trial scene as a plea for the supremacy of equity jurisdiction that was finally achieved in the famous case of Glanville v. Courtney in 1616. M. Andrews, Law Versus Equity in The Merchant of Venice (Boulder, Colo., 1965). W. Knight, supra note 10, at 178-90, advances similar ideas.
23 Shylock as devil: I.iii.94 (by Antonio); H.ii.22-24 (by Launcelot Gobbo); II.iii.2 (by Jessica); III.i.18,69 (by Solanio); IV.i.215,285 (by Bassanio). See generally B. Spivack, Shakespeare and the Allegory of Evil (New York, 1958).
24 Coghill, The Governing Idea, 1 Shakespearian Quarterly (Vienna, 1948), quoted in part in M. Parker, The Slave of Life: A Study of Shakespeare and the Idea of Justice 69-75 (London, 1955).
25 C. Barber, Shakespeare's Festive Comedy 178, 190 (Princeton, 1959).
26 The many implications of the concept of wealth in The Merchant of Venice have been treated thoroughly by several scholars of the play, and they have been no more than summarized most cursorily here. See C. Barber, supra note 25, at 163-91; J. Brown, Shakespeare and His Comedies 45-81 (2d ed., London, 1962); Cooper, Shylock's Humanity, 21 Shakespeare Quarterly 117 (1970).
27 It would appear that it is the preparation to exact the penalty lawfully awarded, and not the mere prosecution of the action on the bond, that is culpable:
BASSANIO: Why dost thou whet thy knife so earnestly?
SHYLOCK: TO cut the forfeiture from that bankrout there.
GRATIANO: Not on thy sole, but on thy soul, harsh Jew,
Thou mak'st thy knife keen. . . .
28 There is some question about the actual disposition of Shylock's property. G. Keeton, supra note 1, at 146-47, whom I have followed, reads the technical language in IV.i.378-88 as placing legal title to one half of Shylock's goods in Antonio, with a life estate in Shylock, and a vested remainder in Jessica and her husband. Antonio thus cannot be charged with benefiting monetarily from Shylock's downfall, a situation that would in any case flatly contradict the thematic structure of the scene. Andrews, wrongly I think, attributes the economic benefit from this property to Antonio for the duration of Shylock's life. See M. Andrews, supra note 22, at 74-75.
29 Many literary critics have seen the play as something approaching an allegory, or at least a metaphoric representation, of divine mercy in human lives. The Duke, who abdicates for uncertain reasons at the beginning of the play, and who then oversees the ensuing action disguised as a friar before revealing himself and dispensing justice and mercy in a complex reconciliation scene, becomes a representative of the sometimes inscrutable ways of providence as viewed from an earthly perspective. Such a reading of the play does explain much of what is puzzling in the play's intellectual and moral structure. See generally G. Knight, Measure for Measure and the Gospels in The Wheel of Fire 80-106 (London, 1930); M. Lascelles, Shakespeare's Measure for Measure (London, 1953); E. Schanzer, The Problem Plays of Shakespeare 71-131 (London, 1963); Kirsch, The Integrity of Measure for Measure, 28 Shakespeare Survey (1975).
At least one literary critic has read the play as a primarily secular exploration of the problems of governing the state and the self. R. Hunter, Shakespeare and the Comedy of Forgiveness 204-26 (New York, 1965). This excellent essay confirmed and organized much of my own thinking about the play.
Curiously, most legal commentators, aside from the German legal philosophers (see note 22 supra), have shied away from extensive analysis of the play. But seeG. Keeton, supra note 1, at 371-93.
The Duke presents one of the knottiest problems in Shakespearean criticism. His function and motivation, indeed his very nature, are the subject of lively debate. Since I did not think an extended treatment of him is necessary to my discussion, I have elected to say as little as possible about a very difficult subject. For commentary on the Duke, see H. Hawkins, Likenesses of Truth in Elizabethan and Restoration Drama 51-78 (Oxford, 1972); R.E.C. Houghton, ed., The New Clarendon Shakespeare edition of the play, 212-17 (Oxford, 1970); M. Lascelles, supra, at 118-19; G. Knight, supra; Leavis, The Greatness of Measure for Measure, 10 Scrutiny 234 (1942); Weil, The Options of the Audience: Theory and Practice in Peter Brook's Measure for Measure, 25 Shakespeare Survey 27 (1972); Wilson, Action and Symbol in Measure for Measure and The Tempest, 4 Shakespeare Quarterly 375 (1953); L. Owen, The Representation of Forgiveness in Shakespeare and The Medieval Mystery Play, (1975) (unpublished dissertation in Alderman Library at the University of Virginia).
30See, e.g., Professor A.L. Goodhart's comment in The Influence of Literature on the Common Law, 21 Record of N.Y.C.B.A. 271, 279 (1966).
31 The historical material is drawn from R. Hunter, supra note 29, at 209-12, 249-50.
32 Schanzer, The Marriage-Contracts in Measure for Measure, 13 Shakespeare Survey 81 (1960).
33 R. Hunter, supra note 29, at 208-09.
34See 1 L. Radzinowicz, A History of English Criminal Law and Its Administration from 1750, at 1-265; 611-734 (London, 1948); 4 id. at 303-53.
35Cf. Radbruch, supra note 2, at 131-32, on "The Psychology of the Man of the Law": Justice, as we have seen, is an empty category that may be filled with the most varied contents. So the madness of justice without purpose may dress the utmost monstrosity up as an ideal (Robespierre). Justice is a polar value, which needs resistance if its essence is to prevail. Justice that is not again and again wrested from love becomes injustice, just as mercy would become unsteady weakness were it not in turn to be wrested again and again from justice. Justice without love hardens into self-righteousness, upon which the suppressed vital forces sooner or later terribly revenge themselves. In the figure of Angelo in Measure for Measure, Shakespeare has presented to us the image of the zealot of the law who slips into self-righteousness and injustice, the rebellion of suppressed desires running wild against the self-righteous norm.
36 The end of this scene furnishes evidence of the realism of Shakespeare's portrait of the constable:
ESCALUS: Come hither to me, Master Elbow; come
hither, master constable. How long have you been
in this place of constable?
ELBOW: Seven year and a half, sir.
ESCALUS: I thought, by the readiness in the office,
you had continued in it some time; you say, seven
ELBOW: And a half, sir.
ESCALUS: Alas, it hath been great pains to you; they
do you wrong to put you so oft upon'T. Are there
not men in your ward sufficient to serve it?
ELBOW: Faith, sir, few of any wit in such matters.
As they are chosen, they are glad to choose me for
them; I do it for some piece of money, and go
through with all.
Although in theory every male citizen was expected to take a turn at the honorary office of constable, in practice persons like Elbow were often paid to perform the duties. See G. Keeton, supra note 1, at 103. Further evidence of the realism of Shakespeare's incompetent constables appears in contemporary statutes punishing constables severely for neglect of duty and references to the disreputable character of the holders of the office. See Frasure, supra note 11, at 384-86. In any event, the character was evidently popular with audiences, because a number of Shakespeare's contemporaries found places for similar figures in their plays. Id. at 389.
37See Sale, The Comic Mode of Measure for Measure, 19 Shakespeare Quarterly 55, 59 (1968).
38 C. Sisson, Shakespeare's Tragic Justice 74-98 (London, 1963).
39 M. Parker, supra note 24, at 138.
40 As far as legal philosophies go, Shakespeare's vital interest in the concept of nature (see, for instance, the various uses of the term in King Lear) and his conviction that God's law is everywhere superior to mere human law, do place him in an intellectual tradition with the theorists of natural law. The Thomist tradition, with which Shakespeare has been identified by some critics, is a major contributor to the school of natural law. See M. Parker, supra note 24; Sister J. M. O'Malley, P.M., Justice in Shakespeare—Three English Kings in the Light of Thomistic Thought (New York, 1964). The possible relations are potentially complex, and would make an interesting subject for further study.
Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 37163
David M. Bergeron (essay date 1984)
SOURCE: "Hermione's Trial in 'The Winter's Tale'," in Essays in Theatre, Vol. 3, No. 1, November, 1984, pp. 3-12.
[In the following essay, Bergeron argues that Hermione's trial in The Winter's Tale reflects a triumph of rationality over passion.]
When Leontes and the others gather in the final scene of The Winter's Tale before the statue of Hermione, Paulina instructs them:
It is requir'd
You do awake your faith. Then all stand still:
Or—those that think it is unlawful business
I am about, let them depart.
In a moment the music sounds and the statue moves. Puzzling, perhaps, is Paulina's word "unlawful". Robert Uphaus has argued that this word is appropriate because The Winter's Tale creates much "unlawful business;" it is "Shakespeare's most defiant romance."2 The play continually violates our expectations. The most explicit example of defiance comes in Hermione's trial in Act III, a scene that in many ways is the obverse of the play's final restoration scene. The actual trial in Act III counters the trial of faith in the last scene, each producing its own special sense of wonder and the unexpected. My focus will be on Hermione's defense of herself in the trial, demonstrating how her rational approach contrasts with Leontes' passion and showing how her defense strengthens the presentation of her character. In several ways the trial foreshadows the restoration.
Generally, critics writing on The Winter's Tale have not paid much detailed attention to Hermione's trial. In an essay that explores the role of women in the play Peter Erickson in fact finds that Hermione's appearance in the trial confirms his view that she changes from a vibrant strength, seen early in the play, to weakness: ". . . she adopts a stance of patience and stoic passivity."3 I will argue quite the opposite: the trial scene exhibits great strength in Hermione's character while it may also demonstrate patience. I see no evidence that she adopts the stance that Erickson suggests. What is indeed remarkable about Hermione here is how within social and legal confines she brilliantly defends herself in the trial, thereby helping us understand the great reservoir of moral courage that she possesses.
The natural outgrowth of Leontes' jealousy has been to send Hermione to prison in Act II on the, as yet unproved, assumption that she is guilty. His accusations against her in II.i.81-95 are clear but mistaken; and his precarious position is evident in his assertion: ". . . if I mistake / In those foundations which I build upon, / The centre is not big enough to bear / A school-boy's top" (II.i.100-3). The centre does not hold for Leontes; in part it does not hold because Leontes is himself the center, or so he thinks, building the foundations step by step on his jealousy. Fortunately for him and the state, a sufficient vestige of orderly procedure remains so that a formal trial of Hermione can be held. As Leontes says: ". . . as she hath / Been publicly accus'd, so shall she have / A just and open trial" (II.iii.202-4). Such is the primary business of the first part of Act III.
Shakespeare does not include many formal trials: the trial of Antonio in The Merchant of Venice, Katherine's in Henry VIII, and the one here in The Winter's Tale. Several other trials or legal proceedings are, of course, referred to but not given dramatic life. The semblance of a trial in Measure for Measure never acquires the formal characteristics of the ones above. Portia is the star in Antonio's trial as judge figure, not the defendant; throughout she truly has the upper hand. Katherine shares some similarities with Hermione, a point noted long ago by G. Wilson Knight in The Crown of Life. But her defense is primarily an attack on Wolsey, the formal charges against her never being articulated. Katherine has ostensible legal support from the learned reverend fathers. Hermione stands alone: defendant and sole legal counsel. As she notes, she has no other defense "But what comes from myself . . ." (III.ii.25). Solitary and vulnerable, she must make the best case for herself.
The orderly and formal structure of the trial belies the chaos, irrationality, and jealousy that bring it about, perhaps Shakespeare's way of indicating that Sicilian society may be capable of redemption. In other words, to have such a trial implies that justice may yet be possible—certainly it is preferable to letting Hermione rot in jail. The odds against justice being achieved in the trial obtain so long as Leontes is the potential judge. The legalistic structure also counterpoints the mystical, transcendental oracle of Apollo that will finally determine the outcome of the trial, supplanting Leontes' judgement.
The assumption on which Hermione proceeds differs radically from that of Leontes. She observes in an "i f statement that contrasts nicely with Leontes' earlier one:
. . . if powers divine
Behold our human actions (as they do),
I doubt not then but innocence shall make
False accusation blush, and tyranny
Tremble at patience.
For Hermione there is a center, and it holds. Shakespeare takes the seeds that he finds in Bellaria in Greene's Pandos to and gives them full development in Hermione. What I propose to examine in some detail is Hermione's legal defense: it is studied, calculated, logical, honest, and full of controlled passion. It is also at moments spontaneous as when she responds to Leontes' outbursts or questions; but basically, I think she has thought through the issues and has some kind of structure in mind for her argument. Her defense proceeds on the basis of the ancient modes of persuasion, enunciated by Aristotle: ethical, logical, and pathetic proofs (see Aristotle, Rhetoric, Book I, chapter 2). She engages not so much the subtleties of law as she practices the art of persuasion.
Leontes opens the proceedings by at least giving lipservice to the pursuit of justice:
Let us be clear'd
Of being tyrannous, since we so openly
Proceed in justice, which shall have due course,
Even to the guilt or the purgation.
He believes, of course, that he is right and will be vindicated by the trial. Leontes' word "purgation," though it means "acquittal," carries also the meaning of "catharsis"—what better description of what happens in the trial scene to both Hermione and Leontes? In one sense Leontes is also on trial even as he thinks Hermione is the only guilty party. As the prisoner Hermione is brought in, Leontes commands: "Read the indictment" (11). The Officer complies in what is, I believe, the only formal statement of charges in a trial in Shakespeare. The main burden of the indictment is thus:
Hermione, queen to the worthy Leontes, king of Sicilia, thou art here accused and arraigned of high treason, in committing adultery with Polixenes, king of Bohemia, and conspiring with Camillo to take away the life of our sovereign lord the king, the royal husband . . .
In addition, she has presumably assisted in the escape of Polixenes and Camillo. Adultery and conspiracy are the fundamental charges. In contrast, Katherine in Henry VIII is not accused of either of these crimes; indeed, her main "fault" is that she has not produced a male heir. Hermione's task is somehow to answer the indictment. She cannot counter with tangible proof, so she must try to move by persuasion. Her strength grows from the knowledge that she is innocent and that "powers divine" will exonerate her.
Hermione's first argument rests on establishing the "ethos" of the speaker, that is, her moral, credible, and upright nature (recall Brutus' speech given before Antony's in Julius Caesar). She knows that it is insufficient merely to assert "not guilty," "mine integrity, / Being counted falsehood . . ." (26-27). Instead, she appeals to the common perception of her good character: ". . . my past life / Hath been as continent, as chaste, as true, / As I am now unhappy . . ." (33-35). One notes that she does not rely on the considerable testimony about her good character spoken by others earlier in the play, like Paulina and Camillo, but seeks to make the persuasive case herself. She argues by reciting simple facts: that she is "A fellow of the royal bed," "a great king's daughter," and "The mother to a hopeful prince" (38, 39, 40). She also owns "A moiety of the throne," which makes her a political partner with Leontes. The implication is clear: she is of such stature that she must be listened to. She has, however, been left "To prate and talk for life and honour . . ." (41). Illustrating Hermione's control in logically defending herself is the skill with which she grasps the words "life" and "honour" and develops them in additional comments. Thus she contrasts sharply with the frenzy and irrationality of Leontes. Her appeal to his "conscience" rests not on his good will but rather on his recollection of how she was in his merited grace before Polixenes came to Sicilia. If she should be "one jot" beyond being totally honorable, then "harden'd be the hearts / Of all that hear me, and my near'st of kin / Cry fie upon my grave!" (52-54). The note of finality that accompanies the statement suggests that Hermione has come to the end of this particular mode of arguing, as indeed she has.
Her case, however, does not rest on the ethos of her character alone, for she moves next to logical proof, that is, to answer explicitly the charges of the indictment. Point by point she responds to the formal accusation of adultery and conspiracy. About her relationship with Polixenes, Hermione responds:
. . . I do confess
I loV'd him as in honour he requir'd,
With such a kind of love as might become
A lady like me . . . (62-65)
With irony Hermione notes that her expression of love to Polixenes was none other than what Leontes had himself commanded: "Which, not to have done, I think had been in me / Both disobedience and ingratitude / To you, and toward your friend . . ." (67-69). She signals her movement to the second point of the argument: "Now, for conspiracy . . ." (71); and she begins: "I know not how it [conspiracy] tastes, though it be dish'd / For me to try how" (72-73). All she knows is that "Camillo was an honest man" (74); but why he has left the court no one knows, not even the gods. Her methodical approach to the details of the indictment underscores her attempt at logical proof and indicates a mind that has spent its time in prison sorting out the issues and preparing her defense. As we sometimes comment that Leontes is his own Iago, perhaps we can suggest that Hermione is her own Portia.
When Hermione finishes her logical proof, Leontes counters with additional accusations, unmoved by what she has said, and ironically adds: "Your actions are my dreams. / You had a bastard by Polixenes, / And I but dream'd it!" (82-84). On this illusion, of course, rests all of Leontes' jealousy, the subsequent imprisonment of Hermione, and the trial. Leontes seems to sense the conclusion of the legal proceeding, for he renders judgement on Hermione: ". . . as / Thy brat hath been cast out, . . . / . . . so thou / Shalt feel our justice . . ." (86-87, 89-90). The justice he has in mind is, in his own words, "no less than death" (91). But Leontes is wrong, not reckoning on the strength of Hermione nor on her determination to follow through on her final mode of argumentation: pathetic persuasion.
She begins bluntly enough: "Sir, spare your threats" (91). No longer does she need to establish her good character (ethos) or to answer the precise accusations of the formal indictment (logic); the last movement of her defense is clearly an appeal to the emotions (pathos). Even so—and this is one of the striking and remarkable things about Hermione's defense—the pathetic proof also proceeds logically, step by step. Her first point consists of enumerating the three things ("comforts" she calls them) that she has lost: "The crown and comfort of my life" (94), namely Leontes' favor; the "first fruits of my body," that is, Mamillius, from whose presence she is barred "like one infectious" (97, 98); and the "third comfort," the baby who has been taken from her breast and "Hal'd out to murder . . . " (101). One notes the control of her rhetoric: the first "comfort" contrasts with the word "lost"; the "second joy" with "infectious"; and the "third comfort" with "murder". Joining this profound sense of loss is the recognition that she has herself been "proclaim'd a strumpet" (102) "on every post" and therefore denied her rights as a mother. She makes one final point in this part of the argument: she has been given inadequate time to recuperate from childbirth; instead, she has been rushed to the trial before she has "got strength of limit" (106).
Her peroration begins with her question: "Now my liege, / Tell me what blessings I have here alive / That I should fear to die?" (106-8). She no longer values her life—"I prize it not a straw" (110), but she does treasure her honor. Seemingly aware that she has pursued her several proofs, she warns Leontes that if she is condemned "Upon surmises, all proofs sleeping else / But what your jealousies awake, I tell you / 'Tis rigour and not law" (112-14). She knows that her defense is solid, and, of course, she knows that she is innocent. But the immediate warning grows from the full understanding of how the legal proceeding should function. Her condemnation would be "unlawful business," the ultimate expression of defiance. The irony works several ways: Hermione is herself quite defiant, but the trial is wrong; the trial has the semblance of pursuing justice, but it rests on fallacious notions of Leontes. The judgment that seems inevitable would in fact mock the cause of justice. She rests her case with an emotional appeal beyond the puny, mortal understanding of Leontes: "Apollo be my judge!" (115).
The trial verdict shifts from human judgment to divine intervention by the oracle of Apollo. Leontes has deluded himself in believing that he controls the trial; but, as he will soon learn to his peril, he is subject to higher law, the presiding spirit of Apollo in this play. Only the intransigence of Leontes fails to be moved by Hermione's persuasive legal defense; the Lords cry out for the messengers of the oracle to be summoned to court, and so they are. Cleomenes and Dion appear and are compelled to "swear upon this sword of justice" (124) that they have indeed been at Delphos and bring with them "This seal'd up Oracle, by the hand deliver'd / Of great Apollo's priest . . ." (127-28). They are the medium; Apollo is the message. Divine witness now clinches the case for Hermione and renders judgment. The Officer of the court reveals the Oracle:
Hermione is chaste; Polixenes blameless; Camillo a true subject; Leontes a jealous tyrant; his innocent babe truly begotten; and the king shall live without an heir, if that which is lost be not found.
Several things interest us about the Delphic oracle. First, it is both retrospective and prophetic; that is, it looks to the past and offers judgment on the characters, it imposes a stasis on the present, and it sees into the future with its riddle-like comment about Leontes' heir. In that sense it rather resembles the play itself at this moment: one large part of the action is coming to an end (past) while another strand of plot is developing (future). Further, the oracle parallels in some respects the indictment read at the beginning of Hermione's trial even to the point of naming the characters—Hermione, Polixenes, Camillo—in the same order as they appear in the indictment. It obviously responds directly to the accusations made in that indictment, the basis of which has been Hermione's presumed guilt; but the message of the oracle is clear and simple: "Hermione is chaste." With that all of Leontes' foundations of blame crumble. Though revealed by Apollo, the oracle sounds very much like the report of the jury at a trial's end; it systematically and concisely answers the charges made or implicit in Hermione's trial.
Little could Leontes know in Act II, scene i when he dispatched the messengers to Delphos that they would return with a judgment exonerating Hermione and condemning him, the logical conclusion of her trial.
Indeed, Leontes' reason for seeking word from Apollo is to satisfy others, as he says: "Though I am satisfied, and need no more / Than what I know, yet shall the Oracle / Give rest to th' minds of others . . ." (II.i.189-91). In Pandosto it is Bellaria who initiates the mission to Apollo, making the request on her knees before Pandosto. For Bellaria the Apollo appeal is one last effort to exonerate herself, but for Leontes it will merely confirm, so he thinks, what he already knows. The tone in Pandosto and in The Winter's Tale is strikingly different. Shakespeare has set the oracle matter in motion in order to bring the message in at the conclusion of Hermione's defense and not before. Leontes learns at the end of Act II that Cleomenes and Dion, the Delphic messengers, are back in the country (II.iii.192-96); but there is no necessary expectation that they will arrive and participate in the trial. Shakespeare delays their arrival so that it may coincide with the end of the trial; thus Apollo's message judges the trial itself as well as the character of the persons involved.
The "courtroom" response to the oracle's verdict reveals joy for some but continuing obstinance on the part of Leontes. At Leontes' order the Officer reads Apollo's verdict; but Leontes responds with an ambiguous question to the Officer: "Hast thou read truth?" (138). The Officer answers that he has read the document exactly "As it is here set down." But Leontes cries out: "There is no truth at all i' th' Oracle: / The sessions shall proceed: this is mere falsehood" (140-41). The reaction contrasts sharply with the comment of the Lords—"Now blessed be the great Apollo!" (136)—and with Hermione's simple but joyous "Praised!" (136). One might note in passing that this is Hermione's final word until her restoration in V.iii. Neither persuaded by Hermione's proofs nor moved by Apollo's oracle, Leontes lashes out in a desperate attempt to assert his will and control in the trial; he is now the defiant one. Obviously he has lost; and if he will not be sensitive to Hermione's defense nor to the will of the gods, then the dramatist offers one last convincing blow: the news that his son is dead. With lightningfast conversion—resembling the speed with which Leontes initially expressed his jealousy—Leontes changes: "Apollo's angry, and the heavens themselves / Do strike at my injustice" (146-47).
Having lost in the trial and having lost his son and presumably Hermione as well, Leontes begins the painful process of finding himself, stripped of his pride and groundless jealousy. As Hermione's sins have been enumerated in the formal statement of the indictment, so Leontes' are rehearsed by Paulina at the end of the scene. (11. 175ff). She becomes his accuser and judge; thus, the trial continues, but of Leontes, not of Hermione. As Hermione has presumably died, Leontes withers into remorse, abetted by the knowledge of his guilt and the lashing tongue of Paulina. Defiance seems now to have had its day. Humbled and chastened, Leontes promises at the end of III.ii to visit the chapel where Mamillius and Hermione will lie, "and tears shed there / Shall be my recreation" (239-40). Time and again Leontes resembles figures from Greek tragedy—I think especially of Creon in Sophocles' Antigone whom the gods break across their superior power and will.
Antigone differs from Hermione, of course, because she knowingly and willfully breaks the law of Creon. But the defense of her action rests on the awareness that spiritual laws take precedence over man-made laws, and she buries her brother in accordance with the will of the gods. Hermione, too, is sensitive to those "powers divine" operating in her world; by such power she presents her impressive legal defense. She has for the moment seemingly won the battle but lost the war. The dramatist will, however, eventually show her triumphant in her restoration in the play's final scene.
Why the trial scene in The Winter's Tale? It establishes in compelling terms the strength of Hermione's character and by contrast the paltry insufficiency of Leontes'. It is the most extensive examination of Hermione in the play—nowhere else does she have such a scene. If what I have suggested is valid, namely that Hermione's legal defense is systematic and controlled, then we understand the rationality that dominates her character in contrast to Leontes'. Under the most extreme circumstances she thinks coolly, logically. Paradoxically, in Hermione's defiance is her rationality, and in her rationality is her defiance. Her control defies Leontes' passion; and by asserting herself in the trial, she strikes a blow for justice and logical proceeding. Leontes, on the other hand, defies the system of justice with his groundless accusations, and he defies the gods by insisting on his will—all prompted by passion, not logic. Leontes is left with unlawful business.
The trial scene is a concrete, explicit example of the several trials in the play as it is also the most developed. One thinks, for example, of the quasi-trial of Florizel by Polixenes in Act IV, scene iv, the sheepshearing scene, where the father's judgment falls harshly on his insolent son. The confrontation between father and son begins with Polixenes' question: "Have you a father?" (IV.iv.393), to which an impertinent Florizel answers: "I have: but what of him?" Having tested his son, Polixenes, resembling the earlier irate Leontes, removes his disguise and renders a verdict of punishment: ". . . we'll bar thee from succession; / Not hold thee of our blood, no, not our kin . . ." (430-31). Somehow the play must also resolve the profound consequences of this "trial". On the metaphorical level we can see much of the play as the "trial" of Leontes. The legal form of the actual trial helps, I think, our perception of this metaphor.
The trial also assists the oracle's credibility by its coming as an explicit response to and judgment on the trial. Having witnessed the trial and heard Hermione's persuasive defense, we can readily see the necessity of the intervention of the gods in order to achieve justice. This intervention is not the spectacle of the vision of Diana in Pericles nor the magical descent of Jupiter in Cymbeline; rather it is a report from the god Apollo functioning like a jury—no less wondrous than the others but nicely tied to immediate human problems. The trial makes possible this orderly intervention of Apollo, and the oracle in turn ratifies the trial, confirming its procedure and rendering judgment. The trial needs Apollo, and the oracle needs the trial.
This legal proceeding also throws into high relief the social, political, legal, and emotional conflict between Leontes and Hermione. The orderly, objective form of the trial assists in the audience's judgment as well, underscoring our belief in Hermione and dismay at Leontes. What we are unprepared for is the consequence of the trial—Mamillius' actual and Hermione's apparent death. Defying or upsetting our expectations is at the heart of the dramatic strategy of III.iii in which Antigonus is destroyed and, of course, at the center of the play's final scene. The defiant, "unlawful" nature of the trial foreshadows the restoration scene. The intervention of Apollo produces wonder akin to if different from the wonder evoked in the final scene.
Not only may the trial foreshadow the last scene, but the restoration also fulfills the trial. Paulina, the singing master of the souls of Leontes and Hermione, has imprisoned them both, separately of course: Hermione, hidden away somewhere for sixteen years, and Leontes, incarcerated in a process of penance and renewal and a vow not to remarry without Paulina's approval. In a sense Paulina has usurped the position of Apollo, her own brand of defiance. The trial has imposed a sentence on both Leontes and Hermione; this sentence is revoked, fulfilled, overcome, commuted, and transmuted in the play's final scene. The reunions of husband and wife and of mother and daughter supplant the deaths in the trial. Defiance is now more artistic than personal. The statue of Hermione defies the laws of nature by its art (Leontes is puzzled why the statue should have such wrinkles) even as its nature defies art. Submission and forgiveness characterize the tone and action of the scene, demonstrating again how this scene is the obverse of the trial.
The gods judge Leontes in that last scene, accept his penance, and restore Hermione to him. Hermione's gracious acceptance of Leontes ratifies the judgment of the scene: Leontes has been on trial and it is now ended. The earlier trial scene mocked justice; the last scene mocks with art. When Hermione begins to move, Leontes cries out: "If this be magic, let it be an art/ Lawful as eating" (V.iii.l10-11). The "unlawful business" of the trial and the "unlawful" nature of the restoration parallel and reflect on one another. In the trial scene and in the restoration—indeed throughout the play—we are forever meeting when we least expect "with things dying" and "with things new-born" (III.iii.112-13).4
1 Quotations are from The Winter's Tale, ed. J. H. P. Pafford, the Arden edition (London, 1966).
2 Robert W. Uphaus, Beyond Tragedy: Structure & Experience in Shakespeare's Romances (Lexington, 1981), p. 91.
3 Peter B. Erickson, "Patriarchal Structures in The Winter's Taler PMLA, 97 (1982), 825. The essay is found on pp. 819-29. I take issue with a number of Erickson's points. Erickson argues, for example, for a diminution in the power of the women in the play, partly the result of their transformation from threatening to reassuring characters. I find no loss in their power, especially if one considers the enormous power that Hermione and Paulina wield in the last scene. Erickson suggests that "female roles, though significant, are narrow and fixed, arranged to be consistent with the emotional needs and institutional structures of men" (827). Even if that statement were entirely true, how then does The Winter's Tale differ in this regard from most of Shakespeare's other plays? Does not this presumed situation reflect both the practicalities of the theater and the realities of the political and social world in Jacobean England? Patriarchy, obviously, is a given in Shakespeare's world. The matter is partly one of perspective, but for me Shakespeare demonstrates in The Winter's Tale the extraordinary skill and power of women within their inherited social structure.
4 I have examined the final scene in some detail in my "Hermione's Restoration in The Winter's Tale," in Shakespeare's Romances Reconsidered, ed. Carol McGinnis Kay and Henry E. Jacobs (Lincoln, Nebraska, 1978), pp. 125-133. I further analyze the play at some length in terms of the family issue in my forthcoming book, Shakespeare's Romances and the Royal Family (University Press of Kansas, 1985).
Jay L. Halio (essay date 1993)
SOURCE: "Portia: Shakespeare's Matlock?," in Cardozo Studies in Law and Literature, Vol. V, No. 1, Spring, 1993, pp. 57-64.
[In the following essay, Halio examines The Merchant of Venice as a play concerned with "mercy in the context of justice."]
Much has been written about Shakespeare's legal prowess—or lack of it—in The Merchant of Venice.* However intrinsically interesting these discourses are—and a good many of them are extremely interesting—I feel compelled to argue that almost all of it is irrelevant. Shakespeare was, first and foremost, a dramatist who made his fortune at the box office. His plays were intended to be "get pennies," sure to attract good audiences that would pay their penny at the gate and sometimes another penny for a seat in the gallery. His plays enjoyed popularity, if we can judge by the number that were published by 1600—with or without his authorization, and by such testimonials and other evidence that have come down to us. His plays were popular in the public theaters and at court, both with the Queen in the sixteenth century and with the King in the seventeenth. With good reason, James I became the patron of Shakespeare's company, thereafter known as the King's Men, soon after he ascended the English throne in 1603.
Scholars love to speculate about Shakespeare's activities during his so-called "lost years"—the decade between the time of his marriage to Anne Hathaway and the birth of his children, and the first mention of his presence in London as an actor and playwright in 1592. Some believe he was a schoolmaster; others, that he was a soldier, or a sailor. Or—now we come to it—a law clerk. Certainly his plays are studded with legal terminology as well as allusions to classical authors, seafaring terms, and soldier's lore. But the fact remains that we have no facts. We simply do not know what Shakespeare did during those "lost years." Not that I think it matters. Whatever he did, everything we know about him and his plays indicates that he had an uncommon ability to absorb ideas, stories, language, and events, and to transform them through the alembic of his imagination into the greatest poetic drama the world has known.
I say all this, which probably sounds like a recital of truisms, because I want to focus on the dramatic use of legal materials in The Merchant and avoid what could be a fruitless argument over the validity of Shylock's contract with Antonio, or the "trick" Portia uses later to entrap her victim, or other legal and quasi-legal issues. As other plays demonstrate, such as Othello, The Winter's Tale, and Henry VIII, Shakespeare became increasingly adept at using trial scenes—or what amounted to trials—for dramatic effect.1
Even before he wrote The Merchant of Venice, both in Henry VI, Part II, in the trial of the Duchess of Gloucester for witchcraft,2 and in the deposition scene of Richard II,3 the play written most proximately to The Merchant, Shakespeare learned how dramatically effective trial scenes could be on stage. He knew, as we do in our addiction to "Perry Mason," "Matlock," or "L.A. Law," how intrinsically dramatic the law can be, especially when cases are brought to trial. But his emphasis remained, I repeat, on the dramatic effect, not the legality. Law was the vehicle, however rickety at times, that carried the drama; but Shakespeare's point—like the dramatic effect—was of another order of magnitude.
The Merchant of Venice allows us to grasp this idea perhaps better than any other play. Act IV is a masterpiece of dramaturgy, and it scarcely matters whether or not it is really a trial or simply a hearing. True, the Duke appears prejudiced from the outset. In speaking with Antonio, he calls Shylock a "stony adversary" and "an inhuman wretch." (IV, i, 4) When Shylock enters, the Duke expects him to relent and tells him so flat out:
Shylock, the world thinks, and I think so too,
That thou but leadest this fashion of thy malice
To the last hour of act, and then 'Tis thought
Thou'Lt show thy mercy and remorse more strange
Than is thy strange apparent cruelty. . . .
(IV, i, 17-21)
Not only the Duke, but everyone else in the court is favourably disposed towards Antonio and against Shylock, including Portia, when she enters soon afterwards. Note that Shylock enters alone, unaccompanied by Tubal or any other Landsmann; I think it is an error (if I may digress for a moment) to have any other Jew present, as often the scene has been staged. Shylock is alone, and his isolation is meaningful. He is isolated from the Venetian Christian community, of course, but here also from the Jewish community. More to the point, dramatically he is a solitary figure, one against many. Hero or villain or clown, he is still solitary. He knows everyone is against him but he remains unfazed. He truly believes he has Antonio "on the hip," right where he has long wanted him, and he has the law on his side. Both Shylock (IV, i, 38-39 and 101-02) and Antonio (III, iii, 26-31) realize the dangers to Venice (III, iii, 26-31) if the law is in any way compromised, let alone abrogated. Venice will lose status in the international community and, worse, trade (by which she thrives) will suffer. Armed thus with the law, as he and so far everyone else believes, and armed too with this political and commercial advantage, Shylock remains adamant in his suit.
He even believes he has morality on his side. He has pledged an oath, an "oath to heaven." (IV, i, 228) The slave-owning Christians, moreover, have given him a further moral advantage. In reply to the Duke's admonition for mercy, Shylock responds, "What judgement shall I dread, doing no wrong?" (89) He then draws a parallel between his ownership of a piece of Antonio and their ownership of whole human beings, whom "like your asses, and your dogs and mules, / You use in abject and in slavish parts, / Because you bought them." (91-3) So he concludes: "The pound of flesh which I demand of him / Is dearly bought as mine, and I will have it." (99-100)
Impasse—or so it seems. The Duke has sent to Dr. Bellario in Padua, the seat of juristic learning in Italy and throughout the Western world, for assistance in the case. But even before Portia enters as the good doctor's emissary, we get a clue as to the outcome of events when Bassanio tries to cheer Antonio up:
what, man, courage yet!
The Jew shall have my flesh, blood, bones, and all,
Ere thou shalt lose for me one drop of blood.
(IV, i, 111-13)
Why have audiences, both on the stage and off, failed to see in these lines a solution to the dilemma? Why hasn'T Shylock, astute as he is, foreseen his undoing? The answers are, of course, both legal and dramatic. Legally, one naturally assumes that Shylock is entitled to take his forfeiture along with everything else necessary (implied though not specified) to exact it. Dramatically, one is caught up—as we are meant to be—in the emotional tension that develops during the scene—until Portia springs Antonio loose by what many have called a legal "trick."4 But Portia's device is much more than a trick, and it must be understood in its full dramatic context.
It is irrelevant, I believe, that Portia, like everyone else in the scene, is biased against Shylock. Never mind that she is wife to Bassanio, for whom Antonio entered into the bond in the first place. Never mind that it is with her money that Bassanio offers to repay Shylock for the loan. She comes in disguise—impenetrable disguise by Elizabethan stage convention—as Balthazar, a young law clerk wise beyond his years. Hence, she assumes and is credited with an air of proper impartiality; she fails even to distinguish between merchant and Jew, despite their different attire and accoutrements. (IV,i,176) Their identities made known, her strategy begins, and it is of the utmost importance to recognize and follow that strategy from start to finish.
She begins by establishing certain facts: first, that Venetian law cannot "impugn" Shylock or deny his suit; (177-79) secondly, that Antonio "confesses" the bond. Later, it will emerge that the state can—and certainly does—impugn Shylock as he proceeds against Antonio, but that is not the point here. The point now, as Portia puts it to Shylock, is that he must "be merciful." (182) I submit that this is the burden not only of her argument and the speech that follows, the famous "quality of mercy" speech, but of the whole scene and by extension much of the play, certainly of the last two acts. If The Merchant of Venice is about anything—and it is about many things—it is surely very much about mercy, but mercy in the context of justice. That is why Portia acts as she does. It is not that she wants to give Shylock enough rope to hang himself—literally, where Graziano is concerned—but that she wants to establish the right relation between justice and mercy: mercy in the context of justice. For without that context—without justice—mercy is empty, meaningless. It turns into sentimentality and becomes counterproductive, resulting in injustice. Fully to understand and value mercy, we need first of all to understand and grasp justice in all its rigor.
Shylock is impervious to Portia's exhortations. He "crave[s] the law," (206) and nothing but the law. I think it is a mistake, nevertheless, to see here an allegory of Old Testament law versus New Testament mercy, which some interpreters have claimed.5 Mercy abounds in the Old Testament, as any reader of Genesis—even Shylock, who knows his Pentateuch—should realize. If, as Christians believe, the New Testament fulfills the Old, then one is not discarded in favor of the other; both are retained, one providing the context for the other. Thus justice and mercy go together. Or, in the words of the Hebrew Bible: "[W]hat doth the Lord require of you, but to do justly, and to love mercy, and to walk humbly with thy God?" (Micah 6:8).
This is not only the moral point behind Portia's speech on the quality of mercy, it is also the dramatic point of her subsequent behavior. She gives Shylock every opportunity to relent—and take treble the money for his pains. (234) She urges him at least to show a modicum of compassion and have a surgeon close at hand. (257) She does all this while at the same time agreeing to the legality of the bond and the apparent justice of Shylock's suit: mercy in the context of justice. But Shylock doesn'T get it. He is relentless in his pursuit of plain "justice," as he conceives it, though we recognize it rather as the kind of "wild justice" Francis Bacon described in his essay, "On Revenge."
It is only now that Portia springs her trap. And it is here that lawyers become enmeshed in arguments that lie quite outside or apart from the dramatic context. If, at first, the law seems to allow the forfeit of a pound of flesh, and the court awards it, (300) "no jot of blood" can go with it. (306) Moreover, Shylock in cutting off the pound of flesh must do so precisely; he must cut no more or less than "a just pound." (327) These may seem like technicalities, but worse follows for Shylock. Moments later he stands accused and clearly guilty of the attempted murder of a Venetian citizen by an alien. For this crime the penalty is death and confiscation of all the criminal's worldly goods. (347-63) A second "Daniel come to judgment" (223) is Portia indeed, or so Graziano maintains. (333)
But Graziano is a little ahead of the action. As in the foregoing dialogue, where Portia was careful to establish the context of justice first, here she establishes a similar context. Justice first, then mercy. Portia's eloquent speech on the quality of mercy has not fallen entirely on deaf ears. Showing spontaneous charity, the Duke pardons Shylock's life before he begs it; further, he proposes that half of Shylock's estate owed the state become merely a fine, if Shylock shows appropriate humility. (376-77) But instead of "humbleness," (372) Shylock cries out in defiance borne of despair:
Nay, take my life and all, pardon not that:
You take my house when you do take the prop
That doth sustain my house; you take my life
When you do take the means whereby I live.
Now, it is Antonio's turn to show mercy, and he does—at least in Elizabethan terms. And this is where the scene becomes highly problematical for today's post-Holocaust audiences. One of the conditions that Antonio imposes for allowing Shylock to retain half his fortune—the half owing to the state—is that the Jew must convert to Christianity. (387) In this stipulation he is immediately backed up by the Duke, who threatens to revoke his pardon otherwise. (391-92) Harsh mercy though it must seem, it is mercy nonetheless, certainly as Elizabethans saw it. And it is framed in the context of a still harsher justice. Why else would Shakespeare have Shylock then agree to the terms, however grudgingly or reluctantly? In his reluctance, he is like Angelo in Measure for Measure or Bertram in All's Well That Ends Well, who are also the recipients—perhaps un-merited recipients—of mercy in the context of justice. Perhaps that is why a few critics, like W. H. Auden, have regarded The Merchant of Venice as another of Shakespeare's "problem comedies."
When he directed The Merchant of Venice in 1978 and 1981, first with Patrick Stewart and then with David Suchet as Shylock, John Barton said that however different the productions turned out to be—and they were quite different—all three men agreed that Shakespeare portrayed Shylock as a bad Jew and a bad human being. They insisted, nevertheless, that the play was not anti-Semitic.6 We can probably argue the issue of anti-semitism endlessly, but there seems little question that Shylock is exactly as they say: a bad Jew and a bad human being. What professing Jew, such as Shylock pretends to be, would agree to such terms to save his life and fortune? The rabbis say that for the sake of life you may violate any of the more than 600 commandments in the Bible—except one, that prohibiting the desecration of God. By disavowing his religion, Shylock violates that commandment. (Exodus 20:3) By murderously lusting after vengeance, he shows himself, moreover, to be both a bad Jew and a bad human being, violating yet another commandment, "Thou shalt not kill." (Exodus 20:13)
Perhaps these lead us away from the play as Shakespeare and his audiences would have understood it. For them, this was a comedy and Shylock the villain, with roots not only in stage Jews from which Marlowe's Barabas also derived, but also in the pantalone of the commedia dell'Arte. Elizabethans loved to see the biter bitten, the tables turned on the scheming machiavel. This happens quite ruthlessly in Marlowe's Jew of Malta, much less so in Shakespeare's Merchant of Venice. Although Act IV provides the major trial scene in Shakespeare's play, it is by no means the only one. Many trials occur, such as those in Acts II and III involving the caskets, and later on in Act V involving the rings Portia and Nerissa have given their husbands. Of the casket scenes, little need be said: the true character of the choosers emerges clearly enough through their choices, and I heartily agree with Lawrence Danson7 and others who reject the view that Portia unfairly helps Bassanio choose correctly. Yes, the song sung while he deliberates has several lines that rhyme with * "lead," (HI,ii,62-65) and neither Morocco nor Arragon is so privileged. But Bassanio is after all somewhat dense; as we've seen, he misses an important clue he himself verbalizes in the trial scene, and in any case Portia disavows the opportunity to instruct her lover in the right choice and thus violate her oath. (III,ii,10-11) Perhaps the play undercuts these considerations in some ways—for the play is full of inconsistencies and contradictions, as Norman Rabkin has shown. But in the theater, we are hardly mindful of them.8 Bassanio is the romantic hero and Portia the beautiful and clever heroine, who yet has one more lesson to teach before the play is over, one that neither her husband nor his friend Graziano is apt to forget. In Poethics, Richard Weisberg has analyzed the significance of the ring business in Act V more than adequately, as several others have also done, pointing out that too often the play's endgame is overlooked.9 In some nineteenth-century productions it was in fact entirely omitted. I do not mean to slight it here at all, but I shall simply conclude by trying to place the action of Act V in a related context of justice and mercy.
Feminist critics must love what happens there. Maybe they are not overjoyed by the dialogue between Lorenzo and Jessica, who tends to become silent, if not stupefied, during or by her husband's long discourse on the music of the spheres. (V,i,60-88) But when the quarrel breaks out between Graziano and Nerissa over the missing ring and Portia joins in, those who champion women's rights begin to sit up and eventually cheer. For Portia soon has Bassanio "on the hip"—figuratively here, whatever happens later. She catches him out and has him dead to rights. He has foresworn his promise never to part with his wedding ring, and sure enough he has done so. Therefore, she will feel just as free to behave similarly and warns him that she will be as "liberal" as he has been. (V,i,226) It is simple justice, tit for tat. Once again, Antonio intervenes for the sake of mercy and pledges his soul this time as Bassanio's surety that her husband will never more break faith. (249-53) At this point, Portia and Nerissa return the rings to their husbands, permitting them momentarily to feel that they have been made cuckolds and to suffer consternation accordingly. Both Bassanio and Graziano thus pay a penalty, as justice exacts its due. Mercy follows, however, when Portia reveals the truth of events, with promises to answer all her husband's "inter'gatories." (296-9)
So the play ends, with Graziano punning bawdily on keeping Nerissa's ring. Is it a happy ending? It might seem so, but then there is Antonio, a kind of seventh wheel, quietly following the newlyweds—as the ending is sometimes staged—into Portia's house. And there is Jessica, who has not uttered a word since "I am never merry when I hear sweet music." (69) The play is assuredly a comedy, but what kind of comedy? Can its myriad conflicts successfully be resolved in performance? Should they be? Questions to be asked, perhaps, but we may never find definitive answers. Others abide our question, as Milton said, but Shakespeare remains "free." In the performance by the Peter Royston Players, taking a cue from Peter Alscher's notes, the play ended with some lines from the third scene of the play. Shylock's plea to Antonio, "I would be friends with you, and have your love," (I,iii,138) resonated here, reminding us of a theme that is often embedded in the play but scarcely developed—probably because it is short-circuited by Jessica's elopement with Lorenzo. That blow to Shylock and everything he holds dear really determines the viciousness of his vengeance, and the end of his "kindness." (I,iii,143) Like Jonathan Miller's 1970 production at London's National Theatre, which ended with an offstage cantor intoning the Mourner's Kaddish, we were therefore left feeling distinctly uncomfortable in what is, genetically at least, supposed to be a happy ending. But Shakespeare seldorn allows us to remain comfortable in what is, generically at least, supposed to be a happy ending. But Shakespeare seldom allows us to remain comfortable for long, even in the happiest of his comedies. The Merchant of Venice is no exception, and these endings, manipulated extra-textually or otherwise, stress the point.
* All cites to the play here are to Jay Halio, ed., The Merchant of Venice (Oxford: Oxford University Press, forthcoming 1993).
1See, e.g., George W. Keeton, Shakespeare's Legal and Political Background (London: Pitman, 1967), pp. 151-76; O. Hood Phillips, Shakespeare and the Lawyers (London: Methuen, 1972), pp. 84-90.
2 Keeton, supra note at 165-76.
3 Phillips, supra note at 84-85.
4See, e.g. Lawrence Danson, The Harmonies of "The Merchant of Venice" (New Haven: Yale University Press, 1978), p. 118
5See Norman Rabkin, "Meaning and The Merchant of Venice," Shakespeare and the Problem of Meaning (Chicago: University of Chicago Press, 1981), p. 9.
6 John Barton, Playing Shakespeare (London: Methuen, 1984), p. 169.
7 Danson, supra note 4 at 117-18.
8 Rabkin, supra note 5 at 4-19, 27-30. Compare Danson, supra note 4 at 134-36.
9 Richard Weisberg, Poethics (New York: Columbia University Press, 1993), pp. 100-4.
Daniel J. Kornstein (essay date 1993)
SOURCE: "Fie Upon Your Law!," in Cardozo Studies in Law and Literature, Vol. V, No. 1, Spring, 1993, pp. 35-56.
[In the following essay, Kornstein evaluates The Merchant of Venice as a legal parable that weighs the conflict between rigid and equitable interpretations of law.]
The Merchant of Venice is surely the Shakespearean play most closely linked in the popular mind with law. The crucial trial scene sears the legal and popular conscience like nothing else in Shakespeare. Over the centuries, The Merchant of Venice has spawned more commentary by lawyers than any other Shakespeare play. Books and articles in large number have flowed from the busy pens of attorneys and others seeking to understand and explain the legal meaning of this play. And yet for all that has been previously written by lawyers about the play, there is still more to be said.
Commentary on the legal aspects of the trial in The Merchant of Venice is divided. One critic, not a lawyer, thinks the trial scene is so controversial that each reader must decide, like a Supreme Court justice, where to stand in the conflict.1 The vast majority of scholarly commentary—an eight-to-one ratio—agrees with Portia's ruling.2 For such scholars, the ruling of the court is a victory of the liberating spirit over the deadly letter of the law, of mercy over legalism, and of reasonable discretion over Shylock's demand for literal-minded justice. According to these majority commentators, Shylock gets just what he deserves—severe punishment for his miserly vengefulness. The consensus view is that the play dramatizes the struggle in Shakespeare's England for supremacy between the common law courts and the equitable Court of Chancery.
The minority view disagrees with Portia's judgment.3 Those dissenters see Shylock as a victim of injustice, as the hero of the play, as shown no mercy by Portia, and as trapped by secret legalities. Rather than a fiend, Shylock strikes the minority as a tragic victim of religious and ethnic prejudice. Portia's judgment, to these contrarians, is a triumph of vengeance in the guise of justice. The more I think about The Merchant of Venice, the more I find myself in the minority camp.
As the sharp split of opinion might indicate, The Merchant of Venice has a persistent and uncanny grip on human imagination. Shakespeare's play strikes at the subconscious with a force extremely rare in literature, even in classics. When Dustin Hoffman played Shylock in London and on Broadway in 1989 and 1990, it was an international cultural event. And Laurence Olivier's film version of Merchant still captivates us. Part of what makes a classic is its capacity over time to yield new and different meanings. The Merchant of Venice has this ability to be meaningful to successive generations of viewers. Each playgoer brings personal experience and sensibility, a unique response and attitude to the play.
The sensibility and response of a lawyer may find new meaning in The Merchant of Venice. To someone trained in the law, the important and lasting message of The Merchant of Venice has an overwhelmingly legal cast. Although at its core The Merchant of Venice is about the complexity of the human spirit, the play is in many fundamental ways about law and about the need for law to reflect the folkways and mores of the community. The classic trial scene in Act IV is the climax of the play. But even apart from the trial scene, the entire play is from start to finish dominated by several legal themes. It is impossible to understand the play fully and in all its richness without grasping these legal themes.
The legal themes occur in the context of an attempt to enforce a contract. The main action in the play turns on a civil lawsuit, the material facts of which are simple, undisputed, and well known. Plaintiff Shylock is a Jewish moneylender; defendant Antonio is a Christian merchant in Venice who needs funds to help his friend Bassanio woo an heiress, Portia. The parties enter into a written agreement whereby Shylock departs from his usual practice of charging interest and lends money interest-free to Antonio. The loan agreement provides a grisly penalty—that if Antonio fails to repay the loan on time, then Shylock could cut out a pound of flesh nearest Antonio's heart.
Antonio's ships do not come in on time and the repayment date passes. Shylock, whose normally high level of resentment against Antonio's anti-Semitism is raised to irrational revenge on learning of his daughter's elopement with a gentile, now sues for deadly specific performance. Spurning repayment several times over, he wants his pound of flesh. At the trial, Judge Portia presides in the guise of Balthasar, a learned young Doctor of Laws recommended by Dr. Bellario, a noted jurist in Padua. Portia-Balthasar tells Shylock, "Of a strange nature is the suit you follow," (IV, i, 180) which is Shakespeare's way of saying it is what lawyers today would call a "case of first impression."
I. Liberty of Contract and Its Limits
One key to explaining the strange case of Shylock v. Antonio is the conflict between two legal doctrines: on one hand, liberty of contract and, on the other, limitations put on that liberty by public policy. The trick is to think of the contract in Shakespeare's play as void against public policy. Shylock wants the court to uphold freedom of contract, and asks to have his contract enforced according to the clear and unambiguous terms freely agreed to by the parties. From Shylock's point of view, the case is ripe for summary judgment.
Liberty of contract is of bedrock importance to Shylock. The ability to structure transactions as parties wish facilitates commerce and helped to overcome the economic inertia of feudalism. Equally important, that same ability shifts the focus away from one's inherited status by way of family or religion as a detriment to consensual agreements. This famous movement from status to contract creates social and economic mobility and allows far more personal freedom. A person has more rather than less freedom if he or she is allowed to make a legally binding contract, even though by making it some freedom is surrendered while the contract is in force.
Shylock seeks a literal reading of the contract. The contract says a pound of flesh of Shylock's choosing, and Shylock will settle for only that.
So says the bond; doth it not, noble judge?
Nearest his heart. Those are the very words.
(IV, i, 261-262)
When Portia suggests that Shylock have a doctor at the ready to stop Antonio from bleeding to death, Shylock falls back upon a strict construction:
Shylock: Is it so nominated in the bond?
Portia: It is not so expressed, but what of that?
'Twere good you do so much for charity.
Shylock: I cannot find it; 'Tis not in the bond.
(IV, i, 268-271)
Shylock here symbolizes literalness and technicality in the law, divorced from common sense, prudence, and practical wisdom.
By resting his case so heavily on legal technicality, Shylock draws the lines of battle on a treacherous field. Experienced trial lawyers know that getting one's adversary and the court to accept one's definition of the issues is half the battle, but here that tactic backfires. Shylock defines the issues in terms of literalness and technicality, and Portia reluctantly accepts his definition. But Shylock's reliance on technicality invites Portia to do the same, and Portia responds by giving a technical interpretation, though only after leading him on.
For a while, Portia appears to agree with Shylock's interpretation. She seems to accept the legality of the penalty clause, as she tells Shylock: "the Venetian law Cannot impugn you as you do proceed." (IV, i, 181-182) She adds that the law clearly allows the stipulated penalty:
For the intent and purpose of the law
Hath full relation to the penalty,
Which here appeareth due upon the bond.
(IV, i, 236-256)
And she looks as if she is ready to enforce it:
Why, this bond is forfeit,
And lawfully by this the Jew may claim
A pound of flesh, to be by him cut off
Nearest the merchant's heart.
(IV, i, 236-239)
No wonder Shylock is emboldened to sharpen his knife. Portia's attitude up to this point has three consequences. First, it persuades Shylock to view her as someone who "know[s] the law" and whose legal judgment is "most sound" and authoritative. (IV, i, 243-244) He calls Portia, "A Daniel come to judgment! . . . O wise young judge," (IV, i, 228-229) "a worthy judge," (IV, i, 242) "most learned judge," (IV, i, 314) "most rightful judge," (IV, i, 311) "a well-deserving pillar" of the law. (IV, i, 245) The second consequence is to raise Shylock's expectation of legal victory so that he rebuffs munificent settlement offers of three times the principal of the loan. This inflexible and rigid settlement posture on Shylock's part means the matter will go to judgment; there will be no compromise. (A trial lawyer who had been around the block a few times would have advised Shylock that it is always risky and dangerous to reject a settlement recommended by the trial judge, no matter how airtight the case might seem.) Finally, Portia's early tilt toward Shylock beautifully sets the stage for the dramatic reversal that comes next. By lulling Shylock into a false sense of security on the very brink of his success, Portia—and Shakespeare—highlight the suddenness and the extremity of the change in circumstances that happens.
Portia abruptly pulls the judicial string on Shylock by resorting to an even more literal and hypertechnical interpretation than Shylock's. "Tarry a little," she says ominously to Shylock, "there is something else." (IV,i,315) Portia then points out that the contract says a pound of flesh but nowhere mentions blood. Therefore, she rules, Shylock must cut precisely one pound of flesh—no more, no less—and without shedding any of Antonio's blood—an obvious impossibility. Faced with such a hypertechnical reading, Shylock utters the incredulous cry of all disappointed litigants: "Is that the law?" (IV, i, 324)
It might or it might not be the law. It could be argued with some force—part of the extensive literature has in fact done so—that Portia's interpretation is not the law.4 To hold, as Portia does, that Shylock may take a pound of flesh but no blood is transparently absurd. Although no one in the play makes this rebuttal argument, the bond must have implicitly authorized what was necessary for Shylock to get his pound of flesh, that is, the shedding of Antonio's blood. Portia's interpretation is like granting an easement on land without the right to leave footprints.
From this perspective, Portia's judgment seems to be a quibble, a ludicrously literalist reading of the contract; an empty, hypertechnical legalistic interpretation that is illogical, useless, impossible and absurd.5 Portia shows herself as legalistic as Shylock. Portia and Shylock here demonstrate that law, literally construed, can be nonsense. They epitomize the empty and useless consequences of literalist and legalistic interpretation. Portia's legalistic and hypertechnical "flesh-but-noblood" construction is probably also quite unnecessary. There are alternative rationales for denying Shylock's suit. Instead of resting her decision on interpreting the text of the bond, Portia could explicitly rely on public policy. Rather than ingeniously quibbling about the wording of the contract, Portia could have forthrightly addressed whether the bond was legal in the first place. It may be more accurate to understand Portia's ruling as in fact based on public policy, though explained by her in terms of construing contract language. We should perhaps focus on the result, not the rationale; we should watch what Portia does, not what she says.
Surely Portia's cram course with Dr. Bellario, the renowned legal expert in Padua who supposedly sent her to Venice in his place, taught her that liberty of contract has limits. She must have learned to ask the hardest question of all about freedom of contract: should every contract between consenting and adequately informed adults be enforced to the limit? Certain bargains, she has to have learned, are illegal, void, and unenforceable as against public policy. To find that public policy, Portia can look to legislation, common law, and the prevailing practices of the community of people and their notions as to what makes for the general welfare.
Rather than a strained, legalistic interpretation, Portia could have right away invoked the public policy against absurd contracts such as Shylock's. No court in any civilized society would even entertain the thought of enforcing a contract penalty calling for the death of one party. It would be obviously unconscionable, like a contract of self-enslavement. She could have immediately relied upon, as she ultimately does, the Venetian statute against attempted murder, not to punish Shylock but as a source of public policy. Portia would be on more solid legal ground here, especially when Shylock refuses to take three times the principal instead. Such a conclusion depends on no fine-spun parsing of contract terms but goes to the heart of the transaction—Antonio's heart.
Portia rules the contract unenforceable, both as to principal and penalty, but hardly stops there. She wheels on Shylock with legalistic fury, as she begins to deal with the second major phase of the case. According to the cited statute, Portia says Shylock must pay half his wealth to his intended victim, Antonio, and "the other half/comes to the privy coffer of the state." (IV,i,366-367) In the end, Shylock is even forced to convert to Christianity.
The legal underpinnings of Portia's ruling should be familiar to us. The doctrine that contracts against public policy are void is still very much alive. Under the law of New York and a number of other states, for example, a usurious contract is void and unenforceable, and the usurious lender must forfeit principal as well as interest. The case reports are full of lenders who, caught in the web of such usury laws, plead as ineffectively as Shylock did, "give me my principal and let me go." (IV, i, 348) The newly emerging "lender liability doctrine," which makes lenders in certain situations liable for damage they cause to borrowers, may trace its roots to the seminal case of Shylock v. Antonio.
A classic example of a contract against public policy is an agreement in restraint of trade, and restraint of trade may lurk behind much of the action in The Merchant of Venice. Shylock and Antonio are competitors: Shylock lends money at interest, Antonio lends money without interest. Thus, on seeing Antonio in Act I, Shylock says in an aside:
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 [i.e., interest] here with us in Venice
(I, iii, 38-41)
To Shylock, Antonio is a hated below-cost competitor, and part of Shylock's motivation may flow from a desire on Shylock's part to rid himself of such off-price competition. In this sense, Shylock v. Antonio has antitrust aspects on which Judge Portia takes a pro-competitive stance.
Quite apart from public policy, other independent legal grounds exist for plausible rulings.6 Portia could have refused the equitable remedy of specific performance on the ground that Shylock has an adequate remedy at law for damages, especially because he has been offered more than principal and interest. Indeed, mere tender of the principal plus interest could by itself suffice to rule against Shylock. Repayment is the only legitimate purpose of the contract.
Not everyone agrees with such legal objections to Shylock's suit. Several lawyers who have written on the play have concluded that Antonio's obligation is unconditional and automatic.7 They argue that English common law and Roman civil law would prevent the cash tender in open court from rescuing Antonio if Shylock were to insist on the penalty.8 Others contend that Roman law might have enforced Shylock's penalty against Antonio.9 To me, these arguments have the smell of the lamp about them, out of touch with practical realities. Despite such legalistic arguments, the contract simply would not be enforced—under medieval Venetian law, under Roman civil law, under the English law of Shakespeare's time, under current American law—or under any other civilized system of law.
Portia might also have denied enforcement because of fraud. It can be argued that Shylock proposed the penalty clause to Antonio as a jest; Shylock himself told Antonio that the bond is "in a merry sport" (I, iii, 147) and not meant seriously (which may be the case until Shylock's daughter Jessica elopes with her Christian lover and takes Shylock's jewels with her). But the severity of the penalty, the seriousness with which Antonio understood it, and the solemnity of sealing the contract in writing all make fraud less likely.
Two other possibilities come to mind. It could be argued that the bond is an unenforceable gambling contract. Shylock's refusal to accept generous repayment is evidence that the bond is not an ordinary commercial guarantee at all, but truly a gamble on Antonio's life. A final legal ground could have been mutual mistake, as the play's last act reveals that three of Antonio's ships were not in fact lost (as all had thought) but returned to harbor safely and with great profit for Antonio, who can himself now pay the debt. At the least, the court might have let Shylock have his principal, without the burden of the additional punishments. Why should Shylock, who keeps his end of the bargain, be the only loser, and such a big one at that?
But, despite their availability, Portia uses none of these legal escape routes. Of course we must always remember that Portia is not a real judge, but merely a fictional character drawn temporarily into judicial service. Shakespeare wrote a play, not a judicial opinion. In such a context, the needs of drama trump the probabilities of the courtroom. Legalistic arguments based on technicalities provide good, efficient drama, more so perhaps than longwinded and hard-to-expound legal principles and public policy. Besides, only a legalistic argument teaches the lesson that technicalities and literalness beget technicalities and literalness. Portia's persnickety reading of the bond catches everyone, those in the play and in the audience, off guard, and allows the play to take a sharp, unexpected turn. Regardless of whether Portia's ruling is good law, it definitely is good theater, as it turns the tables on Shylock's lethal vengeance.
II. Law and Discretion
More broadly, Portia's ruling vividly illustrates a larger and ever present tension between rigid law and judicial discretion. Those who like Portia's decision (at least that part of it that avoids Antonio's death) say it shows how strict law can and should be mitigated by equity. One theory holds that Shakespeare may have been demonstrating the cruelty of English law and its necessary mitigation by the new courts of equity.10 From this perspective, Portia's ruling is a metaphor of the struggle between rigidity and flexibility.
Shylock, a descendant of the People of the Law, aligns himself with the Rule of Law. "I stand here for law," he cries. (IV, i, 145) "I crave the law." (IV, i, 211) "If you deny me, fie upon your law!" (IV, i, 103) He seeks "law" and "justice" through a mechanical enforcement of the words of his contract. He relies on certainty and stability in the law merchant to bring him out all right. To the extent Shylock wants the judge to enforce contracts as written, he is an advocate of judicial restraint.
The need for certainty and stability in contracts generally is even more pronounced in the play's commercial setting. Then, as now, the ability to rely on contracts is of prime importance in commercial law. Even Antonio understands this requirement: "The Duke cannot deny the course of law," moans the bankrupt merchant,
For the commodity that strangers have
With us in Venice, if it be denied,
Will much impeach the justice of the State,
Since that the trade and profit of the city
Consisteth of all nations.
(III, iv, 29-34)
As Portia further explains:
There is no power in Venice
Can alter a decree established.
'Twill be recorded for a precedent,
And many an error by the same example
In essence, Shylock is saying—and up to this point Antonio and Portia agree with him—that a ruling in Antonio's favor will upset the entire reliability of commercial contracts under Venetian law, and discourage merchants and moneylenders from doing business in Venice. As a policy consideration, Shylock's position, of course, has some merit.
Shylock's legal stance is far from the harsh caricature often portrayed. Shylock is an outsider in Venice, an unpopular minority member who is discriminated against, a hated alien who lacks the same rights as his adversaries. For such a victim of discrimination, it is entirely logical and reasonable—as Richard Posner insightfully points out in the most original, most important and most liberating contribution of his book Law and Literature—to trust in the apparent severity of a rigid but certain interpretation of law rather than in the discretion of a system that has already shown its bias.11 Discretion can become arbitrariness, and worse than injustice is arbitrariness, the negation of law. Power is tolerated only if it is constrained. The majority does not need courts or law to protect its rights; a minority relies on law for protection precisely because it does not have the numbers to prevail in the political realm.
In this sense, Shylock stands for every minority member who ever sought protection in the safety of clear, precise, written law instead of the personal value judgments of a prejudiced local official. Shylock's concept of law—ridiculed for centuries, shunned by politically correct readers of Shakespeare—has some of the noble and attractive features that animated our own civil rights movement.
For such outsiders, the law of contracts is important. Law and order and the sanctity of contract are essential for them to compete in society. Their success depends on being scrupulous in obeying the law and abiding by contracts. Justifiable insecurity makes them that way.12
But Shylock begs the crucial question. When he claims to "stand here for law" and to "crave the law," he omits the key inquiry: what is law? He assumes his rigid approach is the only one possible. Of course he is wrong.
Portia defines law differently than Shylock. She understands that to be sensible, law requires judicial discretion. The rigor of the law, she thinks, must be softened with equity and mercy and tempered by individual circumstances. When Portia gives her moving "quality of mercy" speech, she puts into words an equitable concept of law that should inform all legal proceedings. To this extent, Portia is a judicial activist.
In finding a creative solution to a hard judicial problem, Portia, like King Solomon, shows signs of greatness. Greatness on the bench—as elsewhere—lies in creativity. But such creativity underscores a basic problem in the judicial process. We expect judges to enforce the law, while knowing they must exercise discretion in applying it to the intractable facts of life. How much law and how much discretion (or justice) are appropriate in the decision of a concrete case?
The Merchant of Venice thus sets up once again the ancient dilemma of rule versus discretion, of constraint versus leeway. Shylock symbolizes law as rigid rules; Portia personifies the spirit of equity. Perhaps because of Shakespeare's successful dramatic technique, our intellectual tradition tends to view Shylock's concept as bad and Portia's as good, but that is too simplistic. Both concepts are good, both are liable to abuse, and both are in frequent tension. This basic dilemma may be unavoidable; it may be embedded in the nature of a living legal system.
The implications of this dilemma are far-reaching. Although often discussed in terms of Measure for Measure and The Merchant of Venice, the tension between law and discretion can clearly be seen in the development of whole legal systems. The central legal dilemma so well illustrated in these two plays thus becomes a new way to measure and evaluate what a legal system is actually doing. Such a Shakespearean approach unexpectedly throws light, for example, on American legal history.
Like The Merchant of Venice, the history of American law shows two different approaches to discretion in government, both of which are designed in theory to enhance and protect liberty. One approach—Shylock's—is to limit such discretion; the other—Portia's—is to encourage it. They are part of the conflict within consensus in our attitudes toward interpreting our basic law, the Constitution. These differing approaches to the same professed goal of greater freedom have been from the beginning of American history continually in tension, as the yin and yang of American constitutional law.
HI. Mercy Strained
Much has been written about the quality of mercy that Portia shows Shylock. We know she talks a good game: her moving "quality of mercy" speech during the trial has been read with pleasure, memorized by generations, and quoted to courts over and over again:
The quality of mercy is not strained,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest—
It blesseth him that gives, and him that takes.
'Tis mightiest in the mightiest. It becomes
The throned monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway,
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
The deeds of mercy.
(IV, i, 189-207)
One would think that the person who speaks those lines would feel and act on the sentiments behind them. One would hope that when such a person is in a position of power, she would season justice with mercy. One would expect merciful actions to match noble words.
One would be sorely disappointed. Portia's inconsistency between word and deed is vast. The gulf between her preaching about mercy dropping "as the gentle rain from heaven" and her vengeful punishment of Shylock is unbridgeably wide. On the one hand, she practically begs Shylock to be merciful, and, on the other, she acts with extraordinary cruelty to him only moments later. She could and should have stopped at merely denying Shylock's request for his pound of flesh. Is it absolutely necessary to appropriate all of Shylock's property? To put him under a death sentence? To make him convert to another religion? After all, Antonio did default on the loan. Is Portia's judgment fair? It certainly is not merciful. Portia's huge inconsistency and terrible meanness leave haunting doubts about her character.
Those doubts only grow larger and larger. In addition to her hypocrisy and vindictiveness, we see her as a bigot, and not just a minor-league bigot, but a world-class, equal opportunity hate-monger. We know she is prejudiced against Jews by her enthusiastically reaching out to rely on the harsh, anti-semitic Alien Statute. And we also know she is a racist because of her comments about her African suitor's skin color: when the black Prince of Morocco makes the wrong choice in the lottery for Portia, she snaps with relief, "Let all of his complexion choose me so." (II,vii,80) To these character flaws, we add her jealousy of Antonio's suspect love for Bassanio. On top of all these defects is her corruption as a judge in a case in which she is closely interested.13 Portia, for all her cleverness and verbal agility, is unattractive and infuriating, especially as a heroine.
For these reasons, I agree with William Hazlitt, who in the early nineteenth century wrote, "Portia is not a very great favorite with us."14 To be sure, Portia has for the most part enjoyed good press over the centuries but it mystifies me that so sensitive an observer as Richard Weisberg can refer to Portia as an "exquisite heroine."15 She strikes me more as the "eloquent mouthpiece"16 than the lawyer's professional paradigm. She may be quick and legalistically nimble, but more judges like Portia would, in reality, cause a revolution by litigants and lawyers. By going beyond simply denying Shylock's suit and cruelly punishing him, Portia made herself no more of a hero than the infamous Judge Jeffries, notorious for his ruthless rulings during England's Glorious Revolution.
IV. The Casket Game
Even the casket game for picking Portia's husband can be read as a metaphor for law and justice. Portia's dead father's will insisted that her prospective suitors choose among three caskets—gold, silver, and lead—only one of which contains her picture. The suitor who picks the right casket can marry Portia. On the surface, this trial of the caskets seems unrelated to law, but, as the play and the casket trial teach, things are not always what they appear.
Consider the evidence. During the casket trial, the characters refer several times to Fortune and "blind Fortune," (II, i, 37) and Portia says once, "love is blind." (II, vi, 37) Justice, like Fortune and Love, is also supposed to be blind. Next, Portia says to one of her unsuccessful suitors, "To offend and judge are distinct offices," (II, ix, 63) which means, "You willingly chose the trial of the caskets; you should not presume to judge the verdict." A further linking of the caskets to law occurs when Portia's maid says: "Hanging [i.e., the results of law] and wiving [i.e., the results of the casket trial] go by destiny." (II, ix, 86) This in turn brings out the uncertainty of litigation generally, which is surely reinforced by both the play's express language and stunning outcome.
The whole casket game can be read as a metaphor about law and legal interpretation. Think of Portia's father's will as law. Just as "the will of a living daughter [is] curbed by the will of a dead father," (I, ii, 24-25) so too is our desire to govern ourselves constrained by the dead hand of the past. Like Portia's father's will, our law—constitution, statutes, common law—represents the past. In interpreting the Constitution, for example, in choosing how to apply it, we must—it is often said—defer to the intent of the Framers, who have long since departed the scene, rather than adapt to new circumstances. In this sense, we are in the same predicament as Portia, who complains, "the lott'Ry of my destiny / Bars me the right to voluntary choosing." (II, i, 15-16) And yet Portia's song to Bassanio allows her, by interpretation, to bring about the outcome she wants.
The three caskets are themselves compelling evidence of a legal theme. The winning lead casket bears an inscription that continues the sub theme of chance: "Whoso chooseth me must give and hazard all he hath." (II, vii, 16) So it is with litigation. The silver casket, a loser, says, "Who chooseth me shall get as much as he deserves," (II, vii, 7) which is one definition of justice. Later, Portia adds to that definition: "In the course of justice, none of us / should see salvation. We do pray for mercy." (IV, i, 304-305) But it is the gold casket that is the most convincing.
The gold casket's legend is: "Who chooseth me shall gain what many men desire." (II, vii, 37) It symbolizes the gulf between appearance and reality; inside it says: "All that glisters is not gold." (II, vii, 66) When Bassanio considers which casket to pick, the first example to his mind of an "outward show" is legal:
In law, what plea so tainted and corrupt
But, being seasoned with a gracious voice
Obscures the show of evil.
(III, ii, 75-79)
After 20 years of practicing law, I can only say: 'Tis true, 'Tis true.17
The theme of the trial of the caskets—that things are not always what they seem—also runs through the trial of Shylock v. Antonio. Shylock's contract with Antonio appeared clear and unambiguous, but Portia shows that this is not the case. Even Portia herself is not what she seems. As the fianceé of Antonio's best friend for whom the loan was made, she is anything but a disinterested judge. Her bias removes the blindfold from justice. Indeed, Portia is neither a man nor a lawyer. In spite of her speech about mercy, she is unnecessarily cruel to Shylock. Does all this mean Portia is a fraud? That justice is a fraud? Or merely uncertain?
V. Equal Protection
From a slightly different legal viewpoint, the play shows what happens when a society denies equal protection of the laws. Shylock's hate and revenge—what he calls the "ancient grudge" between Jews and Christians (I, iii, 44)—arise from the suffering, humiliation, injustice, and prejudice he and his co-religionists have borne. Shylock is not a cardboard figure of evil, but a complex and somewhat sympathetic man who has suffered much. We feel this with the intensity of his eloquent "Hath not a Jew eyes?" speech. (III, i, 52-65) As a non-Christian, Shylock could not even become a citizen of Venice. It is this discrimination that makes the crucial Venetian law—the vile Alien Statute—apply to him:
It is enacted in the laws of Venice,
If it be proved against an alien
That by direct or indirect attempts
He seek the life of any citizen. . . .
(IV, i, 361-364)
This Alien Statute deserves strict scrutiny, as it is an outrage, at least to 20th century readers. Curiously, this odd and sinister law, so central to the play's outcome, has largely escaped careful legal analysis. In a new, pathbreaking paper, Peter Alscher, in this very number, brilliantly refocusses our attention on the vices of the statute. As Alscher points out, the law gives the state incredible power. If the statute is violated, the state has the legal authority to take all the property of a Jew or any other alien. Half goes to the Venetian citizen whose life has been threatened, and half to the government. The law also allows the state to execute the offender. These are severe punishments indeed.
The severity of the penalties under the Alien Statute is by no means matched by the severity of the crime for which they can be imposed. The law prohibits not only direct but also "indirect attempts" on the life of any citizen and includes merely "contriving against" such a life. The statute appears to apply even when the offender acts in self-defense or when no bodily harm is actually done. Ignoring the salutary distinction made by Isabella in Measure for Measure, the Alien Statute can be invoked not only for actions but also for intentions to act. The statute might be interpreted by Venetian citizens to prosecute "contriving against" a citizen's livelihood as well as his life, since property is the foundation of life. Conceivably, if an alien seeks repayment of a loan made to a citizen, such action itself could amount to "contriving against" the citizen's life.
These objections are nothing as compared to the fundamental flaw of the Alien Statute, which is its denial of equal protection of the laws. It discriminates against aliens, including Jews. There is no comparable Citizen Statute. A citizen who indirectly "contrived against" the life of an alien would not be subject to the same penalties. By virtue of this law, a Jew does not have the same rights as a citizen of Venice. This is the real vice of the Alien Statute: it constitutes unequal treatment by the state, it takes away the civil rights of Jews, and it deprives Jews of the right to private property. The statute would be clearly unconstitutional under American law.
A basic and obnoxious defect indelibly taints the Alien Statute. It embodies anti-semitism and encourages persecution against Jews. By making Jews' hold on life and property precarious, it foreshadows the infamous Nuremburg Laws of our own century, and reminds us of Jim Crow laws in this country and apartheid in South Africa. What strikes a modern reader is that no one in the play—not even Shylock—challenges or contests this awful law. Everyone seems to accept the awful premise of the Alien Statute. Have fundamental sensibilities changed that much?
Despite these deeply offensive qualities, the Alien Statute's application to Shylock has not drawn unanimous disapproval. On the contrary, the overwhelming majority of commentators do not object at all. But in the eyes of the minority, invoking the Alien Statute against Shylock is a horrible miscarriage of justice. After all, Shylock has no prior warning of this infuriating law. Rather, Portia previously told him that no other legal obstacle blocked his suit. For example, Portia asks Shylock to show mercy or else "this strict court of Venice / Must needs give sentence 'gainst the merchant there." (IV, i, 209-210) Portia brings up the Alien Statute for the first time only after Shylock has withdrawn his demand for a pound of flesh.
Taking all of the factors into consideration, Alscher proposes a radical resolution of the trial scene. In a dazzling set of new stage directions, Alscher makes the Alien Statute the true villain of the play. To challenge and eliminate this evil law, he introduces the statute itself as a paper scroll prop in the play. As Portia reads the scroll statute in Alscher's version, she has picked up Shylock's knife and uses it to point to the words. When finished, after saying that Shylock's life is at the mercy of the Duke, Portia gives Shylock's knife to Antonio, who starts and then stops in an effort to kill Shylock. The high point in Alscher's directions comes when Antonio raises high the knife and, for one potentially epiphnal moment, considers plunging the knife through the scroll.18
Shylock is not only a Jew, he is a symbol for any group that feels itself oppressed. Substitute African-Americans, women, or any other such group, and we understand the strength of their impatient feelings for full equality. Shakespeare's play thus becomes a dramatic representation of the common-sense wisdom of the equal protection requirement of the Fourteenth Amendment. Rather than anti-Semitic, the play is prominority rights. It shows how inequality before the law breeds dangerous and divisive discontent, never a good thing in any society.
For at least one group—women—the play stands out as an example of triumph over inequality. Portia defies the codes of her milieu by assuming a commanding position of authority and respect as lawyer and judge in a man's world. She is skillful, witty, and learned. Despite occasional criticism from contrarian commentators like myself, Portia's name has become synonymous with eloquence and wisdom in a female attorney or judge. John Mortimer, the English lawyer and writer, has his fictional London barrister, Horace Rumpole of the Bailey, often refer admiringly to his female colleague Phillida Trant as "the Portia of our chambers." And at least one colleague on the Supreme Court has complimented Justice Sandra Day o'Connor—whom I once saw in June 1971 at the Folger Shakespeare Library—as "our Portia."19
Portia, moreover, rebels at the lack of choice in marriage. Intelligent and ambitious, Portia feels that society and her father's will fetter her choices. She is not resigned to her lot; she takes control.
But here, too, Portia's feminist triumph may not be all that it appears. Once the trial is over, Portia resumes her demure domestic role. Portia almost seems like two different persons, one the clever, forceful judge, the other a passive princess. Her rebellion over lack of marriage choice is more verbal than real: she complains but still submits to the marriage lottery. In sharp contrast, Shylock's daughter Jessica talks less but rebels more by running away from her father and marrying out of her faith. In this sense, Jessica may claim equal title as the feminist heroine of the play.
VI. Act V's Overlooked Legal Significance
The play's Fifth Act has often been neglected, but this would be a serious mistake, particularly from a legal point of view. Act V has the three sets of young lovers—Jessica and Lorenzo, Nerissa and Gratiano, and Portia and Bassanio—playfully bantering on the island of Belmont, where Portia lives. Coming as it does right after the tremendous tension of the trial scene in Act IV, the final act strikes many as anticlimactic and even superfluous. In fact, throughout much of the 19th century, English productions of The Merchant of Venice simply stopped the play after Shylock's humiliation at the end of the Fourth Act, dropping entirely the last act. Now, thanks to Richard Weisberg, we know just how much of an error it would be to overlook Act V.
Weisberg, in Poethics, sets forth an original and persuasive case for the crucial importance of Act V to the underlying legal themes of Shakespeare's play.20 Unlike almost all other legal commentators on The Merchant of Venice, Weisberg goes beyond concentrating on the trial scene. According to Weisberg's trailblazing analysis, Act V is filled with legal imagery and talk of promises that represent a turnaround of the play's legal momentum. By the end of the play, Shylock may be vanquished, but his legalistic mindset has triumphed; everyone becomes as legalistic as Shylock.
The great change in Portia's attitude in Act V is hard to miss when we compare it to what happened in Act IV. At the trial, Shylock stands for sanctity of contract, the keeping of promises, and verbal expressions of commitment. The courtroom attack on Shylock is an attack on verbal obligation. Antonio, Bassanio, and their Venetian friends are casual oath-breakers and outright racists. Portia's ruling, however disguised in its own legalisms, encourages lighthearted breaches of contract and not taking seriously the making of a sacred oath. Equity won over law.
But all that changes in the often neglected Act V. There, Portia and Nerissa chide their lovers for giving away their wedding rings. Portia lectures Gratiano with words equally applicable to Bassanio:
You were to blame—I must be plain with you—
To part so slightly with your wife's first gift,
A thing stuck on with oaths upon your finger,
And so riveted with faith upon your flesh.
(V, i, 167-170)
Now we have Portia, the symbol of equity, stressing the importance of oaths and their physical representation—rings. She asks Bassanio for "an oath of credit" that he will be faithful and never again give away her ring. (V, i ,564) Portia, having in Act IV allowed it as a judge, forbids oathbreaking in Act V. By play's end, law prevails over equity, oaths over breaches, and Shylock's ethical system over the Venetians' casualness toward obligations. Portia, in effect, adopts Shylock's values.
VIL Other Legal
If all this were not enough to demonstrate the legal themes in The Merchant of Venice, Shakespeare scatters throughout the text many other legal references. On first hearing Shylock's loan terms, for example, Antonio's companion says: "I like not fair terms and a villain's mind." (I, iii, 182) Every lawyer who ever drew a contract knows the importance of good faith: an honest person acting in good faith will abide by the sense of a contract however expressed; a villain will look for a way out of a contract no matter how tightly drawn. A lawyer can learn a lot about contracts, what to do and what not to do, and how to make them airtight and to protect against this or that contingency. But a handshake between honorable people is often the best contract. And sometimes letting people off the hook and letting them out of a commitment can be far more effective than holding them to the commitment.
Other legal comments abound. "The devil can cite Scripture for his purpose." (I. iii, 98) "Truth will come to light . . . in the end truth will out." (II,ii,72-74) A few lines from the end, Portia even gives us her view of pretrial discovery:
And yet I am sure you are not satisfied
Of these events at full. Let us go in,
And charge us there upon inter'gatories,
And we will answer all things faithfully.
(V, i, 318-321)
Courthouses usually have messages carved on them about law, and The Merchant of Venice could supply two more: "For, as thou urgest justice, be assured / Thou shalt have justice more than thou desir'st," (IV, i, 326-327) and "You must take your chance." (II, i, 40)
VIII. Revenge Through Law
Another theme, revenge through law, is important for the legal themes in Shakespeare. It indelibly marks The Merchant of Venice, a "revenge play" (common enough in Elizabethan times) in which crucial dramatic action turns upon a major character's drive to get even. With Merchant, Shakespeare puts a special twist on the standard revenge play by having Shylock seek revenge within the bounds of the law. Shylock does not take the law into his own hands and carry out private vengeance on Antonio through private violence. Rather, Shylock takes him to court, where the money lender attempts to enforce his legal rights to the limit, without pity, and even though Antonio's death might result. The legal system, in Shylock's hands, itself becomes the means for revenge.
The play is quite explicit about the theme of vengeance through law. After Jessica runs away with Shylock's jewels and money, and after Antonio is in trouble, Shylock is whipped up into a vengeful frenzy. "Let him look to his bond," (III, i, 41-44) Shylock says over and over again, believing he still has one way of getting back at Antonio. When Shylock's colleague Tubal asks what good will enforcing the bond do, Shylock answers: "[I]t will feed my revenge." (III, i, 47-48)
Then immediately follows Shylock's "Hath not a Jew eyes?" speech, during which he makes even more clear his use of legal process to work 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.
(III, i, 58-66)
Just in case we somehow miss the point, Shakespeare has Shylock repeat it before the start of the trial scene. "I'Ll have my bond! Speak not against my bond! / I have sworn an oath that I will have my bond." (III, iii, 5-7)
Shylock's use of litigation for revenge has a modern ring to it. It is a late development in the long evolution of law from violent private revenge to public enforcement by disinterested persons at a trial at law. In contrast with early use of revenge as a substitute for law, Merchant depicts the more recent phenomenon of vengeance through law. Venice is cosmopolitan and civilized; it has laws and a legal system for resolving disputes. Venetians go to law instead of doing bodily harm to those of their neighbors against whom they have claims.
Still, the thin veneer of civilization hardly wipes out so strong and deep-seated an emotion as revenge. Wise politicians and lawmakers know this psychological fact and, acting on it, create institutions and encourage habits to provide socially acceptable and orderly ways for venting vengeful feelings. "Law channels rather than eliminates revenge," as Judge Posner puts it, "replaces it as system but not as feeling."21 Under the circumstances, nothing will mollify Shylock but revenge. Better it should be revenge through law than revenge as a substitute for law.
Despite its modern and salutary aspects, Shylock's use of law for revenge distresses us. It is as if Shylock is abusing modern law and even his own legal rights. He uses the means of the law for a bad end or purpose. In doing so, Shylock also does something nasty to himself, so misusing the law that he loses part of his mental and emotional balance and even some essential element of his humanity. Shylock is the embodiment of a character familiar to law offices today: the person obsessed with litigation. A victim of litigation psychosis, Shylock lives to inflict pain on his enemies through lawsuits. Any lawyer who has handled emotionally laden litigation—a bitter divorce case or a child custody battle or a pro se matter—knows the symptoms.
Shakespeare seems to take a dim view of Shylock's use of revenge through law. To be sure, one must always be careful when attempting to impute values or views to an author from something that author wrote in the realm of dramatic literature. Even so, and approaching the subject with diffidence, we can fairly conclude that Shakespeare rejects revenge in The Merchant of Venice. His portrayal of Shylock's ignoble quest through law, his handling of the trial scene, the very language and action all reflect a view of law in which the primitive impulse of revenge is disapproved. This theme, and the role of revenge in the evolution of law, will go on to figure prominently in later tragedies and histories, especially Hamlet and Julius Caesar.
Classifying The Merchant of Venice has always been difficult. Tradition lists it as a comedy, which would seem absurd unless comedy be defined as something apart from humor. Since convention requires of comedy only a sudden reversal of fate followed by a reconciliation of sorts, the play would be a comedy, though certainly a dark one. There is nothing funny about this play, and there is an apprehension of death that breaks all the rules. It is, truly speaking, neither a comedy nor a tragedy nor a history. It is a dramatic crystal of many legal issues, a rich text for a law school seminar. If a category is needed, let us invent one of legal parable.
As a legal parable, The Merchant of Venice may have influenced contemporary judges and changed the course of English legal history. King James I asked to see two performances of the play on two consecutive days. The leading modern champion of Shakespeare's impact on English jurisprudence—W. Nicholas Knight—insists that the 1616 case of Glanville v. Courtney shows the play's effect. In that case, which was a suit on a bond, Lord Coke, acting as Chief Justice of the common law courts, entered judgment for plaintiff. But the High Chancellor, Lord Ellesmore, issued an injunction to prevent enforcement of the bond. The result is considered to be a victory of equity over the common law, with the Crown siding with equity, just as the Duke did in Shylock v. Antonio.
Based on these facts, Knight speculates that the result in Glanville v. Courtney was due to The Merchant of Venice. If I understand Knight correctly, he is arguing that since Glanville was decided by judges who must have seen Merchant, then Merchant must have contributed to the legal result.22 Such an argument is difficult to respond to. Yes, it is possible, but no proof exists for it. I appreciate Knight's wonderful and contagious enthusiasm for Shakespeare and the law but would be more restrained and hedged in my conclusions. The highly speculative nature of Knight's-conclusions, provocative and fascinating though they may be, does not warrant the exaggerated style of certainty in which they are expressed.
Yet, others have sided with Knight on this point. A 19th century lawyer, on whose work Knight draws, also thought that the result in Glanville was due to Shakespeare's ideas. More recently, Harlan F. Stone, a justice of the Supreme Court for two decades in this century, once said that, "Often, in listening to The Merchant of Venice, it has occurred to me that Shakespeare knew the essentials of the contemporary conflict between law and equity."23
Whatever the true impact upon 17th century lawyers of The Merchant of Venice, we can surely appreciate its power over us. We can feel the power of the theatrical moment in our professional lives. The play, we know, is about human character, but it is also about law: liberty of contract and its limits, law and discretion, the meaning of mercy, the legal symbolism of the casket game, equal protection, and other legal themes.
As we leave a spiritually liberating performance of The Merchant of Venice, we hear over and over again in our minds what Portia says to Shylock, and what Shakespeare means the whole play to say to all of us: "The law hath yet another hold on you." (IV, i ,360)
1 A. D. Moody, Shakespeare: "The Merchant of Venice" (London: Edward Arnold Ltd., 1964), p. 61.
2See, e.g., Lawrence Danson, The Harmonies of "The Merchant of Venice" (New Haven: Yale University Press, 1977); Herbert Bronstein, "Shakespeare, The Jews and The Merchant of Venice," 20 Shakespeare Quarterly 10 (1969); Anthony Hecht, "The Merchant of Venice: A Venture in Hermeneutics," Obligati: Essays in Criticism (New York: Atheneum, 1986), pp. 140-229; Edgar Elmer Stoll, Shylock (reprinted in the Signet Classic Merchant of Venice, 1965), pp. 157-172.
3See, e.g., Moody, supra note 1; H. B. Charleton, Shakespearean Comedy (New York: McMillan, 1938), pp. 123-160; J. M. Murry, Shakespeare's Method: "The Merchant of Venice" (New York: Harcourt Brace, 1936), pp. 153-173; Judith Koffler, "Terror and Mutilation in the Golden Age," 5 Human Rights Quarterly 116 (1983).
4See, e.g., Rudolf von Jhering, Der Kampf um 's Recht (Vienna, 1886), translated in pertinent part in H. H. Furness, ed., The Merchant of Venice: A New Variorum Edition of Shakespeare (New York: Dover, 1964). Terry Eagleton, William Shakespeare (New York: Blackwell, 1986), pp. 36-37; Richard Weisberg, Poethics, And other Strategies of Law and Literature (New York: Columbia University Press, 1992), pp. 99-100.
5 Hecht, supra note 2 at 186-187.
6See, e.g., George W. Keeton, Shakespeare's Legal and Political Background (New York: Barnes & Noble, 1967), pp. 10-21.
7 For a recapitulation of legal descriptions of the bond, see O. Hood Phillips, Shakespeare and the Lawyers (London: Methuen, 1972), pp. 102-116; on the automatic nature of the forfeiture, see Keeton, supra note 6 at 136.
8See Weisberg, Poethics, supra note 4 at 95.
10 M. E. Andrews, Law Versus Equity in "The Merchant of Venice" (Boulder: University of Colorado Press, 1965).
11 Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1988), p. 97.
12 Gertrude Himmelfarb, "Victorian Values/Jewish Values," 23 Commentary 28-29 (1990).
13Accord John Noonan, Bribes (Berkeley: University of California Press, 1984), pp. 323-25.
14 J. William Hazlitt, Characters of Shakespeare's Plays (New York: Dutton, 1969), p. 322.
15 Weisberg, Poethics, supra note 4 at 100.
17See also the comment in Act Four of Timon of Athens: "Crack the lawyer's voice, that he may never more false title plead, Nor sound his quillets shrilly."
18 Peter J. Alscher, "The Merchant of Venice and the Problem of Antonio: Staging a Radical Resolution of the Trial Scene," 5 Cardozo Studies in Law and Literature 1 (1993).
19 John Paul Stevens, "The Shakespeare Canon of Statutory Construction," 140 University of Pennsylvania Law Review 1373, 1386 (1992).
20 Weisberg, Poethics, supra note 4 at 93-104.
21 Posner, Law and Literature, supra note 11 at 33.
22 W. Nicholas Knight, Shakespeare's Hidden Life: Shakespeare at the Law: 1585-1595 (New York: Mason & Lipscomb, 1973), pp. 178-190, 280-86.
23 J. K. Emery, "Preface" to Andrews, Law Versus Equity in "The Merchant of Venice, " supra note 10 at ix.
Stephen A. Cohen (essay date 1994)
SOURCE: " 'The Quality of Mercy': Law, Equity and Ideology in The Merchant of Venice," in Mosaic: A Journal for the Interdisciplinary Study of Literature, Vol. 27, No. 4, December, 1984, pp. 35-54.
[In the following essay, Cohen probes the ideological threat to the dominant social order represented by Shylock's legal suit in The Merchant of Venice.]
The interdisciplinary study of literature has received considerable impetus over the last two decades from the rise of New Historicism. Particularly in Renaissance studies, the work of Stephen Greenblatt, Louis Adrian Montrose and others has illuminated the relation of such diverse matters as exorcism, colonialism, architectural design and primogeniture to the cultural work performed by literary texts. One subject largely neglected by the New Historicists, however, is the law. This neglect may in part be attributable to the prominence of the law in older, positivist historical readings of Renaissance literature, and in turn to the New Historicists' desire both to distance themselves from this reflectionist model and to investigate unexplored areas of Renaissance culture. In any case, by conjoining the considerable work done by Renaissance legal scholars with New Historicism's characteristic questions—what are the sociopolitical functions of the cultural phenomenon in question, and how are those functions employed or adapted through the literary text—we may shed considerable light on both the law and the literature of the Renaissance.
Not surprisingly, given its explicitly economic central conflict and its intricately detailed legal climax, The Merchant of Venice has had considerable appeal for interdisciplinary critics. As O. Hood Phillips's investigations have shown, for over a century legal scholars and historians have studied the trial scene's relation to contemporary jurisprudence, debating its verisimilitude and its position in the period's jurisdictional and philosophical disputes, especially the conflict between the common law and equity (91-118). More recently, historical critics like Walter Cohen, Leonard Tennenhouse and Thomas Moisan have explored the play's relation to Renaissance social and economic history and ideology, and particularly its role in the period's transition from the cultural and financial structures of late feudalism to those of early capitalism. These two lines of inquiry have, however, remained almost entirely separate: legal readings of the trial scene tend to treat its legal significance in both cultural and textual isolation, failing to link it to the social and economic issues prominent in both text and cultural context; and socioeconomic readings of the play as a whole give little or no attention to the role of the trial's legal background in that framework.
A contemporary audience, however, would have made no such separation. The late 16th and early 17th centuries in England were notable both for unprecedented economic and social change and for a marked increase in legal activity; the connection between the two developments was sufficiently clear at the time that Francis Bacon could note almost as a commonplace that "times of peace, for the most part drawing with them abundance of wealth, and finenesse of cunning, doe draw also in further consequence multitudes of suits, and controversies . . . [which] do more instantly sollicite for the amendment of lawes, to restraine and represse them" ("Epistle Dedicatorie," n.p.).
Nor were such associations beyond the bounds of the theater. In the case of The Merchant of Venice, the susceptibility of the play's legal content to sociopolitical interpretation is attested to by no less a legal and political authority than Lord Chancellor Ellesmere, who in a 1615 judicial dispute over the power of King James to legislate economic policy without the concurrence of Parliament advised his fellow judges "to maintain the power and prerogative of the King; and in cases in which there is no authority and precedent, to leave it to the King to order it according to his wisdom and the good of his subjects, for otherwise the King would be no more than the Duke of Venice" (qtd. in Andrews 41). The significance of the reference—to the Duke's legal inability to act on his sympathy for Antonio—would not have been lost on James and his court, for whom The Merchant of Venice was performed twice in 1605 (Knight 108n8).
For its contemporary audience, then, the trial scene's legal conflict was firmly connected to the economic and political issues in which the period was increasingly embroiled. By bringing together the historical particularity of the play's legal critics and the ideological sensitivity of its newer historical readers, I hope to recapture the significance of this connection; and in shedding new light on the meaning of the trial scene's common law-versus-equity debate I will attempt to illuminate the role that The Merchant of Venice played in the culture of which it was a part.
The case that Shylock makes for the enforcement of his bond rests on three claims: 1) the self-evidence of the law's application to the case at hand; 2) the supremacy of that law over any other power, personal or governmental; and 3) the importance of that supremacy to the foundations of the state itself. "I [have] sworn / To have the due and forfeit of my bond," he tells the Duke as the trial opens; "If you deny it, let the danger light / Upon your charter and your city's freedom!" (4.1.36-39).1 These three claims were the foundation of the case presented by the champions of the common law in their jurisdictional and philosophical conflict with the courts of equity. In supporting the inviolability of the common law's authority they argued that the order and security of the nation rested upon the adjudication of its increasingly complex web of rights and obligations by—as Sir Edward Coke phrased it—"the golden and straight mete-wand of the law, and not the incertain and crooked cord of discretion" (qtd. in Ives 125).
While acknowledging the technical legality of Shylock's suit—"Of a strange nature is the suit you follow, / Yet in such rule that the Venetian law / Cannot impugn you as you do proceed" (177-79)—Portia counters his claims by decrying the cruelty of the bond and the severity of the law that enforces it and insisting on the need for mercy "to mitigate the justice of thy plea" (203). The necessity of such mitigation was the basis of the argument presented by the advocates of equity's appellate superiority to the common law, in order, in the words of Lord Keeper John Williams, "to mix & temper mercie and equitie with the black and rigorous L[ette]re of the Law" (qtd. in Thomas 526). Consequently, Portia's victory has been read by legal critics like Mark Edwin Andrews, Maxine McKay and W. Nicholas Knight as Shakespeare's endorsement of the ethical importance of equity to mitigate the impartial but at times overly-strict justice of the common law.
As Lord Chancellor Ellesmere recognized, however, behind the ideological trappings of blind-but-strict law and corrective equity, the issue at stake in the trial plot is political power—specifically, the power of the Crown to further its social and economic agenda in the face of the legal challenge presented by the common law. As the complex, large-scale financial operations of early capitalism began to emerge in the middle years of the 16th century, its practitioners became acutely aware of the value of a comprehensive and predictable legal system that offered protection from arbitrary interference. As Max Weber notes:
The modern capitalist concern . . . requires for its survival a system of justice and an administration whose workings can be rationally calculated, at least in principle, according to fixed general laws. . . . It is as little able to tolerate the dispensing of justice according to the judge's sense of fair play in individual cases or any other irrational means of principles of administering the law . . . as it is able to endure a patriarchal administration that obeys the dictates of its own caprice, or sense of mercy. . . . (qtd. in Whigham 107-08nl4)
The common law, particularly after it began to recognize and incorporate the jurisprudence of the increasingly important international mercantile legal system (Hill 238), was clearly the law that best offered this protection, given its fundamental concern with meum et tuum property rights: "The person, goods and possessions of a man (as yow know) are the things which the Common lawes of England doe protect," wrote Edward Hake in the late years of Elizabeth's reign (69).
The Crown's difficulty with this conception of the common law was that the very same principles which facilitated the new economic activity could also be—and increasingly were—employed to protect the profits of that activity from royal exploitation. The value to the nation of this new commerce and industry provided the Crown with a strong disincentive to violate or abrogate the common law; yet with the steadily growing financial pressure on the royal treasury in the late 16th century, the maintenance of state power came increasingly to require the diversion of the profits of English capitalism into the government's coffers. The means by which the Elizabethan state attempted this diversion—ad hoc financial and commercial regulation, extra-parliamentary taxation and forced loans that were never repaid—brought it into direct conflict with the necessary predictability and inviolability of the common law, and those profiting from the new economy were quick to invoke those principles in their own interest. Even Hake, who was by no means a wholehearted ally of the new capitalists (his revised Epieikeia was presented to King James), held that "concerning the subject's goods, neither subsidyes, taxes, contributions nor loans are by the lawe to take hold thereof or to be imposed upon any Englishe subject without his free consent"; thus "any seisures to be made of an Englishe subject's goods to the King's use withowt iust and lawfull tytle" were not to be considered (83-84).
Coupled with the ideological prestige of the common law's status as England's unique and indigenous legal heritage (insightfully described by J. G. A. Pocock), the Crown's reliance on the new economy made a royal attack on the common law in general both undesirable and impracticable. Instead, the Crown for the most part restricted its response to the particular instances in which the common law was used to oppose the Crown's will: thus while common-law tacticians cast their legal resistance to the state's unpopular financial devices as the defense of property rights against royal tyranny, the Crown countered by depicting that resistance as the economically self-interested misuse of the law contrary to the unity, order and security of the state. Equity, as the theoretical remedy for injustice produced by the misuse of the law, was consequently an essential component of the Crown's legal arsenal. While other legal weapons like the royally-dominated ecclesiastical courts, Star Chamber and the considerable direct prerogative power of the ruler himself would provide the Crown with greater practical power in the increasingly contentious years leading up to the Civil War, equity's established jurisprudential credentials allowed it to become one of the Crown's earliest and most powerful ideological tools in its efforts to stave off the political implications of capitalism's use of the common law.
Seen in this light, the broader social conflict behind the common-law/equity dispute is not the primarily economic battle between capitalism and feudalism, but the primarily political battle between two socioeconomic factions for the spoils of the nascent capitalist economy. These two factions were defined less by social status (aristocracy versus gentry or nascent bourgeoisie) than by a combination of economic interest and ideological affiliation. On one side were the merchants, financiers, landed gentry and even aristocrats who profited directly from the new economy and who perceived their interests—financial and otherwise—to be at least on occasion different from the Crown's (Stone, Causes 114-15). This group may be designated the "rising class," provided that we understand "rising" primarily in the economic rather than social sense and "class" as a taxonomy based on neither birth nor wealth but on economic activity.
Their opponents were the large landowners—Crown and older aristocracy—that for reasons both economic and social had been unable to adapt their financial practice to the new economy and who were consequently forced into an increasingly parasitical relationship to that economy—the Crown in the ways discussed above and the aristocracy as royal clients competing for monopolies and state offices (Tawney 9-13; Stone, Crisis 199-207). Despite the growing challenge posed by the rising class, this second group may still be referred to as the period's ruling class, for since Henry VII and Henry VIII subjugated the great noble families to the Crown, this royal-aristocratic bloc had wielded a nigh-hegemonic political and social power which in the late 16th century continued to hold most of the nation under its official or ideological sway.
Thus, while the immediate stakes in the conflict between the two groups were financial, the ultimate prize was much greater: the ability of the independent rising class to use the common law to thwart the sociopolitical will of the ruling class. Not simply a clash of legal principles or jurisdictions, the contest between common law and equity was one of the first and most important sites of the conflict between the rising and ruling classes that would climax (but not conclude) with the Civil War. As one of the earliest articulations—literary or otherwise—of this ideological struggle, the victory of Portia in the trial scene of The Merchant of Venice is not a simple reflection of a jurisprudential dispute or an all-but-complete economic shift but rather a highly partisan intervention in a growing cultural crisis.
As in the contemporary legal dispute, the trial's battle lines are drawn not between capitalism (Venice) and feudalism (Belmont), but between the socially and politically independent rising class (Shylock the Jew) and the ruling class and its ideological allies (the Christian aristocrats and Antonio). Even before the trial scene itself, the play makes clear that its target is neither capitalism nor common law per se. In response to Solanio's certainty that the Duke will void Shylock's bond, Antonio pointedly establishes not only the close connection between common law and nascent capitalism but also the importance of both to the economic survival of the state:
The Duke cannot deny the course of law;
For the commodity that strangers have
With us in Venice, if it be denied,
Will much impeach the justice of the state,
Since that the trade and profit of the city
Consisteth of all nations.
During the trial, the legality of the contract itself, exemplar of both capitalist economics and common law, is never challenged: Antonio "confesses" the bond (181-82) and Portia declares, "Why, this bond is forfeit" (230)—that is, forfeited by Antonio upon his nonpayment. Instead, Shylock is vilified for the particular use to which he puts the law of contract: the enforcement of the bond's horrific stipulations at the expense of the Christian "royal merchant" Antonio.
The trial scene opens with a reassertion of its central sociopolitical division. Referring to Antonio by name, the Duke says: "I am sorry for thee" (3); the merchant responds by acknowledging the pains the Duke and the other "magnifícoes" have already taken on his behalf (7-9; see also 3.2.279-83). Shylock, in contrast, is first referred to simply as "the Jew" (14), an epithet used throughout the trial to underline his social alienation. Despite (or more precisely because of) its prominence in the play's definition of his character, Shylock's religion is not to be taken at face value, but rather as an exemplary illustration of the play's mediation of Elizabethan sociopolitical reality for presentation on the stage. Without dismissing the importance of the considerable literature debating The Merchant of Venice's anti-Semitism, I would argue that it is difficult to see Shylock primarily as a representative of Judaism. Shylock's Jewishness throughout the play is less theological than cultural: he is not identified by (and reviled for) his failure to accept Christ or the New Testament, but by his "Jewish gaberdine," his unwillingness to dine with his Christian business associates and especially his usury—in short, his social, economic and ideological alienation from Venice's dominant sociopolitical group.
Rather than a transparent religious designation, Judaism (certainly a flexible signifier in an England virtually devoid of professed Jews) functions in the play as a derogatory marker for a group extant but not fully delineated in the cultural consciousness of the late 16th century, a group characterized by its economic self-interest and its willingness to further that interest by opposing itself to the dominant social ideology: the rising class. If the play partakes in contemporary anti-Semitic stereotypes (greed, social separatism), it does so not in the service of their own furtherance, but in order to transfer those negative associations from the religious to the socio-economic sphere.
The Duke's first speech to Shylock (17-34) employs this transference in linking the trial's economic foundations to its larger social significance. Lacking the prerogative power to pardon Antonio—a power that belonged to the ruler only in criminal cases—the Duke resorts to the considerable extra-legal social power wielded by the ruling class. Antonio's financial straits, he says, should elicit pity and mercy not only from Christian hearts, but "from stubborn Turks, and Tartars never train'd / To offices of tender courtesy" (32-33). The Duke offers Shylock the following choice: either to remain more alien than even the Turks and Tartars in pursuing his suit, or to enter—as has Antonio—the hegemonic penumbra of the aristocracy by changing his pagan "malice" for Christian "courtesy" and economic cooperation. The full weight of the social pressure that the ruling class could bring to bear upon a recalcitrant individual is focused in the speech's final line (particularly in light of the recurring pun on gentle/gentile): "We all expect a gentle answer, Jew!"
In the not-too-distant Tudor past such a threat might well have proven the trump card that the Duke intends it to be. By the 1590s, however, the inviolability of the common law was providing the rising class with an increasingly effective shield with which to resist the Crown's efforts to assert its will over the law. Shylock's response to the Duke links the common law's economic domain, its class affiliation and its ideological status as foundation of the state:
by our holy Sabaoth have I sworn
To have the due and forfeit of my bond.
If you deny it, let the danger light
Upon your charter and your city's freedom!
Throughout the trial scene, Shylock invokes the shield of the common law in the face of Christian attempts to coerce or cajole him by emphasizing his social exclusion or offering him inclusion at the price of his bond. "Till thou canst rail the seal from off my bond," he admonishes Gratiano, "Thou but offend'st thy lungs to speak so loud. /. . . I stand here for law" (139-42).
The lack of formal social submissiveness and regard for hierarchical distinctions implicit in both the substance and the tone of Shylock's response to his aristocratic opponents suggests the ultimate consequence of his common-law defense: the weakening of the sociopolitical hegemony that preserved royalist-aristocratic privilege. In keeping with the play's ideological agenda, this use of the law is presented as a threat to the safety and stability of a Venetian society whose social and juridical similarities to late 16thcentury England would not be overlooked by a contemporary audience. This threat is clearest in Shylock's famous "Hath not a Jew eyes" speech (3.1.53-73).
Read in context—as a response to Salerio's suggestion that Shylock has nothing to gain by enforcing the bond—the speech is not the appeal to universal brotherhood it is often taken to be. Antonio's hostility towards Shylock is rooted in the latter's social alterity—"You call me misbeliever, cut-throat dog, / And spet upon my Jewish gaberdine" (1.3.111-12)—and it is this distinction between Jew and Christian that the speech rhetorically effaces. The result of this effacement, however, is not a pledge of mutual forbearance but a promise of retaliatory violence: "And if you wrong us, shall we not revenge? If we are like you in the rest, we will resemble you in that" (3.1.66-68). For Shylock, the bond's utility is not economic—"A pound of man's flesh," he tells Antonio and Bassanio, "Is not so estimable, profitable neither, / As flesh of muttons, beefs, or goats" (1.3.165-67)—but sociopolitical, through its power as an instrument of the common law to nullify the class privilege that protects Antonio from Shylock's vengeance. This association between the common law and violent social disruption is a crucial element of the play's ideological work.
The ruling class's response to Shylock's threat is presented by Portia. She begins by acknowledging both the validity of the bond (177-79) and the ideological power of the common law's promised consistency that underpins Shylock's confident intransigence. In reply to Bassanio's appeal to the Duke to "Wrest once the law to your authority" (215) she insists:
It must not be, there is no power in Venice
Can alter a decree established.
'Twill be recorded for a precedent,
And many an error by the same example
Will rush into the state. It cannot be.
Consequently, her solution to Shylock's legal challenge—"Then must the Jew be merciful" (182)—at first seems identical to the Duke's. The mercy Portia seeks, however, is not the Duke's unconditional Christian mercy. While the Duke demands that Shylock forgive Antonio not only the interest owed but "a moi'Ty of the principal" as well (26), Portia seeks not the abandonment of the bond but its payment, with justifiable interest, in place of the legal but abhorrent penalty Shylock demands. "Be merciful," she tells Shylock, "Take thrice thy money, bid me tear the bond" (233-34). It was precisely this type of mercy—that which does not mitigate justice for the sake of pity but mitigates (common) law for the sake of true justice—that the courts of equity claimed to dispense. Knight notes the distinction: "The 'Mercy' of the High Court of Chancery's equitable decisions by the Lord Chancellor is not to be confused with . . . simple clemency or empathetic pity . . . for William West says: 'There is a difference between Equitie and Clemency: for Equitie is alwaies most firmly knit to the evil of the Law which way soever it bends, whether to clemency, or to severity' " ("Equity" 95-96). Many in the play's contemporary audience would have recognized Portia's suggested compromise—the payment of appropriate interest rather than the contractually stipulated forfeiture—as a solution typical of the equity courts of the day (Keeton 137).
Like Shylock's use of common law, Portia's invocation of equity has social as well as legal significance. According to the theory of equity which emerged during Elizabeth's reign, while equitable mercy assured the justness of the law, equity's own justness was in turn guaranteed by its origin in the royal conscience (Thorne viii). The monarch's conscience itself was validated by his role as the earthly conduit for divine justice, which by virtue of its source was necessarily superior to, and thus the ultimate venue of appeal from, the merely human common law. William Lambarde, in his Archeion, writes:
And considering that the Prince of this Realme is the immediate minister of Iustice under God, and is sworn at his Coronation, to deliver to his subjects aequam & rectam Iustitiam; I cannot see how it may otherwise be, but that besides his Court of meere Law, he must either reserve to himselfe, or referre to others a certaine soveraigne and preheminent Power, by which he may both supply the want, and correct the rigour of that Positive or written Law. . . . if onely streight Law should bee administred, the helpe of GOD which speaketh in that Oracle of Equitie, should be denyed unto men that neede it.
Accordingly, the court of Chancery was considered the "court of the King's conscience," its Chancellor deputized by the monarch to implement the justice of the royal will, correcting when necessary the injustices perpetrated by the common law by overruling the decisions of its courts. Contrary to the levelling effect of the common law that placed even the sovereign under the law, this construction of legal authority offered a hierarchical ideology which situated the monarch at the terrestrial pinnacle of the legal system.
Portia's response to Shylock's use of the common law is thus the jurisprudential reassertion of the fundamental value and necessity of social hierarchy, replacing his vision of inter-class violence with one of royally-regulated harmony. It is in this light that we must understand Portia's famous "quality of mercy" speech:
The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
'Tis mightiest in the mightiest, it becomes
The throned monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred way,
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice.
Mercy, in short, descends from heaven into the heart of the monarch, allowing him to fulfill his role as the terrestrial conduit of God's justice, with which he "seasons" flawed human justice. In addition to justifying ideologically the supremacy of royal equity, however, Portia's speech also makes clear its practical implications. Her juxtaposition of the monarch's divine equitable authority with his "temporal power" sets up the speech's concluding union of Christian piety and realpolitik intimidation: "We do pray for mercy, / And that same prayer doth teach us all to render / The deeds of mercy" (200-02). The power that equity gives to the Crown by reinstating royal will as the ultimate legal authority assures that one can no more hope to prosper without the king's mercy than without God's, and that one who hopes for such mercy should be prepared to make concessions of his own. Some seven years after the play's composition, King James would make this same point less subtly in his July 1604 rebuke to a recalcitrant Parliament: "Justice I will give to all, and favour to such as deserve it . . . in cases of equity, if I should show favour, except there be obedience, I were no wise man" (qtd. in Kenyon 60).
While Portia replaces the social coercion of the Duke's Christian mercy with an equitable mercy which responds to Shylock's legal defense in kind, the ramifications of both threats are the same for him. To accept Portia's equitable resolution is to surrender his equal legal standing and accede to the existence of a higher legal and social authority. Not surprisingly, then, Shylock spurns Portia's veiled threat, preferring to rely on the power of his position under the common law to indemnify him from the need for royal mercy: "By my soul I swear / There is no power in the tongue of man / To alter me: I stay here on my bond" (240-42). What follows is one of the most dramatic—and ideologically potent—scenes in Shakespearean comedy, in which judgment is pronounced not once but twice, juxtaposing for the audience the results of the competing legal philosophies presented in the first half of the scene.
Portia's deliberations proceed first in accordance with the common law. When she declares the bond forfeit, Shylock esteems her for her knowledge of the law, suggesting the common law's justification of its judges' authority not by their own discretion but by their preeminent ability to administer consistently a time-tested body of law: "It doth appear you are a worthy judge; / You know the law, your exposition / Hath been most sound" (236-38). As the impartiality of the common law requires, Portia's ruling is pointedly faithful to the law of contract, despite her personal desire to offer mercy:
Por: . . . lay bare your bosom.
Shy: Ay, his breast,
So says the bond, doth it not, noble judge?
"Nearest his heart," those are the very words.
Por: It is so. Are there balance here to weigh
Shy: I have them ready.
Por: Have by some surgeon, Shylock, on your charge,
To stop his wounds, lest he do bleed to death.
Shy: Is it so nominated in the bond?
Por: It is not so express'd, but what of that?
'Twere good you do so much for charity.
Shy: I cannot find it, 'Tis not in the bond.
Alongside this emphasis on the strict legality of the procedure, however, is the no less insistent emphasis on the materiality of its outcome: the mutilation and almost certain death of Antonio. Present throughout the trial scene, this linking of common-law principle to its horrific results is unmistakable as the scene reaches its climax. As Shylock approaches Antonio with whetted knife, Portia again reminds us that what we see is the result of the court's obligation to proceed according to the law: "The law allows it, and the court awards it" (303). The result is a vivid and ideologically charged illustration of the irrelevance of the common law's human consequences to its inflexible requirements.
The clear injustice of this strictly legal proceeding is, of course, precisely what the flexible, case-specific judgments of the courts of equity claimed to remedy. Before Shylock can strike, Portia halts him—"Tarry a little, there is something else" (305)—and the trial shifts from the procedures of a common-law court to those of equity. Portia's famous "quibble"—Shylock may have his pound of flesh according to the bond, but on the condition that "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" (309-12)—is a stratagem typical of the equity courts. While the common law traditionally held that if the law granted an individual a right (including the right to take possession of property) it also granted him the means to exercise that right (Andrews 77nA), the courts of equity would often thwart a common-law award by placing such stringent restrictions and protections on the property to be seized as frequently to make the path of least resistance that taken by Shylock, the "voluntary" non-collection of the award (Andrews 66; Keeton 145). The relief and amazement, both on stage and off, at Portia's dramatic aversion of the travesty of justice almost perpetrated by the common law underscores the contrasting results of the two legal systems.
The audience's pleasure in Portia's victory is heightened by the irony of her use of Shylock's insistence on strict interpretation against him: "For as thou urgest justice, be assur'd / Thou shalt have justice more than thou desir'st" (315-16). In doing so, however, Portia has vexed legal scholars by belying the equitable principle most often associated with the trial scene, the mitigation of the strict letter of the law through recourse to its gentler spirit. The reason for this seeming contradiction lies in the political significance of Portia's legal device. While the mitigation of the letter of the law by its spirit or intent was indeed a central tenet of traditional equitable jurisprudence, in Shakespeare's time it was chiefly associated not with royally-controlled equity but with the judges of the common-law courts. Throughout the 16th century, as the limitations placed upon the common law by its codification into written rules became apparent, its judges began to revivify a procedure utilized by their predecessors in the 13th and 14th centuries: the interpretation of a law based on its intent rather than its precise wording (Thomas 515-16). Such an approach was entirely congruent with common-law ideology, basing the authority of the common-law judges to interpret rather than simply apply the law on their unmatched knowledge of its history and principles.
The practice of common-law equity was, of course, opposed by the equity courts, whose authority was based on the inadequacy of the common law to the requirements of justice and the necessity of an alternate source of justice—royal conscience—to remedy that inadequacy. To correct the letter of the law with its spirit was merely to affirm the ultimate wisdom of the common law. For this reason the principle of intent is emphatically not the basis of Portia's equitable decision. Portia herself discounts intent as a means of correcting the defects of the letter of the law when she pointedly acknowledges that the spirit as well as the letter of the law supports Shylock's claim: "the intent and purpose of the law / Hath full relation to the penalty, / Which here appeareth due upon the bond" (247-49). As the play takes pains to indicate, the intent of the law of contract is to protect the sanctity of contracts from external interference in order to ensure the rights of those who do business in Venice, regardless of the specific contents of those contracts.
The principle that Portia applies in reaching her verdict is not the mitigation of the letter of the law by its spirit, but the equally venerable equitable doctrine which holds that equity may mitigate the unjust results of the law's necessary generality by taking into account the aspects of a specific case of which the law takes no notice. This conception of equity is traceable to Aristotle's Ethics, in which he argues that "all law is universal but about some things it is not possible to make a universal statement which shall be correct. . . . this is the nature of the equitable, a correction of law where it is defective owing to its universality" (133; bk. 5, ch. 10). Elizabethan advocates of the courts of equity argued that the common law, in its quest for comprehensiveness and consistency, must operate on a general level and thus could never be made to take account of the "collaterali circumstances" of individual cases (Hake 123). As a result, equity was both necessary and necessarily superior to the common law, overruling the latter when the application of its general rules to a specific case produced evident injustice.
It was this theory of equity that was at the heart of the Crown's claims to legal authority: for even if superior knowledge of both the letter and the spirit of the common law must be conceded to the common-law judges, the individualized requirements of justice were the province of conscience: "the examination of the case by circumstances . . . doth necessarily appertayne to the high courte of Chauncery . . . by an Equity that is drawne from the only conscience of the Lord Chauncellor" (Hake 123). The stipulations in Portia's ruling concerning the spilling of blood and the removal of an exact weight of flesh underline the gruesome specifics excluded from the common law's generality even as they correct the injustice produced by that exclusion. Neither the letter nor the spirit of the law make allowances for contracts like Shylock's; it is left to Portia and equity to mitigate the effects of the law's generality by considering the circumstances of the case at hand, overruling the requirements of the law in order to satisfy those of justice.
The sociopolitical consequences of equity's victory over the common law are immediately and decisively registered in the treatment of Shylock by a legal system once again under the control of the ruling class. During the first half of the interpretational contest, Portia in her role as common-law judge sets aside the scene's emphasis on Shylock's cultural difference, addressing him not as "Jew" but by name. The shift to equity, however, returns social difference and discrimination to the law, indicated by Portia's invocation of the statute specifically criminalizing the shedding of "Christian blood." For the remainder of the trial Shylock goes unnamed, referred to only as "Jew" not merely by his avowed Christian enemies but also by Portia, the representative of justice. This connection between equity and social differentiation casts the freeing of Antonio as a reassertion of the distinctions between classes that Shylock's use of the law attempted to erase.
As Shylock tries to leave the court—"Why then the devil give him good of it! / I'Ll stay no longer question"—he learns that "The law hath yet another hold on [him]" (345-47). Because Portia's equitable reading of the bond has disallowed the shedding of Christian blood as a contractually protected act, Shylock is guilty of attempted murder and thus subject under the criminal law to the forfeiture of life and property. The social basis of Shylock's predicament is suggested by the statute to which he falls prey, the law "against an alien, / That by direct or indirect attempts / [Seeks] the life of any citizen" (349-51).
Such a law is present in none of the sources of the pound-of-flesh plot; moreover, in late 16th-century England all felonies, including attempted murder, were punishable by death and loss of property no matter who the perpetrator (Auden 228; Keeton 146). There is thus no dramatic or historical justification for a law specifically targeting aliens except to emphasize the link between Shylock's social status and his fate forged by the power of the law to discriminate between—and against—social groups or classes: having resolutely maintained his status as cultural outsider, he now finds himself trapped by it. The pleasure we take in Shylock's resultant comeuppance reinforces the play's implicit rebuttal to the common law's central justification, the economic necessity of a law predictable and impartial even to the "strangers" whose "commodity" is so important to the nation. Punishing Shylock's abuse of the common law with a statue that explicitly discriminates against such "strangers" answers the economic arguments of the rising class by implying that despite its potentially deleterious effect on commerce a certain amount of regulation is necessary for the security and moral order of the state.
The reestablishment of the legal authority of the ruling class is complete when the statute places discretionary judicial power directly in the hands of the monarch: "the offender's life lies in the mercy / Of the Duke only" (355-56). Stripped of the common law's protection, Shylock is subject to Portia's earlier threat: his failure to grant mercy to Antonio puts him at the mercy of the Duke. That this mercy is not Portia's equitable mercy but instead the clemency which was the Crown's prerogative in criminal cases (as indicated by the Duke's use of the word "pardon" ) merely confirms the sociopolitical complicity of the two juristic principles.
Their legal power over him established, Shylock's antagonists immediately use it to nullify his socioeconomic threat: the loss of half of his wealth now to Antonio and the other half upon his death to Lorenzo places his economic power in the hands of the aristocracy and its allies, and his forced conversion symbolically completes his absorption by the dominant Christian-aristocratic culture. Notably, despite his earlier denunciation of Shylock's usury, Antonio makes no provision at this point to prevent its continuance; it would seem that the eventual appropriation of any profit made therein by the ruling class does much to mitigate usury's sinfulness. The Christians' true target is not Shylock's economic practice but the social and political ends to which it is employed.
Finally, the trial concludes with a further demonstration of the coercive power granted the Crown by the supremacy of equity that Portia intimates in the "quality of mercy" speech, as the Duke requires Shylock's acquiescence to Antonio's terms, "or else I do recant / The pardon that I late pronounced here" (391-92). Legally at the mercy of his enemies, Shylock can only accede to Portia's ironic query, "Art thou contented, Jew?" (393). Thoroughly humbled, he leaves the court not with the unregenerate curse of his attempted exit prior to the invocation of the law against aliens but with the entreaties of a broken man: "I pray you give me leave to go from hence, / I am not well" (395-96). The trial's last word, however, is given to Gradano: "In christ'ning shalt thou have two godfathers: / Had I been judge, thou shouldst have had ten more, / To bring thee to the gallows, not to the font" (398-400). This taunting valediction, while reemphasizing the "mercy" granted Shylock in sparing his life, at the same time underlines the contingency of that mercy, suggesting how easily his fate could have been that which Gratiano prefers. That it was not is due less to the principles of equity than to the dramatic and ideological appropriateness of a punishment befitting Shylock's social and economic crime.
Seen from the dual perspective of legal and political history, the threat posed by Shylock to the Venetian social order is fundamentally the same threat that Lord Chancellor Ellesmere recognized nearly twenty years later in what was by then one in a growing number of legal challenges to the Crown's sociopolitical hegemony. Shylock's use of the common law represented to a contemporary audience a question not simply of jurisprudential principle, nor even of economic practice, but ultimately of "the power and prerogative of the King." And despite the efficacy of his defeat at Portia's hands in defining and resolving the conflict for the theater-going public in the interests of royal authority, the ideological battle fought in Shylock v. Antonio would prove to be but an early skirmish in the war between the rising and the ruling classes that was to dominate the next century of English politics.
1 All quotations from The Merchant of Venice are from The Riverside Shakespeare, ed. G. Blakemore Evans. References to the trial scene (Act 4, scene 1) will be cited by line number only.
Andrews, Mark Edwin. Law versus Equity in "The Merchant of Venice. " Boulder: U of Colorado P, 1965.
Aristotle. The Nicomachean Ethics. Trans. David Ross. London: Oxford UP, 1961.
Auden, W. H. "Brothers and Others." The Dyer's Hand and Other Essays. New York: Random, 1948. 218-37.
Bacon, Francis. The Elements of the Common Lawes of England. 1630. Amsterdam: Da Capo, 1969.
Cohen, Walter. "The Merchant of Venice and the Possibilities of Historical Criticism." ELH 49 (1982): 765-89.
Hake, Edward. Epieikeia: A Dialogue on Equity in Three Parts. Ed. D.E.C. Yale. New Haven: Yale UP, 1953.
Hill, Christopher. Intellectual Origins of the English Revolution. Oxford: Clarendon, 1965.
Ives, E. W. "Social Change and the Law." The English Revolution 1600-1660. Ed. E. W. Ives. London: Arnold, 1968. 115-30.
Keeton, George W. Shakespeare's Legal and Political Background. New York: Barnes, 1967.
Kenyon, J. P. Stuart England. Vol. 6 of The Pelican History of England. Harmondsworth: Penguin, 1978.
Knight, W. Nicholas. "Equity, The Merchant of Venice, and William Lambarde." Shakespeare Survey 27 (1974): 93-104.
——. "Shakespeare's Court Case." Law and Critique 2 (1991): 103-12.
Lambarde, William. Archeion or, a Discourse upon the High Courts of Justice in England. 1635 (written c. 1591). Ed. Charles H. McIlwain and Paul L. Ward. Cambridge: Harvard UP, 1957.
McKay, Maxine. "The Merchant of Venice: A Reflection of the Early Conflict between Courts of Law and Courts of Equity." Shakespeare Quarterly 15 (1964): 371-75.
Moisan, Thomas. "'Which is the Merchant here? and which the Jew?': Subversion and Recuperation in The Merchant of Venice." Shakespeare Reproduced: The Text in History and Ideology. Ed. Jean E. Howard and Marion F. o'Connor. New York: Methuen, 1987. 188-206.
Phillips, O. Hood. Shakespeare and the Lawyers. London: Methuen, 1972.
Pocock, J. G. A. The Ancient Constitution and the Feudal Law: A Reissue with a Retrospect. Cambridge: Cambridge UP, 1987.
Shakespeare, William. The Merchant of Venice. The Riverside Shakespeare. Ed. G. Blakemore Evans. Boston: Houghton, 1974. 254-85.
Stone, Lawrence. The Causes of the English Revolution 1529-1642. New York: Harper, 1972.
——. The Crisis of the Aristocracy 1558-1641. Abridged edition. London: Oxford UP, 1967.
Tawney, R. H. "The Rise of the Gentry, 1558-1640." Economic History Review 11 (1941). Rpt. in Social Change and Revolution in England 1540-1640. Ed. Lawrence Stone. London: Longman's, 1965. 6-18.
Tennenhouse, Leonard. Power on Display: The Politics of Shakespeare's Genres. New York: Methuen, 1986.
Thomas, G. W. "James I, Equity and Lord Keeper John Williams." The English Historical Review 91 (1976): 506-28.
Thorne, Samuel E. Preface to Hake. v-xii.
West, William. Symboleography. London, 1594.
Whigham, Frank. "Ideology and Class Conduct in The Merchant of Venice." Renaissance Drama n.s. 10 (1979): 93-115.
Subha Mukherji (essay date 1996)
SOURCE: " 'Lawful Deed': Consummation, Custom, and Law in All's Well That Ends Well," in Shakespeare Survey: An Annual Survey of Shakespearian Study and Production, Vol. 49, 1996, pp. 181-200.
[In the following essay, Mukherji studies the legal and contractual obligations of Renaissance marriage dramatized in Shakespeare's All's Well That Ends Well.]
Having wed Helena at the king of Rossillion's behest, Bertram, the king's ward, refuses to bed her and flies to Italy with her dower, leaving a conditional letter for her: 'When thou canst get the ring upon my finger, which never shall come off, and show me a child begotten of thy body that I am father to, then call me husband; but in such a "then" I write a "never" '(All's Well That Ends Well 3.2.57-60).1
Bertram's marriage, overseen by king and priest, counts as a solemnized de praesenti union for all practical purposes. And as Henry Swinburne confirms in his Treatise of Spousals, 'Spousals de praesenti, though not consummate, be in truth and substance very Matrimony, and therefore perpetually indissoluble.' This treatise, written around 1600 but published in 1686, is the only systematic exposition of marriage laws and the first handbook of canon law to be written in England.2 According to Swinburne, the use of long absence as a legal means for escape applied only to de futuro spousals.3
What, then, is Bertram resisting by refusing to sleep with Helena? What is the status of his apparently impossible condition? This moment in the action has been interpreted by critics as the transformation of a legal possibility into a 'Fairy-tale' one, Bertram's stipulation being read as a purely fantastic setting of tasks in the romance mode.4 But such readings fail to account for Helena's meeting of his terms as though they were an actual legal impediment, and her final securing of him in what is, effectively, a court of law. Bertram's instinctive belief that 'not bed[ding] her' somehow counteracts the effects of 'Wed[ding] her' (3.2.21-2) does not stem simply from his own wrong-headedness, but from factors actually present in contemporary English society.
My point of entry into the play's engagement with law will be marital consummation as it figures in Bertram's conduct and Helena's response. I will interpret the concept of consummation in terms of its contrasting roles in Christian marriage and Christian divorce. But the act of sex in the social experience of marriage confounds these two functions, even as it conflates law and customary ritual. Its peculiar status in the play will be shown to hinge on its legal function as evidence. The problems of evidentiary procedure in English church courts provide an important focus for the play's treatment of marriage law. The two main forms of evidence that I will look at are the exchange of rings and pregnancy. My analysis of the ambiguities of evidence will refer to larger theoretical issues of motive and intention that are legally unresolvable but particularly conducive to exploration in drama.
In reconstructing the relevant legal history, I shall use Swinburne's treatise, which I will refer to as Spousals. This represents an attempt to codify as well as interpret the law, since Swinburne was dealing with an area of legislation that was not only supposed to discipline and punish but also to provide moral guidance for social and personal behaviour. Spousals seeks to mediate between legal theory and practice, the written word and the spoken, the spoken word and the sign, all of which constituted marriage as social practice. I shall also be drawing upon a draft fragment, preserved in Durham, which follows the completed Treatise of Spousals in what seems to be the authorial manuscript. Entitled 'Of the signification of divers woordes importing Matrimonye, etc.', this is, I take it, the beginning of the second part of what Swinburne originally intended to be a three-part treatise on spousals, marriage and divorces. I will refer to it henceforth as Matrimony.5
My other group of primary materials consists of surviving records of spousal litigation from contemporary church courts, mainly Durham, Chester, Norwich and Canterbury. Together, these two sets of texts provide a comprehensive picture of law as human action, and the contradictions in such action are dramatized in Shakespeare's All's Well.
The clue to our understanding of the nature of Bertram's conduct lies in the status of sexual consummation in popular custom, which derived elements from the theology, rituals and attitudes surrounding marriage, and its relationship with law. Among the many factors that constituted the overall sense of the accomplishment of a marriage, consummation had a role of special interest and curious standing. Theologically, a sacramental symbolism and sanctity attached to it, as reflected in The Book of Common Prayer. 'For this cause shall a man . . . be joined unto his wife, and they two shall be one flesh. This mystery is great.'6
In law, however, intercourse was not strictly a factor in the formation of marriage in sixteenth-or early seventeenth-century England. The church, which was in charge of matrimonial litigation, held, from the twelfth century onwards, that present consent, and not the sexual act, makes a valid and completed marriage.7 This position was marked by Pope Alexander Ill's promulgation of consent as the basis of the institution, irrespective of either solemnization or consummation. In England, where the pre-Tridentine canon law of marriage survived the Reformation and did not change till 1753, informal or private contracts continued to have claim to legal recognition since consent was still the ultimate and sole criterion of validity. So, consummation was as irrelevant in 'Law' as solemnization; hence the frequent clubbing together of the two by contemporary writers such as Swinburne as well as by legal historians in our own times.8
But given the inevitable confusions, uncertainties, and difficulties of proving consent, unsolemnized marriages were increasingly disapproved of by state and church. Certain 'Legal effects'—property rights and benefits (Spousals, 15)—were made conditional upon solemnization, and Tudor and Early Stuart England floundered through the curious doubleness of a situation where validity and illicitness could coexist in the same union.9 There was tightening pressure from both Protestant and Catholic reformers to regularize marriage, and one of its manifestations was an effort to impress on people that ecclesiastical solemnization alone made sexual union licit.10 The denunciation of intercourse before or without the public ceremony implied, firstly, that solemnization was seen by many as being connected with, indeed, guaranteeing and sanctioning consummation. Secondly, it suggests the association of intercourse with the social acceptance of a lawful union. Even among legal thinkers, there were those who, as Swinburne writes in Matrimony (120-1), made a distinction between 'Matrimony initiate' or 'begunne' and matrimony 'consummate', between 'True' and 'perfect' marriage. 'This word Nuptiae, Marriages', he writes in Spousals, is not necessarily used to mean solely 'The Substance and indissoluble knot of Matrimony only, but doth often signifie the Rites and Ceremonies observed at the celebration of Matrimony' (Spousals, 8-9). It is in terms of a society where 'Rites and ceremonies' were an essential constituent of the customary view and practice of marriage that Bertram's holding out against 'The great prerogative and rite of love' (2.4.41) has to be understood.
However, though it could not normally constitute a marriage in itself, there were a few specific circumstances in which sexual consummation could have a legal function. When a spousal was contracted between infants or between minors, it could be ratified and made into an indissoluble knot by willing cohabitation after attainment of the age of consent.11 Sexual relations could give de futuro spousals between adults the effect of de praesenti marriage; they could also turn conditional spousals into matrimony.
If custom and ritual are major contributors to Bertram's perspective, these situations where intercourse has a proof-value form the other, more distinctly legal influence. Indeed, custom itself must have been conditioned by such legal associations. The witness depositions and the personal responses in contract suits of the period communicate a sense of how the specific legal functions of copulation led to a more general and undifferentiating notion of sex as being a factor that could make an otherwise uncertain match conclusive. In a Durham suit of 1570 for restitution of conjugal rights, cohabitation figures centrally in all the depositions. Isabel Walker's witness Richard Bell, keen to stress the validity of her marriage to William Walker and, thereby, her claims, says that they 'dwelte in house here in Durham togither, as man and wyfe by the space of one yere, or more'. On the other hand, William's witness emphasizes the finality of Isabel's marriage to her reportedly precontracted husband Robert Stathan; he deposes that 'He hath known . . . [them] . . . dwell to gyther in one house as man and wyfe, as this examínate and neighbours thereabouts dyd take ytt'.12
A different legal channel that influenced the way consummation was viewed proceeded from the laws regarding annulment, by which divorce could be obtained by proof of non-consummation in cases of pre-contract, duress, consanguinity, affinity or impotence. The divorce of Lady Frances Howard from the Earl of Essex came through in 1613 when her allegation of his incompetence was confirmed by his admission that 'He could never know his said wife'.13 The background to this law lies in the canonical tradition which associated indissolubility with the 'becoming one flesh' of married partners.14 The question whether a man who, after his betrothal, feels a call to enter religious life was free to do so was met by Pope Alexander III with the answer that he could first marry and then leave off to become a monk if he did not follow up the marriage with carnal coupling. His premise was that the Christian prohibition against putting asunder those whom God had joined applied only to incorporated couples; his precedent, St John's turning to religion from a virginal marriage. But this contradicted the fundamental canonical assumption that consent, not coitus, is the substance—a position he himself upheld. His circumvention of this problem is described by J. T. Noonan as resembling 'A legal trick, of a lawyer's way of satisfying contradictory purposes by keeping form and sacrificing substance, of nominally honoring the oath to marry while permitting the actual subversion of the oath.'15
One way of reconciling the canonical contradiction is to make, as canon law obviously did, a distinction between the model of Christian divorce, provided by St John, and the example of Christian marriage, provided by Mary and Joseph.16 The notion that mutual consent was the essence and physical union was the substance of marriage could thus be kept from a direct conflict and be channelled into two separate legal procedures. But this separation proved all too artificial in social practice. For consummation could function both as a constituent of marriage and as a sign of it. Originally, the constitutive function came into play mostly in clandestine or disputed marriages, while the signifying role was predominant in unions accomplished through the full formalities, being, as it were, an ultimate expression of the marriage. In a court of law, however, the two were easily conflated because in both capacities, the fact of consummation was required to establish certainties, to prove a status. Thus, in a Durham case of 1587, the doubts about the reality of the solemnized marriage of Sir Thomas Gray with Lady Catherine Neville arise because they have 'not cohabited continually'. That the marriage emerges as being viable and valid in court is due to the establishment of the fact that since a certain day they have 'nightly laid in one bed, as becometh man and wife'.17 Anne Yate and George Johnson of Cheshire go through a very different event—a plebeian trothplight match, possibly de futuro, contracted through a witnessed handfast, but unsolemnized. But in the legal dispute over it in 1562, as in the previous case, the deponents confirm the marriage with reference to sexual union, and the causal relation suggested by their phrasing indicates the inseparability of consummation as sign of status and as proof of contract. Oliver Foxe asserts that they were 'Reputid and taken for man and wief amonge their neighboures' 'For they did lye in one house, and nothinge betwix them but a broken wall and a paintid clothe'. Cecilia Key confirms, 'The neighboures . . . did take them as man and wief, in somuche that they have laine together in bed, and so vsed them selves as man and wief.18 Does the importance of consummation here derive from its status as the criterion of indissolubility in the divorce paradigm? Or, from its assimilation into the formalities of making a marriage, and so its association with solemnization instead of consent? It is impossible to tell. What one can perhaps tell is that the deponents did not pause to work out such distinctions before giving testimony.
Thoughts about marriage and related legal actions covered and intertwined the issues of formation and validation of matrimony, as well as of the making and unmaking of marriage. The status of sexual union continued to be a focus of some of the dualities in marriage law, and Bertram's refusal is both a response to, and an expression of this doubleness. On the one hand, Bertram is holding out against the one formality that is left him to resist, having been rushed through the paraphernalia of 'contract' and 'ceremony'. From this point of view it is a token non-completion of the ritual stages of marriage in society. Marital non-cohabitation did draw considerable social attention in early modern England, was on occasions a ground for presentment in court,19 and could even be disallowed by court decree.20 A Yorkshire parochial presentment of 1568 states that 'They say all is well saving that John Pennye and his wif lyveth not to geither.21
But on the other hand, the resisted consummation is not, for Bertram, a mere external formality. Given that the legal validity of a marriage depended on mutual consent, he is exploiting the one remaining channel through which he can express his own consent or lack of it. Thus it comes to represent the substance of marriage, the indissolubility that it stands for in the canonical law of divorce. Here is a reconcilement of the apparently opposite standings of intercourse in the marriage and divorce paradigms that is less sophistical and more instinctive than the one offered by Alexander III. If the rationale behind granting importance to copulation is the idea that it expresses volition, the conflict is resolved. Especially in formally solemnized marriages like Bertram's, where the legally constituent elements are taken up in the self-generating momentum of ceremonies, the contract becomes more clearly an organized event than an expression of individual will; consequently, the post-legal stage of consummation becomes the clearer site of consent. 'I have wedded her, not bedded her, and sworn to make the "not" eternal', he writes to his mother, making a statement about the distinction, in his mind, between what has been achieved by legal form, and a voluntary and meaningful entry into the married state. The duality of the situation is further underlined by Bertram's language; the riddling and the cautious precision in his letters even while at one level he has committed himself—swearing 'To make the "not" eternal'—translates the sense of a lacuna written into the very language of the marriage ritual. The irony remains, of course, that Bertram's very defiance of law takes the form of an action prompted by legal instinct, neither custom nor social attitude being independent of law any more than law can function apart from these.
The transition of 'consummation' from its link with solemnization to its connection with intention is not peculiar to Bertram's psychology. Depositions from the period suggest that men and women did frequently associate the sexual act with 'consent'. The most telling example is that of Mawde Price alias Gregorie whose means of preventing her enforced and solemnized marriage to Henry Price from becoming real was to refuse to let him 'Have . . . his pleasure apon her', and instead, having regular sexual relations, and two children, with her precontracted husband, Randall Gregorie. This becomes the single focus of each of the depositions in this Chester case of 1562, and is clearly regarded by the witnesses as being directly related to consent. Alice Dood's phrasing actually identifies copulation and matrimonial intention; she says that Henry and Mawde did not 'cohabete voluntarle together, nor did consent together as man and wiff'. Matilda Broke's testimony reinforces this equation; 'verelie they neuer consented together'. To Henry Price himself, Mawde's resistance to sex is a sign of the non-reality of the marriage, and moves him finally to seek judicial annulment. Randall, the pre-contracted husband, considers Mawde's refusal to have 'carnali dole' with Henry a sure indication of her 'not [accepting] hym as her husband'.22
Swinburne stresses the legal weight of 'voluntary Cohabitation' in converting child-marriages into 'True substantial Matrimony' and draws attention to the similarity of this criterion to the one that turns de futuro spousals into marriages. He goes on then to distinguish 'Other more feeble Conjectures of kissings, . . . etc.' from those that 'Are evident and urgent, and equivalent to the presumption of Carnal copulation' because it is required 'That this Consent, whereby Spousals are turned into Matrimony, do appear evidenter, evidently' (Spousals, 40-1). Talking of conditional contracts, he says that if the parties know each other carnally 'before the event of the condition', they are 'deemed to . . . yield their mutual Consents to Contract and Consummate pure and perfect Matrimony' (121). Swinburne, we must remember, was a legal practitioner, familiar with custom as well as legal theory. It is significant that his explicit association of consent with consummation is made problematic, if not contradicted, by his resorting to the law of presumption elsewhere. Discussing complicated conditional spousals, he prescribes the 'Favourable Presumption' that 'Is to be preferred in all doubtful Cases' regarding the purpose of any sexual involvement that may have followed (219). If a man bound upon oath to marry one of three sisters lies with any one of them, 'He is presumed to have made choice of her as his Wife' (221). The difficulty of ensuring that this presumption is also the truth of intention arises most clearly in the marshalling of proof. The law of evidence, for all its safeguards against getting the intention wrong, can, more than any other legal endeavour, make 'consummation' an absolute tool, disjoined from its motive. So Swinburne says, 'Spousals do become Matrimony by carnal knowledge, albeit the Man were constrained, through fear of death to know the Woman' (226).23 The process by which Bertram's condition is met in All's Well dramatizes the way in which the contradiction in Swinburne, which is also a contradiction in law, is produced by the peculiar demands of 'evidence'. This is paradoxical, given that the theoretical importance of sex in marriage law was based so largely on the belief that it could be, potentially, the surest proof of consent.
This is not the only way in which Bertram's instinctive 'use' of law rebounds on him. When, desperate not to let the marriage materialize, but powerless, as a ward, to prove duress, he resolves to 'End ere [he] [does] begin' (2.5.26), he is making a mental demarcation between public ritual and a private counterpart in consummation. Neither Helena nor anyone else has doubts about what law vouches to be hers (2.4.41-2; 2.5.79-82). What Bertram denies is the relationship that the contract is presumed to guarantee. He is reclaiming sexual union for the sphere of the personal from the sphere of legal validation. But he does not simply protest through inaction; he further makes consummation the condition for a fuller acknowledgement of the marriage. By himself positing sex as an evidence for Helena to establish the rights of love, he forfeits his rights to a personal scale of criteria. As Helena sets about to realize his condition, consummation becomes more public than ever, and more sharply distinguished from personal consent, by the very virtue of being used as proof, and hence being required 'To appear evidenter' in a legal space.
These reversions are the subject of the following section which will also make clear how Helena emerges as a defendant seeking to validate her marriage, while Bertram corresponds to the unenthusiastic party fumblingly attempting a sort of annulment. Seen within this structure, Bertram's preoccupation with non-consummation is entirely appropriate, and fulfils the legal expectation of a divorce suit. Helena's attainment and use of carnal union is equally appropriate to her own legal purpose. The meeting of the two 'causes' demonstrates schematically the coming together of sign and proof, of formation and validation, and with these, of the principles of union and those of annulment in the practised legality of marriage.
The process by which Helena earns the right to be acknowledged by Bertram as his wife is quasi-legal, but by the time it is completed, it looks like a proper legal validation. That is largely because this development is crossed with another, truly legal pattern of events consisting of the interaction between Bertram and Diana, leading to an actual trial where Bertram has to defend himself against Diana's claim of marriage and her allegation of marital disacknowledgement. These legal events, of course, are instrumental to the successful accomplishment of Helena's project, and stems from the plan to use Diana to set the stage for the bed-trick.24 A Shakespearian creation, Diana stands at the intersection of the legal and the quasi-legal structures, and represents the inextricability of the one from the other. The Bertram-Diana part of the play illuminates the nature of Helena's use of evidence by exploring the ambiguities of proof in a more clear-cut legal framework.
The relationship between Bertram's condition and its fulfilment is also one between a promise and its performance, terms and their enactment, and so, between word and deed. In contract law, a bond, the common device to secure contractual settlements, was finalized by using a 'deed'—the term describing a document under seal. By the beginning of the seventeenth century, the notion of contract had already begun to extend from its original sense of 'A transaction . . . which transferred property or generated a debt' to include the modern sense of a consensual pact, an exchange of promise between individuals—a meaning formerly borne by the word 'covenant'.25 Such agreements being transient events, the 'deed' is what made them concrete and gave them legal validity.
An examination of the principle underlying this importance of the 'deed', however, reveals its origins in evidentiary problems. In medieval town courts, a contract that had not been observed could be proved by the oath of the plaintiff. This inevitably began to be felt as inadequate: the very need of proof in this matter was prompted by an awareness of the elusive and indeterminate nature of words. This is what led to law's sharp distinction between mere words on the one hand and action or deeds on the other. By 1321 it was legally prescribed that 'The only acceptable evidence of a covenant in the royal courts was a deed'.26 In its original sense of an exchange of property, a contract had to be executed in order to be effected—there was no notion of sueing an unperformed contract. When its sense expanded, the function of performance was taken on by the act of sealing the document of contract in front of witnesses—something done, and hence a deed. From this, its original meaning in law, the word 'deed' came to be applied by transference to the product of the event—the document itself. Thus, a deed was both what made a contract in the legal sense, and what proved it. As well as being often signified by gestures such as a handclasp, it was itself a sign of the agreement.
The particular relevance of the word-deed hierarchy in marriage law is brought out through the liaison between Diana and Bertram. Persistent in his efforts at overcoming Diana's maidenly resistance, Bertram remonstrates, 'How have I sworn!' (4.2.21). Diana retaliates immediately that his oaths 'Are words and poor conditions', and insists on a seal. This is not simply a metaphorical way of disputing Bertram's sincerity but a legal argument; an attempt to steer Bertram's private declarations into a contract that can be proved later in a legal event which, as she knows and he does not, has already been planned.
The explicit use of terms from contract law in connection with professed commitments of love dramatizes an actual link between spousal and contract litigation. Actions against breach of faith that came up as part of the church courts' bulk of marriage litigation were allied in principle to common law actions for breach of contract. Besides, there actually existed a common law action for breach of promise of marriage.27 Likewise, contract suits formed a sizeable portion of the church courts' business in the sixteenth and seventeenth centuries, and the practice of settling for cash was comparable to the common law action.28 The law of contract, after all, is essentially the 'Law of obligations', as Baker puts it, one that 'governs those expectations of good faith which arise out of particular transactions between individual persons'.29 This is exactly the issue in many spousal cases surviving from Tudor and Stuart times. Baker goes on to explain that this type of obligation could be dealt with either in terms of 'The right to performance of the contract or of the wrong of breaking the contract and thereby causing loss'. Helena's performance and validation of a conditional contract in the shape of Bertram's letter, and Diana's sueing Bertram for denying marital obligation dramatize these two complementary processes. The demarcation of the spheres of common law and canon law, thus, is among the several polarities that the play breaks down, in representing overlapping spheres of social experience.
When Diana expresses her misgivings about the 'unsealed' nature of a verbal promise, Bertram's reply supplies the possible nature of the deed that can seal it—
Change it, change it.
Be not so holy-cruel . . .
Stand no more off,
But give thyself unto my sick desires.
It is the act of sex, tacitly agreed upon thereafter, that Diana refers to when she talks of the need to 'Token to the future our past deeds' (64). It is this, again, that Helena has in mind when she anticipates the 'Lawful deed' planned for the night.
The marriage contract in Renaissance England can be seen as having consisted of a word component—the expression of present and mutual consent, and a deed component—the physical act of consummation. Like the written document in contract law, then, sexual intercourse is, potentially, what will clinch the private and unwitnessed agreement between Bertram and Diana as well as provide the evidence which Diana cynically suggests will be needed; it will draw his unsealed words into a legal 'deed' and ratify the verbal contract of espousal by performance.
The identification of the promissory and sexual components of a spousal pact with the verbal and the performative respectively, and of these, in turn, with the initial and legalizing aspects of a contract, was an element in the contemporary perception of the legality of marriage. This comes across in such court records as Matilde Price's personal response in the case of Price v. Price discussed earlier:30 'necque habuit carnalem copulam cum dicto Henrico, nec quia ex parte sua necque ratificauit hoc matrimonium re aut verbo . . .' [(she) neither had carnal copulation with the said Henry, nor on her part ratified this marriage by word or fact]. This is a case where the validation of an unsolemnized precontract and the invalidation of a solemnized marriage turn on the establishment of the fact of non-consummation in the latter; where verba becomes entirely secondary as the dispute in court diverts all attention to the superior ratifying power of res, which in this instance is 'carnal copulation'.31 One of the meanings of the word 'Ratify' in the sixteenth century was in fact 'To consummate' (OED, sense 3).
The 'deed' that is accomplished in All's Well through Diana's intervention, however, ratifies Bertram's earlier conditional contract with Helena, not his present one with Diana. It is the bed-trick in which all three senses of 'deed'—action, sealed contract and copulation—come together. The instrumentality of the sub-plot for the main plot, and their analogical relation highlight the fact that their distinctness is symptomatic of deeper divisions within the legal action in the main plot. One of the demonstrable instruments of the interlacing of plots is the pair of rings set in circulation by Diana. In serving this function, the rings as tokens of marriage and of intercourse alternate between two configurations in their relation to 'deed'.
While Bertram suggests sex as the seal called for by Diana, Diana demands his ring. This is the first ring to draw the audience's attention. Bertram's giving of it is analogous to a deed or to the signing of a 'deed', either of which can be a seal on an agreement. This takes us right back to Swinburne's discussion of the role of the verbal formula. It is in asserting the assumed function of words in making a marriage that Swinburne is faced with their potential inadequacy, even treacherousness. He does ultimately hold up the validity of the de praesenti formula, but in the very process of confirmation, he has to concede that
mortal man cannot otherwise judge of Mens meanings, than by their sayings for the Tongue is the Messenger of the heart; and although it sometimes deliver a false message, yet doth the Law accept it for true, when as the Contrary doth not lawfully appear.
As court records show, the contracting parties were the least likely, especially at the moment of spousal, to be verbally precise, and not sure to be conversant with legal formulae; the witnesses were often uneducated and were mostly reliant on memory. Moreover, spousal disputes brought to court frequently involved secret contracts, with no witnesses to testify.
It is in recognition of such inadequacies or unavailability of the 'Word' as evidence that Swinburne offers the exchange of rings as a possible solution (Spousals, 86). Moreover, he grants the ring a special position among the non-verbal signs that take on a demonstrative or validating function—deserving to be spoken of 'before all other signs' (207).32 The giving and receiving of a ring was, indeed, one of the commonest gestures invested with special matrimonial significance in the period. The surviving depositions convey a vivid sense of why rings had such a hold on the popular imagination and how the imperatives of certain actual situations harnessed their symbolic importance to a legal one.33
Typically, rings assumed the greatest legal significance in settling disputes concerning unwitnessed and unsolemnized contracts, where material proofs were often the only available evidence.34 In the case of Thomas Allen v. Alice Howling of Norfolk (1562), the determining factor is a 'Ring of gould'. In her personal response to Thomas's claim of matrimonial rights, Alice denies her alleged receipt of this ring 'In the waye of matrimony'. But her attempt at freeing herself is thwarted by John Smith and William Walker, who testify, in almost identical terms, that Thomas gave and Alice accepted the ring as an acknowledged token of present marriage.35
The popularly perceived value of ring-giving as a symbolic and integral ceremony in a matrimonial context derived, paradoxically, from its traditional association with solemnized weddings in facie ecclesiae; thus it almost lent a semblance of formality to clandestine marriages. The formalizing and mnemonic qualities of the ring come together in George Haydock's deposition about the runaway Sothworth couple of Chester (1565): 'What wordes were spoken betwene the parties, he certenlie cannot declare, biecause he did not marke them well'; what he does remember, though, is that 'gold and silver was put on the boke' and 'A ringe [was] put on her finger'.36
In Southern dioceses too, the Puritan challenge does not seem to have revolutionized custom.37 In the Canterbury case of Wanderton v. Wild (1582), the ring clinches a contract—much in the manner prescribed by the pre-Reformation order of matrimony38—and gives a de futuro spousal the sanctity of present marriage, at least in the eyes of the deponents. After the parties uttered words of pledge to each other which, predictably, 'He remembreth not', Michael Haell, a witness to the contract, said to them, 'If you receaue any such thing as you pretend conclude the matter as it myght to be done els I will not medie in it.' 'Then the said Wanderton took the said Agnes by the handes', and they uttered what was, roughly, the formula of a de futuro contract. 'Then they losed ther handes, and Wanderton gaue her a Ring gelt saying to her take this as a token that you have confessed and I the like to you, you to be my wife and I to be your husband [ . . . ] and she receaued the same Ring thankfully' (176). Haell's claim is that they are well and truly married.39 This bears out the popular currency, in some places at least, of the legal provision set out but qualified as being practically unsound by Swinburne—that in spousals de futuro, 'When as on[e] and above the words, there is an Accumulation of some Act joyned therewithal . . . For example: . . . the Man delivereth to the Woman a Ring, . . . hereby the Contract is presumed Matrimonial' (Spousals, 71). The delivery of a ring here has the status of an act or deed.
This is the function made to serve by Bertram's 'subarration' to Diana, which, in conjunction with his words, would technically count as a promise of marriage:
Here, take my ring.
My house, mine honour, yea my life be thine,
And I'Ll be bid by thee.
We have, here, not only an evocation of the familiar situation of a private contract, and its characteristic method of establishing a formal context, but also the associated possibility of later dispute already present in the inception.
What Diana engineers, however, is an exchange of rings. This accords an altogether more complex set of values to the rings by the time they resurface together at the end, to constitute the comic and legal resolutions. While the course of Bertram's ring gets deflected from its original path through the introduction of Diana, a new ring is imported by her dark promise to Bertram:
And on your finger in the night I'Ll put
Another ring that, what in time proceeds,
May token to the future our past deeds.
In its promised exchange with the first ring, it has already become associated with Diana's virginity—'Mine honour's such a ring. / My chastity's the jewel of our house' (4.2.46-7). This is the jewel Diana pledges in return for Bertram's family jewel. In deed, though, it is Helena's chastity that is going to be its operative but invisible counterpart. The bawdy sense is reinforced by the verbal echo of Bertram's letter to Helena which posited, by linguistic juxtaposition, a cause-and-effect relationship between getting the 'Ring upon [his] finger' and showing 'A child begotten of [her] body' (3.2.57-9).
Bertram's language is deliberately rendered ambiguous by Shakespeare to suggest an unmistakeable sexual meaning; 'The ring . . . which never shall come off (3.2.57-8), with its multiple suggestion of a spousal ring with its eternal associations, Bertram's heirloom and the yet uncracked ring of Helena's virginity. It was, in Painter, far more clearly and singly the specific ornament belonging to Beltramo: 'I do purpose to dwell with her, when she shal have this ring (meaning a ring which he wore) vpon her finger, and a sonne in her armes begotten by mee.'40 The change from 'Her finger' to 'My finger' and from 'This ring' to 'The ring . . . which never shall come off not only permits but invites a sexualized reading, and strengthens the syntactical link between the two conditions. It is this metaphorical connection that is taken up by Helena and literalized during the bed-trick.
The literal and bawdy meanings of 'Ring' in Bertram's statement of his first condition are, however, taken apart and met separately, even as Helena's agency is divided between herself and Diana. Thus, the actual ring on Bertram's finger that Helena has to get in spite of his resolution that it 'never shall come off (3.2.-58) has already been obtained by Diana. But while its procurement was meant to be a proof of Helena's cohabitation with Bertram, it becomes an alleged token of his marriage to Diana in the scene of arbitration, and a confessed token of his supposed sexual deeds with her. Meanwhile, Helena's pregnancy takes on the role of signifying his actual 'deed' with Helena. This splitting of functions foregrounds the separation between the woman Bertram thinks he sleeps with, and the woman he actually penetrates. His ring gets reconnected with Helena's conception only at the very end, a connection that is explicitly underlined by Helena's words:
There is your ring.
And, look you, here's your letter. This it says:
'When from my finger you can get this ring,
And are by me with child', et cetera. This is done.
This is at once a realization and restatement of the implied connection between ring and sex in Bertram's letter, and a reuniting of divided agencies in the figure of Helena—a covering up of the many divisions through which her husband has had to be 'doubly won'.
Meanwhile, the second ring, the actual jewel that Helena has put on Bertram's finger 'In the night', spotted by Lafew as Helena's and by the king as his own gift to her, is defined ultimately as a proof that Bertram 'Husbanded [Helena's] bed at Florence', since it is clear that 'This ring was . . . hers' (5.3.126-7). Part of the raison-d'être of this ring is its necessary role of providing additional support for Helena's claim of Bertram's paternity of her yet unborn child. Without this token of intercourse between Helena and Bertram, it would be less clear that Helena's conception followed from Bertram's night of pleasure in Florence.
Thus, if the first ring was initially analogous to the action or 'deed' that seals an oral contract, its later use as a sign of Bertram's supposed activities with Diana, and the use of the other ring as a seal and token of his actual congress with Helena, point to yet another relation between ring and deed in the play. 'Deeds', as what the rings, with their spousal and sexual associations, will help make evident, becomes clearly the act or acts of sex. Originally posited as a more reliable expression of intention than words, 'deeds' have now themselves become something to be proved; they, no less than words, are signs to be interpreted.
The special position given to rings by Swinburne and their centrality in the popular perception of marital obligations are borne out by their importance in the final episode. A scene of reconcilation and spousal negotiation quickly darkens into one of arraignment, as the 'Amorous token for fair Maudlin' (5.3.69) is recognized by the king as the 'Token' by which he would have relieved Helena, and as Bertram stakes all on it:
If you shall prove
This ring was ever hers, you shall as easy
Prove that I husbanded her bed in Florence
The trial structure of this scene is officially established upon the delivery of Diana's letter. Stating with legal precision her claim of marriage, and clearly setting out the charge against Bertram, this letter takes the place of a libel which is defined by Henry Consett as 'A Writing which containeth the action' in his account of the practice of the church courts in Renaissance England. Here, of course,41 the court is presided over by the king, instead of a doctor of law, but the royal presence itself is another factor which defines the legality of the space in the disclosure scene.42 Diana's very phrasing—'And a poor maid is undone' (141-8)—evokes the ambience of the sex-related litigation of the church courts—recalling numerous pleas by women claiming to be used, deceived or abandoned. The legal situation gets wholly formalized with the king's declaration of his suspicion and the countess's call for 'justice' (152-6).
In this set-up, the rings become the exhibita or material objects produced in court to support allegations. Diana's presentation of the first ring—the one given her by Bertram—is clearly accorded a higher truth value than other forms of evidence such as witness testimony. When Bertram casts aspersions on Parolles's personal credibility, the king points out, 'She hath that ring of yours' (212).
The terms in which the characters respond to the rings suggest at least one of the reasons behind their evidentiary impact. The entire drama around the first ring starts when it catches the king's eye—'For mine eye, / While I was speaking, oft was fastened to 'T' (82-3). Bertram's denial that it ever was Helena's is met with the Countess's assertion, 'Son, on my life / I have seen her wear it' and is corroborated by Lafew's 'I am sure I saw her wear it' (90-2). One remembers depositions like Christabell Andro's, who recounts the contract between William Headley and Agnes Smith, as well as registers its reality entirely in terms of images—'she . . . sawe the parties contract and gyve ther faith and trewth to gither . . . ; and the said William gave the said Agnes one pair of glowes and a bowed grote, and she gave unto . . . William one gold ring'.43
It is the impact of 'Ocular proof' that Diana exploits when she presents this ring dramatically in court—' . . . O behold this ring' (5.3.194). The Countess immediately notes, 'He blushes and 'Tis hit' (198). But Diana has hit the mark in more senses than one. Everyone else in the assembly reacts as much as Bertram does, and the Countess declares at this point, 'That ring's a thousand proofs.' (202) As Swinburne puts it, 'Not to be, and not to appear, is all one in Construction of Law' (Spousals, 181). The function of proof, therefore is to make the truth apparent or visible. Enargaeia was defined by Aristotle as an exercise which represents an object before the eyes of the viewers, and the Latin word for enargaeia, suggestively, is evidentia.44
Significantly, however, most of the deponents one encounters do not—and cannot—actually reproduce the incident or the facts they are seeking to ascertain. Rather, they attempt to narrate them vividly. Evidence, thus, involves an exercise in re-presentation and hence, inevitably, a metonymic relation between the truth sought to be proved, and the sign that is meant to evoke it. Even exhibits—be they letters, handkerchiefs, deeds or rings—are legal tokens. The way they make things evident is by symbolically or associatively evoking an entire situation before the eyes of the judge. The necessary translocation involved in evidentiary practice is dictated by the fact that the action or the intention to be proved cannot literally be shown in court, and yet has to be somehow made apparent. The inadequacies and ambiguities of this process gain a specially concise focus in the context of marriage law in which the crucial events and factors to be established were usually private acts and utterances, and very often the specific act of sex. All's Well's dramatization of this area of law highlights a condition common to the theatre and the church courts. Both are faced with the task of often having to represent and legislate a realm removed from the public space of the stage or the court. Both, therefore, have to devise their own enargaeic modes to show what must necessarily be absent from this space but what is, at the same time, central to their motives of representation. The ring, here, inscribes this phenomenon, by virtue of its metaphoric valencies and its role as a 'Monumental' token (4.3.18). Legally as well as theatrically it bodies forth what must lie outside the limits of representation.
This is part of the larger problem of an uneasy relation between intentionality and legal truths revealed by adventitious proofs. When the king confronts Bertram with the evident truth that Diana 'Hath that ring of [his]', what Bertram denies in self-defence is not the fact that he gave it to her, nor indeed the implied fact of intercourse, but the matrimonial intention that is assumed and alleged to have informed both these acts (5.3.213-22). Exactly this argument is given by many defendants in debates over love tokens, especially rings, in disputed contract suits from the period. Alice Cotton of Canterbury says she received Thomas Baxter's gifts as 'Mere gift* and not 'In . . . waie of marriage' (1574).45 What comes closest to Bertram's disclaimer is perhaps John Smith's distinction between the use of tokens for a sexual contract and for a marital one in his personal response against Christian Grimsdiche's libel in a Chester trothplight case of 1562: 'beynge askid, for what intent' he gave her tokens, 'He sais, because he had, and wold have, to do with her, & knew her Carnally; & not for that he wold mary her'.46 Such disputes highlight the difficulty of assessing the intention of the giver through the perception of the receiver and of others. From their position of privilege over the spectators or the judge at a law court, a theatre audience would have seen enough of Bertram and heard enough from him by the time he is brought to trial, to be clearly struck by the fallacy of a 'Reasonable inference' of 'Wedlock' from the fact of Diana's possession of his ring.
The 'second' ring—the one that has travelled from the king to Bertram via Helena and Diana respectively, to surface in court as a proposed gift for Maudlin—turns out to be no less dubious a proof of intercourse and identity than the first ring is of spousal subarration. It is, of course, established that this ring was Helena's at one time, something that Bertram was confident could never be proved; but law's natural conclusion from this contingency, that Bertram 'Husbanded her bed in Florence', completely eschews the question of intention in applying the formula for a valid marriage. Bertram thinks he sleeps with Diana, and if that act is to seal any marriage, it is his with her—as indeed it legally would—since the 'news' of Helena's death, arriving before the bed-trick, has met the stipulation of Bertram's de futuro spousal to Diana (4.2.72-3). The fact that he is 'quit' (5.3.301) is due to an arbitrary separation of fact and meant truth in the 'deed of darkness' in Florence.
The connection between this legal fiction and evidentiary law's reliance on what is visible is something Swinburne's Spousals is aware of: 'For proof is not of the Essence of Matrimony' (Spousals, 87).47 But 'Although . . . he which is the searcher of the heart doth well know their deceit and defect of mutual Consent', yet the 'judgement of Mortal man' must pronounce them married since 'The contrary doth not lawfully appear' (85). Hence such paradoxes as 'This deceit so lawful' 'Where both not sin, and yet a sinful fact' (All's Well, 3.7.38, 47). Hence, too, the irony that though 'not bedding but consent makes marriages' (Matrimony, 120), it is the bedding that, in this instance, proves it. The darkness and the silence that are the conditions for the bed-trick come to stand for the limits to the vision of the mortal judge, for what cannot be made evident either visually or by narration in a temporal court of law. Bertram's conditional pledge of love—'If she, my liege, can make me know this clearly'—touches precisely on the discomfort surrounding the knowledge law brings, but it is immediately forestalled by Helena's assertion—'If it appear not plain and prove untrue . . . ' (All's Well, 5.3.317-19). Helena's answer, in collapsing the gap between cognition and legal certification, articulates the rules that operate in the world of the play, as in law.
The Swinburnian unease around error and the inadequacy of law to accommodate its moral implications lies at the core of the bed-trick. In Matrimony, he states clearly and unproblematically that marriage contracted by those who 'doe not consent . . . for that they be . . . seduced by Error mistaking one person for another' 'Is of no moment or effect in Lawe' since matrimony must be a 'coniunction of . . . myndes' (121-2). But where the issue is not mere definition but ascertainment of status in the case of a complex human situation, law and its agents have to face a dilemma. Thus, the bed-trick cannot be 'Lawful meaning in a lawful act', since the act is joint, and involves two meanings.48
The bed-trick is a fictional situation that singles out a potential for fiction in law itself, by which the difference between the singleness of fact and the plurality of truth is collapsed, and a status is presumed. Its likeness to a legal fiction is highlighted by the mendacious means it adopts to achieve an ostensibly ethical end. It is no surprise that Helena, law's most self-aware user, should embody some of the dualities that the play's movement, largely through her energies, seeks to harmonize. To claim the honour that is hers, she has to 'steal' it surreptitiously (2.5.81) by becoming, as it were, a 'girl' of Italy, to make Bertram 'captive' to her service (2.1.21-2). The law trick that is the specific instrument of Helena's design turns on a logic familiar to a Renaissance English audience, but it acquires a specific status by being used in the context of subtle and strategic double-dealing by the heroine at her most 'Machiavellian' in the very land of plots and policies.49
But Helena's Italianate plotting does not ultimately create a simply negative sense of unsavoury cunning; nor is law reduced to a sceptic's quarry. Her character is in many senses Machiavellian in a positive way, and, paradoxically, her use of law and its particular literary location, even while they demystify law, result in a configuring of it as a peculiarly human and contingent measure. Her very first soliloquy (1.1.78-97) signals a transition in her attitude to fate, from passive resignation to a belief in the space it allows for individual enterprise—'The fated sky gives us free scope.' The only hindrance to exploiting such 'scope'—a concept akin to Machiavelli's occasione —is our 'slow designs'.50 Her tough-minded confidence in possibilities and the expedient and inventive effort with which she sets about to achieve these brings her in line with the prudent protagonists—often heroines—of the novellae, whose industria is usually their main capital.51
The dual associations gathered by law in the course of the play lend the ending its distinctively mixed flavour. After the rapid escalation of legal dangers and implications in the final scene, Helena's spectacular entry must seem a relief in the immediate context, indeed some sort of a salvation. Back in Rossillion, Helena has shed her Italian character, and apparently displaces the world of sexual intrigue and precise legal wrangles as she steps into Diana's place to take over the limelight. She is not to be seen as one of those 'clamorous and impudent' women litigants that the likes of Lord Keeper Egerton and Chancery counsel Anthony Benn were, at the time, denouncing and attempting to keep out of the courts.52 As in the bed-trick, so here, the status of an event is transformed by the replacement of one woman by the other: the lustful defiling of the 'pitchy night' and its legal and obligatory consequences are taken on by the Bertram-Diana sub-plot, while the central relationship of the play is strategically cleansed of its more degrading associations, and prepared for the 'Renown' of the 'end'.
The moment that registers this change is when Helena and Bertram are brought to face each other for the first time in the scene, through Bertram's voluntary interposition. In response to the king's wonder at what seems to him an apparition—'Is'T real that I see?'—Helena says,
No, my good lord,
'Tis but the shadow of a wife you see,
The name and not the thing.
Even as the teasing, paradoxical mode of speech gets sublimated here into a medium that brings romance to the verge of anagnorisis, Bertram remonstrates, 'Both, both. O, pardon!' (310). If the bed-trick was the symbolic moment of the split between meaning and action, 'The name' and 'The thing', the present exchange between Bertram and Helena marks, no matter how fleetingly, the healing of these divisions in an act of forgiveness. An appropriate atmosphere is provided by Helena's self-presentation, aided by Diana, which creates an aura of miracle heightened by the regenerative associations of pregnancy. This sense of the wondrous is the main constituent of the romance mode which acts here as an equivalent of the social rituals that transform marriage from a contract into a mystery.
Yet the transition is not seamless. Even while status is attained, the contractual basis of marriage is not let out of sight. The particular instrument for sustaining this awareness is the continued and insistent mooring of the scene in the details of marriage law. Helena's achievement is to have foiled Bertram's attempt at seeking a divorce by establishing the fact of cohabitation: this is the specific significance of her staking 'deadly divorce' on the indisputability of the proofs of having met his terms (320). Thus, in the indistinct but comprehensive area covered between the two, both the marriage and the divorce paradigms behind their 'Legal' actions get taken up and pursued till the end of the play where, finally, they are tied together.
Sex having been in All's Well the very site of a radical absence of volition, its centrality to the sacramental notion of indissoluble matrimony, which ostensibly contributes to the magic of the final reunion, extends the paradox of the earlier action. Swinburne's explanation of why 'Marriage is that great Mystery' is germane to what the pregnant wife's appearance relies on for its 'Miraculous' impact: 'By Marriage the Man and the Woman are made one Flesh, so they are not by Spousals.' it is in the absence of such a union that he declares 'Spousals' to be 'utterly destitute of . . . mystical effect: And . . . Marriage is greater than Spousals . . .' (Spousals, 16). In All's Well, 'Making one flesh' is in a sense what turns a spousal into matrimony, but the mystery around the incorporation of man and wife is at least partly replaced by consummation as an instrument of law and custom.
As the external symbol and visible outcome of this incorporation, Helena's pregnancy plays a crucial role in foregrounding the contractual basis of the revalidated union. While its procreational and promissory implications introduce a sense of romance quickenings, the function it serves in the resolution of the plot is legal. It is framed as an Ocular proof of the sexual consummation stipulated in Bertram's letter: 'One that's dead is quick—/ And now behold the meaning!' (5.3.305-6).53 This is in many senses a scene of remarriage—a familiar scenario, where the fact of intercourse acts as the single validating seal that at once proves and forms matrimony. Bridal pregnancy by itself was common enough in Elizabethan England;54 and though prenuptial fornication was a punishable offence, in practice, judicial attitudes to it varied according to local custom, and were often quite tolerant where honourable intentions were clear or marriage had already followed.55 But the remarriage in All's Well takes place not in church but in a virtual court. The visual resonances of a pregnant woman turning up in open court would evoke associations of incontinence and fornication—charges often spurred by illicit pregnancy. 'Pregnancies', Ralph Houlbrooke asserts, 'Always figured prominently among the presentments made'; and, as he further puts it, 'Rather more women than men were normally presented, because a pregnant woman was bound to be more conspicuous than her partner'.56 As far as Bertram's conscious intention defines the deed that Helena's pregnancy proceeds from, the result is indeed symptomatic of the typical situation; only, it is transformed here by Helena's intention and her triumphant use of 'Occasion'. What lends the legal connection of the scene its specific dubiousness is the combination of the marital and the evidentiary purposes behind Helena's action. As often in disputed suits of this kind, what is still at stake, implicitly, is Bertram's agency in the conception. In Shakespeare's time, determination of paternal identity was a troubling legal issue.57 We have Swinburne's own pronouncement on the matter, in his discussion of why 'Wedlock [is] called Matrimonye rather than Patrimonye': 'The mother is alwaies more certein than the father and truthe is stronger than opinion' (Matrimony, 118).
It is interesting to note one of Shakespeare's modifications of this source story. In Painter—as in Boccaccio—Giletta was 'brought a bedde of twoo sonnes, which were very like vnto their father . . .' . She enters Beltramo's banquet not pregnant but with these two, their resemblance to their father being posited and accepted as manifest evidence of paternity, strengthening the implication of her possession of his ring: 'For beholde, here in myne armes, not onely one sonne begotten by thee, but twayne, and likewise thy Ryng. . . . the Counte hearing this, was greatly astonned, and knewe the Ryng, and the children also, they were so like hym.'58 If Shakespeare had left this episode unchanged, he would still have had the opportunity to evoke legal associations, for facial similarity has been known to have been a factor in establishing the father's identity in church courts.59 But pregnancy as a presence in court was potentially more scandalous because there was an unavoidable uncertainty surrounding paternity and, by implication, a potential for the use of pregnancy for manipulation. It was not unknown for women to claim marital rights by offering their conception as proof of cohabitation. The motives could be various—as Martin Ingram puts it, women resorting to law to pressurize men into marriage could be 'naive, scheming, or . . . desperate'.60 Among them, pregnant women not only had a stronger incentive but were 'In a better moral position to attempt coercion' than others.61 They were also likely to receive local backing, not least owning to a concern about the threat of bastardy to the poor rates.62 In the Salisbury case of Diar v. Rogers (1609), Henry Rogers is said to have promised that 'yf he did beget the said Alice with childe, that he would marry with her'. The witnesses for the manifestly pregnant plaintiff Alice Diar keep harping on the obligation that her conception has placed him under; as Alice Tante (?) puts it, it is 'In the respect of the said Henry Roger's faythfull promise [that] the said Alice offered her selffe to be begotten with child by . . . Henry'.63 Even unconfirmed claims of pregnancy could create enormous pressure and a climate of opinion hard to cope with.64 Not only can such a situation, irrespective of the truth or spirit of the alleged promise, be conducive to enforcement; the pressures incumbent on the defendant of such a suit are even known to have tempted women to have 'deliberately sought to become pregnant to induce the man to marry her'.65 Such is the lingering sense of uncertainty that Bertram articulates, when he takes a faltering step back from his spontaneous 'Both, both. O pardon!' to qualify his acceptance of the situation:
If she, my liege, can make me know this clearly
I'Ll love her dearly, ever ever dearly.
In a play where comic law operates through actual legal means, and recognition is arrived at through a trial, the incertitude surrounding the legal knowledge undercuts the absolute nature of the anagnoristic moment. This marriage, for all that the providential emplotment of Helena's 'course' suggests, is made not in heaven but in the bawdy court. Where the king is overwhelmed into a typical romance reaction (307—9), the audience would be aware that the inevitable outcome of the discovery has as much to do with legal logic, by which the church court arbiter would probably order Bertram to take her back and live with her as married people should.66
As ever, though, it is in the figure of Helena, the employer of the legal tricks for the 'Miraculous' ending, that the comic energy of the play as well as its use of law acquires a more complex status than mere stratagem can lay claim to. In her, policy and genuineness, simulation and sincerity, power and powerlessness have been inextricably compounded from the very beginning: 'I do affect a sorrow indeed, but I have it too' (1.1.51). It is this spirit that she infuses into the final scene. When she appears in court, big with child, her condition—betokening the triumph of her initiative—becomes a means for the strategic adoption of a traditional image of the obedient wife whose pleasure lies in being acted upon by her husband, a calculated evocation of domestic sanctities, so 'That man [can] be at woman's command, and yet no hurt done!'67 Yet, as with the women 'Who', in the words of The lawes resolutions of women's rights (1632), could 'shift it well enough' in the legal world of early modern England,68 this is not simply a camouflaging of Helena's agency. It is also a pointer to her real vulnerability and, in an odd sense, passivity in the emotional transaction contained in the quasi-legal one. When she says, 'O, my good lord, when I was like this maid / I found you wondrous kind', her utterance is a gentle reminder to us that her active plotting has had to be executed through a virtual loss of identity in the act of sex; its humour lies in her acknowledged sexual enjoyment of even this imperfect emotional experience (5.3.311-12). As far as she is concerned, the seamier aspects of what has passed are not simplemindedly forgotten but deliberately put behind: 'This is done', she says, after curtailing her recitation of Bertram's conditional letter with a significant 'et cetera' (315). Peter Hall's 1992 production, appropriately, made Helena tear up the letter—which is also the contract—as she spoke these words.
Through her, then, law is finally felt to acquire a more positive value than merely being a sceptical alternative to either the vera philosophia or the perfect science that it was considered to be in some of the most prominent humanist traditions of jurisprudence. It emerges, rather, as an art of the probable, that involves prudence rather than wisdom—a perspective that was actually emerging in the Renaissance, questioning the more idealistic view of law.69 Law is not in itself a transformative principle, but a pragmatic means of working through the essentially contingent human condition towards achievements that are necessarily provisional. It is for the individual to renounce and go beyond the legal devices to build on the possibilities made available to her by them. Over and above the obvious irony of the play's title, there is a sense in which it is felt to encapsulate the peculiar and hard-bought wisdom of the play. All one can begin with, in a sense, is this 'end'. This is not a romance, like Pericles or The Winter's Tale, where the children have been born and the regeneration has visibly begun. Helena's pregnancy, among its other expressive functions, suggests the play's projecting of fulfilments in the future. To take up the possibilities afforded by legal means is what the function of romance is posited as. Nor need the value of law necessarily lie in the discovery or assertion of certitudes; probability itself can be its gift to the human condition, and indeed a positive step towards knowledge. The king's words, as he accepts Helena's offer of her improbable 'Medical' services, capture a perspective which the play ultimately invites the audience to accommodate:
1 Though I use the Oxford Shakespeare, I retain the traditional name for the heroine. I should like to thank Ben Griffin for assistance with references.
2 Henry Swinburne, A Treatise of Spousals, or Matrimonial Contracts, ed. Randolph Trumbach (London, 1985) (hereafter, Spousals).
3 For influential examples of the critical opinion that Bertram's resistance is a legal escape route, see M. L. Ranald, 'The Betrothals of All's Well That Ends Well', Huntington Library Quarterly, 26 (1962-3), 179-92; p. 186, and Howard Cole, The All's Well' Story From Boccaccio to Shakespeare (Urbana, 1981) (hereafter, Cole), passim. Enforcement could be a ground for nullification, but only if it was raised by a party in court; Bertram's failure to do so at the relevant moment suggests the impracticality of this provision in a situation of authority and dependence. The one technically permissible objection a ward could raise—that against disparagement—is brought up by him but not sustained. On wardship, see Joel Hurstfield, The Queen's Wards: Wardship and Marriage under Elizabeth I (London, 1958).
4 See Madeleine Doran, Endeavors of Art: A Study of Form in Elizabethan Drama (Madison, 1954), pp. 251-2, and W. W. Lawrence, Shakespeare's Problem Comedies (New York, 1960), pp. 32-77.
5 Durham University Library, Palace Green, Mickleton and Spearman Manuscript 4, fol. 115-24. I am indebted to Sheila Doyle of the Durham University Law Library for drawing my attention to this manuscript volume.
6The Book of Common Prayer 1559: The Elizabethan Prayer Book, ed. by John E. Booty (Charlottesville, 1976), p. 297. Though, by this time, both the reformers and the bishops were clear that scripture did not provide sanction for the sacramental status of marriage, its desacramentalization remained largely a matter of theological definition in England. To prevent it from being divested of dignity and solemnity in popular perception—an effect that was distinctly possible, and would threaten exactly the regularization sought by the reformers—the service was made to stress that marriage was a 'Holy ordinance', and further, was coupled with the receiving of Holy Communion, at the same time as the sacramental language and claim were dropped. This was enough to preserve the sacramental sanctity of marriage for the common people, who did not pause to work out the technical distinctions of the reformers. See Eric Joseph Carlson, Marriage and the English Reformation (Oxford, 1994) (hereafter, Carlson), pp. 36-49.
7 On church courts, see Ralph Houlbrooke, Church Courts and the People during the English Reformation 1520-1570 (Oxford, 1979) (hereafter, Houlbrooke). For accounts focusing on marriage litigation, see Martin Ingram, Church Courts, Sex and Marriage in England 1570-1640 (Cambridge, 1987) (hereafter, Ingram); R. H. Helmholz, Marriage Litigation in Medieval England (Cambridge, 1974) (hereafter Helmholz); and Carlson, pp. 142-180.
8 See, for example, Helmholz, p. 27; Martin Ingram, 'Spousal Litigation in the English Ecclesiastical Courts, c. 1350-1640' in R. B. Outhwaite, ed., Marriage and Society: Studies in the Social History of Marriage (London, 1981) (hereafter, Ingram, 'Spousal'), pp. 35-57; pp. 37, 45; Spousals, p. 14.
9 See G. E. Howard, The History of Matrimonial Institutions chiefly in England and the United States (Chicago, 1904), 3 vols., vol. 1, p. 339. The interplay of attitudes to Claudio and Juliet's sexual involvement in Measure for Measure turns exactly on this duality. For an incisive exposition of this point, see A. D. Nuttall's 'Measure for Measure: The bed-trick' in Nuttall, The Stoic in Love (London, 1989), pp. 41-8.
10 See James A. Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago, 1987), pp. 551-74.
11 See Spousals, pp. 21, 36-41; Sir Edward Coke, The First Institute of the Lawes of England (London, 1628), section 104.
12 James Raine, Depositions and other Ecclesiastical Proceedings from the Courts of Durham, extending from 1311 to the Reign of Elizabeth (London, 1845) (hereafter, Raine), pp. 218-26.
13 See J. O. Halliwell, ed., The Autobiography and Correspondence of Sir Simonds D 'Ewes (London, 1845), vol. 1, pp. 87-9.
14 See James A. Coriden, The Indissolubility Added to Christian Marriage by Consummation: A Historical Study from the End of the Patristic Period to the Death of Pope Innocent HI (Rome, 1961), pp. 7-23.
15 J. T. Noonan, Power to Dissolve: Lawyers and Marriages in the Courts of the Roman Curia (Cambridge, Massachusetts, 1972), p. 80.
16 For Swinburne's reference to the marriage of Mary and Joseph as the authority behind the notion that 'carnali knowledge' is not essential for 'perfect matrimony', see Matrimony, p. 120.
17 Raine, pp. 322-6.
18 Furnivall, Child-Marriages, Divorces, and Ratifications, &c. In the Diocese of Chester, A.D. 1561-6 (London, 1897) (hereafter, Furnivall), p. 58.
19 See, for example, the 1623 case against John Cocke of Tillington and his wife, cited in P. Hair, ed., Before the Bawdy Court: Selections from church courts and other records relating to the correction of moral offences in England, Scotland and New England, 1300-1800 (London, 1972) (hereafter, Hair), p. 107, or the Yorkshire presentment cited in n. 21 below.
20 See E. D. Stone and B. Cozens-Hardy, eds., Norwich Consistory Court Depositions 1499-1512 and 1518-1530, Norfolk Record Society 10 (1938) (hereafter, Stone and Cozens-Hardy), no. 90.
21 See T. M. Fallow, 'Some Elizabethan Visitations of the Churches belonging to the Peculiar of the Dean of York', Yorkshire Archaeological Journal, 18 (1905), 197-232.
22 Furnivall, pp. 76-9.
23 See also Spousals, p. 225.
24 See Joseph Jacobs, ed., The Palace of Pleasure: Elizabethan Versions of Italian and French Novels From Boccaccio, Bandello, Cinthio, Straparola, Queen Margaret of Navarre, And Others, Done into English by William Painter (New York, 1966) (hereafter, Painter), 'The thirty-Eight Nouell'—Shakespeare's immediate source for the story of All's Well.
25 Baker, p. 360. See also pp. 361 and 375.
26 Ibid., p. 362.
27 See S. F. C. Milsom, Historical Foundations of the Common Law (London, 1983), pp. 88-90 and 289.
28 Ingram, 'Spousal', p. 52. On the reciprocal influence between common law, and canon law as practised in the church courts, see R. H. Helmholz, Canon Law and English Common Law, Seiden Society Lecture, 1982 (London, 1983), esp. pp. 15-19.
29 Baker, p. 360.
30 See p. 186 above.
31 Cp. Humphrey Winstanley v. Alice Worsley, a 1561 divorce suit from Chester, Furnivall, pp. 2-4.
32 See also Spousals, pp. 71, 101, 206-12.
33 On the various symbolisms of the ring, see Spousals pp. 207-9; A. H. Bullen, An English Garner: Some Shorter Elizabethan Poems (Westminster, 1903), p. 296, posy no. 15; J. E. Cirlot, A Dictionary of Symbols and Imagery, tr. J. Sage (London, 1971), p. 273; G. F. Kunz, Rings for the Finger (Philadelphia, 1917), pp. 193-248; Shirley Bury, An Introduction to Rings (London, 1948), pp. 15-17; Stith Thompson, Motif-Index of Folk Literature (Copenhagen, 1958), vol. 6, pp. 650-1.
34 See Houlbrooke, 58, esp. n. 14; Peter Rushton, 'The Testaments of Gifts: Marriage Tokens and Disputed Contracts in North-East England, 1560-1630', Folk Life 24 (1985-6), 25-31. See also Spousals, Sections XII-XV.
35 Norfolk and Norwich Record Office diocesan records (hereafter, NNRO), DN/DEP (deposition books of the consistory court) 9, bk. 8, 158v, 162-3v; DN/ACT (Act books) 9, bk 10.
36 Furnivall, pp. 65-6.
37 For attacks on the ring in Puritan writing, see Anthony Gilby, A Pleasaunte dialogue, Betweene a Souldier of Barwicke, and an English Chaplaine (Middleburg, 1581), M5r; Dudley Fenner, Certain Learned and Godly Treatises (Edinburgh, 1952), p. 96; Andrew Kingsmill, A View of Mans Estate (London, 1576), sig. K2r. Also, Donald McGinn, The Admonition Controversy (New Brunswick, 1949), pp. 218-19; Richard L. Greaves, Society and Religion in Elizabethan England (Minneapolis, 1981), pp. 184-5.
38The Sarum Missal, tr. A. H. Pearson (London, 1844), p. 552. See also 'The Form of Solemnization of Matrimony' as given in The Book of Common Prayer, pp. 290-3.
39 Canterbury Cathedral Archives (hereafter, CCA), x.10.20, 173-6.
40 Painter, p. 174.
41 Henry Consett, The Practice of the Spiritual or Ecclesiastical Courts (London, 1685), p. 76.
42 On the relation between the definition of a 'court' of law and the presence of the monarch, see J. H. Baker, The Legal Profession and the Common Law (London, 1986), pp. 153-69.
43 Raine, pp. 238-40. See also Furnivall, pp. 187-96 (Edmund v. Bird) and pp. 65-7 (Sothworth v. Sothworth); Raine, p. 243 (Grynwill v. Groundye).
44Rhetoric, 3.11.1, 3.11.4, and 3.10.6, in The Rhetoric and Poetics of Aristotle, tr. W. Rhys Roberts and Ingram Bywater, ed. Friedrich Solmsen (New York, 1954). The potential of the image for being an instrument of proof is a well established concept in Aristotle and emerges from a collateral reading of the De Anima and Nichomachean Ethics. On the provenance of this notion in Renaissance England, see Kathy Eden, Poetic and Legal Fictions in the Aristotelian Tradition (Princeton, 1986), pp. 69-111.
45 CCA, X.10.17, 152V. See also ibid., X.10.12, 182-V.
46 Furnivall, p. 57.
47 'Legal fiction' may be roughly defined as a lie perpetrated with official or institutional authorization, in the interest of the commonweal. On 'Legal fiction', see Ian Maclean, Meaning and Interpretation in the Renaissance: The Case of Law (Cambridge, 1992) (hereafter, Maclean), pp. 138-42.
48 On Swinburne's upholding of legal presumption in 'such a favourable matter' as marriage, see Spousals, pp. 88, 98, 103 and 149.
49 On the contemporary English stereotype of Italy, see Roger Ascham's interpolation at the end of the first part of his Scholemaster (c. 1570), quoted in Jacob's introduction to Painter, p. xix. See also Thomas Nashe, The Unfortunate Traveller in R. B. McKerrow, ed., The Works of Thomas Nashe (Oxford, 1958), vol. 11, pp. 301-2.
50 See Skinner and Russell Price, ed., Machiavelli: 'The Prince' (Cambridge, 1988) (hereafter, The Prince), Chap. XXVII for the discussion of Caesar Borgia's prudence and ability (prudentia and virtú) manifested by his alertness to occasione, i.e. his recognition of the right opportunity and his acting upon it. See also Chap. XXI. Also relevant to this discussion is Machiavelli's stress on flexibility and adaptability to a particular circumstance or fortuna with all its limitations—see The Prince. Chap. XXV, pp. 85-7. This recipe for success is exactly what Helena's compromises are based on. Its link with prudence in Machiavelli, as stated in Chap. XV, is also an element in Helena's personality.
51 See Cole, chap. II, esp. pp. 19-20, on the honour accorded to human effort, ability, and ingenuity in Boccaccio. See also Lorna Hutson, 'Fortunate Travelers: Reading for the Plot in Sixteenth-Century England', Representations, 41 (1993), 83-103, on the 'Transformative virtues' of prudence, enterprise and pursuit of occasion in Italian novellae and in Machiavelli, esp. pp. 88-90, 97, 99.
52 See W. Baildon, Les Reportes del Cases in Camera Stellata 1593-1609 (1849), pp. 39 and 161; Bedfordshire Record Office, L28/46. See also W. R. Prest, 'Law and Women's Rights in Early Modern England', The Seventeenth Century, 6 (1991), 169-87; 182.
53 Cp. the function of Juliet's 'plenteous womb' in Measure for Measure, which 'expresseth [Claudio's] full tilth and husbandry' to the public gaze (1.4.42-3).
54 See Ingram, pp. 219-23, esp. p. 219.
55 Ibid., 223-6.
56 Houlbrooke, p. 76.
57 See L. A. Montrose, '"Shaping Fantasies": Figurations of Gender and Power in Elizabethan Culture', Representations 1:2, Spring, 1983, 61-94 (72-3). For a historical study of the evolution of embryology, see J. Cole, Early Theories of Sexual Generation (Oxford, 1930).
58 Painter, vol. I, pp. 178-9.
59 See NNRO Dep. 4B, 30V; Dep. 5B, 173V; both cited in Houlbrooke, p. 77 (n. 74).
60 Ingram, 'Spousals', p. 47.
61 Ingram, p. 210.
62 Ibid., 210-11. See also G. R. Quaife, Wanton Wenches and Wayward Wives: Peasants and Illicit Sex in Early Seventeenth-Century England (London, 1979), pp. 218-20.
63 Salisbury Diocesan Records, deposition books preserved in the Wiltshire Record Office (hereafter, WRO), Dl/26, 136V-137V; 140r-141v.
64 See, for instance, J. T. Fowler, ed., Acts of Chapter of the Collegiate Church of St. Peter and Wilfred, Ripon, 1452-1506, Surtees Society 64, 1875, p. 31ff.
65 Ingram, p. 225. See, for example, Office v. Rowden, WRO (1612), AS/ABO 11; and Office v. Greene (1621), WRO, AW/ABO 5.
66 See W. Hale Hale, A series of precedents and proceedings in criminal causes extending from the year 1475 to 1640; extracted from act-books of ecclesiastical courts in the diocese of London (1847), p. 44; Stone and Cozens-Hardy, p. 90.
67All's Well, 1.3.90-1.
68 T. E. The lawes resolution of women 's rights; or, the lawes provision for women (London, 1632), p. 4.
69 On the jurisprudential debate on whether law was a science or an art, the conflicting visions of the status of law, and the argument for law emerging as an 'unphilosophical mixture of the necessary and the contingent in jurisprudence' that was 'In fact superior to that of philosophy', see Maclean, pp. 20-9. See also Donald Kelley, 'Vera Philosophia. The Philosophical Significance of Renaissance Jurisprudence', in History, Law and the Human Sciences: Medieval and Renaissance Perspectives (London, 1984), pp. 267-79. On the history of the idea of probability, see Ian Hacking, The Emergence of Probability: a Philosophical Study of Early Ideas about Probability, Introduction and Statistical Inference (Cambridge, 1975), and Douglas Lane Patey, Probability and Literary Form: Philosophic theory and literary practice in the Augustan age (Cambridge, 1984), esp. pp. 3-74.
More should I question thee, and more I must,
Though more to know could not be more to trust:
From whence thou cam'st, how tended on—but rest
Unquestioned welcome, and undoubted blessed.—
Like a promise, marriage, happy endings to stories and happiness itself, are all, in a sense, absolute and ignorant—like Pascal's wager with God, a leap of faith.
Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 5643
W. F. Bolton (essay date 1988)
SOURCE: "Ricardian Law Reports and Richard II," in Shakespeare Studies: An Annual Gathering of Research, Criticism, and Reviews, Vol. XX, 1988, pp. 53-65.
[In the following essay, Bolton considers the place of property law in Richard IL]
The events in Richard II took place in 1398 and 1399. Just about two centuries later, Shakespeare wrote his play. Two hundred years after that, Shakespeare's editor Edmund Malone surmised that Shakespeare had undergone legal training, for even Malone—a practicing lawyer—needed to "brush up his black-letter law," as he put it, to understand some of Shakespeare's allusions.1 Now, another two centuries along, we too can best understand some of the allusions in Richard II if we look at the old law books. They enable us to place the trial by combat in its correct context, to grasp some other legalisms scattered in the play, and to trace a central legal motif of plot and metaphor.
The black-letter law books included not only the legal documents of Shakespeare's own day, but also the sixteenth-century editions of medieval law reports, called Year Books.2 The Year Books report proceedings before the King's Bench and the Court of Common Pleas. The manuscript reports were kept from about 1278 until 1535, and published from about 1483. Among those who took an active part in the publication were humanistic publishers like de Worde, Pynson, and Rastell, but none was so active as Totell, he of the Songs and Sonnets, who brought out over 225 separate editions between 1553 and 1591. Even so, publication was uneven; the Year Books for the reign of Richard II are still not all published, and in Shakespeare's time they had appeared in print only in Fitzherbert's Abstracts (1514) and in Bellewe's notes from them (1585). Yet these medieval law books were of much interest to Renaissance readers: In 1614 Bacon wrote that "As these Reports are more or less perfect, so the Law itself is more or less certain, and indeed better or worse," and even late in the seventeenth century Serjeant Maynard always carried one in his coach, preferring the old reports to any comedy.3
In the pleading that the Year Books report, both sides engaged in spontaneous debate at the Bar, trying first this plea and then that, allowed or disallowed by the Court. A plea once formally made by counsel and accepted by the Court, however, was binding on the party that made it, so the Serjeants needed a report of what pleas had succeeded with which judges in similar cases. Of course they also needed a permanent record of the parties in the case and the outcome, so two sets of legal register came into being: the official Latin records (Plea Rolls) in unique exemplars, carefully preserving the details of judicial decisions, and the unofficial French reports (Year Books) in many copies, often containing verbatim accounts of courtroom exchanges.
In printed versions òr in the widely circulated manuscript copies, the medieval Year Books were known and available in late sixteenth-century London. Yet F. F. Heard, explaining Pistol's "obsque hoc" in 2 Henry IV, V.V.29, held that "in the absence of any explanation of this highly technical term of pleading in all reports and treatises extant in the time of Shakespeare . . . , he must have obtained a knowledge of it from actual practice," which Phillips cites without comment.4 A. R. Humphreys, in his Arden edition of the play (1966), says merely that the phrase may be a motto "or a legal tag." But the Year Books show that Heard's view is doubly mistaken, and Humphrey's guess is unnecessary. First, explanation of the plea absque hoc was indeed in "reports and treatises extant in the time of Shakespeare"; it appears throughout in the documents of 11-13 Richard II, as such in the records and as sauns ceo in the reports, where the meaning and use of the plea are often discussed between Bar and Bench (e.g., 11/55, 11/241) and where Shakespeare could easily have learned about it. Second, Pistol's phrase concludes nihil est. The reports show that the legalism does not include those words, so Pistol's phrase is probably not related to the "highly technical" plea after all, but—as Humphreys surmised—to a motto or proverb.5
Of the Latin records, the Plea Rolls, the editor of 11 Richard II emphasizes the distinctive inviolability:
In general, the records were made up with the utmost care. . . . Anything found to have been wrongly recorded was erased and rewritten, and omissions when discovered were supplied by interlineation. . . . nce the record was enrolled, its contents could not be added to or amended. . . . Serjeant Hill asked for, and, as the record shows, obtained, the entry of a point on the strength of which he claimed judgment for his client. . . . And since the record once made was inviolable, it could be appealed to at a later stage of the proceedings and would be produced and read. In the famous fifteenth-century pictures of the law courts which hang in the Library of the Inner Temple, the clerks are shown holding membranes which . . . appear to be those of the rolls . . . ; possibly they were brought into court in case any demand should be made for oyer of the record.
An "oyer" is the hearing of a document in court when one party refers to it and the other party "craves oyer" of it. Since the Year Books report the actual court pleadings, they include frequent references to oyer of the record (e.g., 11/78, 11/192), but I do not know of any record that refers to a report.
When Richard uses the legal verb "object" (OED s.v. 5[a]) to ask "Cousin of Herford, what dost though object / Against the Duke of Norfolk" (I.i.28-29), Bolingbroke in his reply calls on heaven to "be the record to my speech" (I.i.30), making a metaphor of the legal record; like Serjeant Hill, he wants his plea entered in an inviolable heavenly "Plea Roll" so that it can be read in a subsequent oyer, whether heavenly or not. In much the same way, Richard later asks Northumberland
If thy offences were upon record,
Would it not shame thee, in so fair a troop,
To read a lecture of them? If thou wouldst,
There shouldst thou find one heinous article,
Containing the deposing of a king,
And cracking the strong warrant of an oath,
Mark'd with a blot, damn'd in the book of heaven.
Ure's note glosses "read a lecture" as "give a public 'Reading'" and compares Bolingbroke's words to Mowbray's asseveration "if ever I were traitor, / My name be blotted from the book of life . . ." (I.iii.201-02). But "the book of life" is not "the book of heaven," and the relevant comparison is with Bolingbroke's appeal to heaven in Act I, not Mowbray's. For Richard too is making a metaphor of an oyer of the heavenly legal record.
Richard II abounds in such legal procedures, concepts, and vocabulary, from the question of succession to the throne down to Bolingbroke's image of his exile as an "apprenticehood" under the Statute of Labourers (I.iii.271-74); perhaps, next to The Merchant of Venice, it is Shakespeare's most "legal" play. But whereas the Merchant is concerned with contract law, a matter on which legislation did not begin to appear until the early fifteenth century, Richard II makes central use of property law as it stood in the late fourteenth century. In that way the play takes many of its dominant concerns and language from the past.
Diane Bornstein has argued to the contrary in these pages, holding that "the trial by combat scene in Act I of Richard II relates to a contemporary [i.e., Elizabethan] controversy on duels and honor . . ."6 So, although she refers to one fourteenth-century work as a source for the controversy, the Arbre des batailles by Honoré Bonet or Bouvet, she takes most of her references from writings by Shakespeare's contemporaries, not Richard's. In this her interpretation resembles that of Jack Benoit Gohn, who regards the play as a legal brief on royal prerogative composed in response to the problem of succession that developed under Elizabeth I.7 But it is one thing to say that the play takes history as its subject, as Richard II clearly does; it is another to say with Bornstein and Gohn that it uses history to comment on a contemporary issue. By connecting the legal episodes in the play with Elizabethan controversies, moreover, both Bornstein and Gohn overlook its legal metaphors such as Bolingbroke's and Richard's appeals to the celestial "record."
Implicitly criticizing interpretations like Bornstein's and Gohn's, the silk and Shakespearean Owen Hood Phillips has written (pp. 135-36) of
a "conflict of laws in time and place" involved in the study of Shakespeare's law. If we want to consider whether Shakespeare's use of legal expressions in the plays is "correct" . . . we must ask what legal system (if any) is appropriate. This will depend on the place and the period in which the action is supposed to be laid. Many legal writers have fallen down on this, by assuming that the law . . . ought to be what English law was in Shakespeare's time.
Clarkson and Warren had long before given an example: in the trial of Falconbridge v. Falconbridge before King John, the Bastard's retort "Of no more force to disposses me, sir, / Than was his will to get me" (I.i. 132-33) is not in Shakespeare's source, but "correctly states the position of the law of England as it stood at the period portrayed, even though it was no longer the law at the time when he wrote his play," the pivotal legislation being the first Statute of Wills in 1540.8 In accordance with Phillips's approach, the pre-1540 law, however Shakespeare came to know of it, is the only one that makes proper sense of the lines, because it was the 1540 law that made possible direct disposal of land, or disinheritance of an heir, by a written will.
If we use the late medieval law reports to apply Phillips's approach to the trial by combat in Richard II, we can correct some modern views of the trial scenes so prominent in the play. Peter Ure, for example, in his Arden edition, repeatedly turns to Dante's De monarchia for evidence about trial by combat, not a very relevant source for Shakespeare, and so he can assert that "trials by combat were . . . only proceeded with for want of other evidence to settle the case and not simply on the grounds given here . . . , the rejection of reconciliation by both appellant and defendant" (pp. 15-16, n. 199). One lengthy case in 1330 directly contradicts Ure's point, for it resulted precisely from the failure of appellant and defendant to reach reconciliation.9 It even contradicts barrister-bardolator Phillips's own contention that "trial [by combat] was . . . almost obsolete by the end of the thirteenth-century". (p. 165). And it hints at no connection between trial by combat and what Bornstein calls Richard's "presumptuous, unjust, unpatriotic, and un-English" attitude for allowing such a trial (p. 139).10
From a Ricardian standpoint, the trial by combat was a matter of fourteenth-century law, not of any sixteenth-century "cult of honor," so that—for example—Bornstein is mistaken to regard Bolingbroke's insistence that the quarreling lords wait "Till we assign you to your days of trial" (IV.i.106) as couched in "legalistic language [that] suggests that he is talking about trials in court rather than trials by combat" (p. 140). Such language also occurred in the 1330 trial by combat:
Then Scrope [C. J.] inquired of the parties whether they knew any reason why the court ought not to award trial by battle. They said that they knew none. Therefore Scrope told the parties to find pledges for the performance of the battle. . . . [Scrope]: You are adjourned to Monday, 5 March. . . . He then commanded the champions not to approach one another in the meantime, in any place.
As the presence of the Marshal and the Heralds indicates, the trial in Richard II is in the Court of Chivalry. The 1330 trial was in the Court of Common Pleas at a Northamptonshire Eyre, and at the combat Chief Justice Geoffrey le Scrope and his fellow justices performed most of the duties of the Marshal and the Heralds along with those of presiding judge.11 Even so, the 1330 trial echoes the trial language in Richard II in phrases such as "deny it by the body"; the repetitions of legal formulas, "rehearsing the entire count without omitting a single word"; the presentation of the disputants' gloves to the presiding judge; the adjournment until the day appointed for battle; the charge to the champions to identify themselves and swear the justice of their cause; and the inspection and return of the champions' weapons.
In one detail, however, the report seems quite the opposite of the play, which has Richard preventing the combat even though the disputants could not be reconciled. In the 1330 case, by contrast, though the disputants did negotiate a settlement at the last moment, Scrope insisted
you have put the king's court to great labour. The court will therefore have its pleasure. The champions shall have at one another with shields and staves without the crooks and shall strike the blows for the king against one another and shall then fight.
But the detail from 1330 is not the contrast it seems with the trial of 1398,-for it shows that as presiding judge Scrope, like Richard, had absolute power over the trial and the champions.
When in the accusation scene Bolingbroke tells Mowbray, "Pale trembling coward, there I throw my gage, / Disclaiming here the kindred of the king, / And lay aside my high blood's royalty" (I.i.69-71), he is accepting Mowbray's challenge (I.i.58-59), as Ure notes, by "waiving the fact of [his] kinship to the king (and the privileges attached to it)." But, the reports make clear, such a verbal disclaimer was not necessarily valid. In a case of 1389, a deed of feoffment was made to four men, three of whom took possession in the absence of the fourth: "the fourth came to them . . . and had view of the deed and said by parol that he did not want to have any of the said land nor to agree to the feoffment, but dissented from it . . ." (13/3). Later the court found that "it is beyond question that the issue in tail will not be disinherited by this verbal dissent" (13/5), and in his introduction to the volume, the editor comments on this case and continues, "On the point of disclaimer in a court of record, we find nothing until 1591 when Coke . . . cited our case from Fitzhebert's version" (13/lix).12 Bolingbroke's offer to disclaim his "high blood's royalty" would affect not only his title but more importantly his issue and most importantly his "oath and band" (I.i.2), that is his sworn obligation of loyalty to Richard. So, though the 1389 case was about a disclaimer of deed, not of title, it casts some doubt on the legal efficacy of Bolingbroke's offer, or his sincerity, or both.
The example of divestment by parol points to the place the law of property occupies in Richard II In his complaint in Act II, Bolingbroke says,
I am denied to sue my livery here,
And yet my letters patents give me leave.
My father's goods are all distrain'd and sold,
And these, and all, are all amiss employ'd.
This speech introduces a set of related legalisms that tie together literal and figurative terms elsewhere. Documents like the Ricardian law reports serve to illustrate just how the legalisms are related.
Even before Bolingbroke's complaint, York has asked Richard,
Seek you to seize and gripe into your hands
The royalties and rights of banish'd Herford?
If you do wrongfully seize Herford's rights,
Call in the letters patents that he hath
By his attorneys-general to sue
His livery, and deny his off red homage,
You pluck a thousand dangers on your head. . . .
Clarkson and Warren quote Holdsworth passim to support their interpretation that
"On the death of the tenant in chief [such as John of Gaunt], he [the king] was always and under all circumstances entitled to first seisin". . . . The king took the fruits and profits of the land until the heir appeared, did homage and paid his relief, after which he might sue his livery, i.e. . . . "sue the tenements out of the king's hand . . . and get seisin."
The legal language sounds oppressive here, as it would be if every word had its "lay" meaning; but "seisin" is "possession," "to sue" means merely "to petition for," and "livery" is simply the act of delivering possession.13 So Richard was well within the law to take the land, and even the "royalties and rights" from it, though the legalism "seize into his hands" does not make it sound that way. It was in refusing to accept Bolingbroke's homage and to permit him to sue his livery so as to regain seisin that Richard was lawless.
The law reports contain cases in point. One says:
after the death of the tenant, the land and the manor were seised into the hand of the king, which manor the husband of full age and his wife within age sued out of the hands of the king, and had livery; . . . and . . . the husband . . . prayed livery out of the hand of the king of these tenements.
Another passage shows that the process normally followed not only the death of the tenant but also his attainder: "if the husband commit felony for which he is attainted, all the land shall be seized into the King's hand, as well [held by the felon] in right of his wife as his own land . . . , and the wife shall sue to the King to have livery . . ." (11/271).
In Act IV of Richard II, Aumerle makes a figurative reference to "mine honour soil'd / With the attainder of his slanderous lips" (IV.i.23-24), where Ure's note explains that "attainder" means "accusation." It does not; it is instead the final legal consequence of accusation, as Mowbray implies in Act I when he swears "to defend my loyalty and truth / To God, my king, and my succeeding issue . . . " (I.iii.19-20). So the quarto reading has it, though the folio has "and his succeeding issue," which some editors have followed. But as Samuel Johnson observed of these lines, "Mowbray's issue was, by this accusation, in danger of an attainder, and therefore he might come among other reasons for their sake" (quoted by Ure 23, n. 20).
Legal attainder was the extinction of civil rights and capacities that followed the sentencing of a traitor or other felon. His estate was forfeited and he could pass nothing by inheritance. In the Ricardian law reports, attainder always follows outlawry, as it would not if attainder were merely "accusation."14 Attainder also resulted in the felon's exclusion from suing livery for the seisin of his inherited tenements. Finally, as White notes, in a trial by combat, "if the accused was vanquished or killed . . . his blood was thereafter attainted, so that his heirs were cut off from inheriting from him, and all his posterity was made base and ignoble."15 That is the literal fate that Mowbray as defendant seeks to avoid on behalf of his "succeeding issue," and it is the law on which Aumerle's figure of speech rests.
So far, these passages have associated "sue livery" with a further set of terms: "seisin," "tenements," and "attainder." While either death or attainder could result in the ordinary legal process called seisin, the extraordinary seizure of real or other property is called "distraint"—Bolingbroke says his father's lands are "distrained." The Ricardian law reports have
J. and K. his wife granted, by a certain deed that is here, that if the said barley [rent] be in arrears, it should be lawful for him [from whom they held the land] to distrain on all other lands and tenements of which they were seised at the time of the making of this deed.
(11/15; cf. 11/21)
Again the reports link our term, here "distrain," with "seise" and "tenement."
Early in the play, Richard makes his own complaint against Bolingbroke, using a legal figure of speech: Bolingbroke, he says, behaves "As were our England in reversion his, / And he our subjects' next degree in hope" (I.iv.35-36). It is a figure Richard's queen picks up in Act II: " 'Tis in reversion that I do possess . . . " (II.ii.38). As White points out (p. 234),
The estate left after the termination of a life estate or an estate for years in a given tract of land, is reversion, and the estate arises by operation of law and not by deed or will. . . .
The reversioner has the next right to the land, after the tenant of the term is through with the land. . . .16
Here an estate is not literally property but the relation that an owner or tenant bears toward the property. Figuratively, however, both "reversion" passages have connections that the Ricardian law reports best clarify. One serjeant argues, for example, "if a tenant for life lease to the reversioner he shall have a writ of waste against him" (13/53). It is this connection between the reversion of an estate and a tenant's waste on it that surfaces in Richard II.
In Act II, John of Gaunt complains to Richard that "The waste is no whit lesser than thy land" (II.i.103). "Waste," according to White, "is any damage or act which injures the inheritance of real estate done by a tenant for life or years, to the prejudice of the reversioner or heir" (pp. 234-35). So when Bolingbroke says that his father's goods "and all, are all amiss employ'd," or that Richard has "Dispark'd my parks and fell'd my forest woods" (III.i.23), he is bringing an accusation of literal, legal waste; his father, on the other hand, used the term figuratively.17
"Waste" by a tenant is not squandering property or letting it become ruinous, but more usually taking, selling, or alienating a landlord's commodities: "A writ of waste was brought against the tenant for a term of life . . . to wit one hundred oaks cut down and sold . . . two hundred beeches cut down and sold . . . and two villeins exiled by his wicked and tortious distress" (12/173). Because wood was especially valuable and vulnerable to waste by the tenant, it often appears in writs of waste, as it does in Bolingbroke's accusation that Richard has "fell'd my forest woods." One report has a particularly full account:
A writ of waste was brought by an infant under age against T. FitzHugh as guardian . . . and the plaintiff affirmed the waste in a garden [and] in a wood in the felling and cutting down of certain ashtrees and oaks.
Markham, for the guardian, said that a certain J. C, the plaintiffs ancestor, was seised of those same tenements wherein the waste is alleged, and of other tenements in his demesne as of fee. And he had issue of two daughters, to wit, the plaintiff who is under age and another who is of full age, and [he] died. . . . And after his death the two daughters entered, and the defendant took possession of [seisist] the wardship of the one under age on the ground that the tenements were held of him. . . . Afterwards the two daughters made purparty between them, so that the garden and wood . . . were allotted to the purparty of the one under age. . . . And because there were growing in the garden better and more valuable trees than in the purparty of her who is of full age, an agreement was made upon the purparty between them that she who is under age should cut down the same trees. . . .
(11/258-59; cf. 11/1, 12/30, 12/173)
The trees involved might, that is, grow in a garden, not only in a wood or on open land.
John of Gaunt's accusation also holds that England under Richard has become "Like to a tenement or pelting farm" (II.i.60). Gohn thinks "tenement" in this passage is "rented rooms" (p. 957, n. 79), but Phillips's "time and place" doctrine rejects the meaning new in Shakespeare's time in favor of White's definition "A tenement in the law of real property, is anything of a permanent nature, which may be holden, as a house or a homestead" (p. 236), which is the meaning the Ricardian law reports quoted up to now reflect. Richard, though he is in reality lord paramount, has abused the country as though it were land "holden" and he were its wasteful tenant.
By relating tenancy to reversion and to waste, such remarks in the reports complete a picture in which the complaints of York and Bolingbroke, that-Richard has prevented the latter from "suing his livery," prove to be the node of a set of references on which "distrain" (with "seize," as in "royalties and rights"), and by implication "waste," along with "attainder," "reversion," and "tenements," all converge. They are, the Ricardian reports bear witness, all members of a set of legalisms drawn from the late fourteenth-century law of property, though the play distributes the members among the acts and characters of the play, using them both literally and figuratively. For although Shakespeare took some individual details of Ricardian legal history from Holinshed, the underlying legal system that enabled him to form this set of literal and figurative terms derives from other sources, such as the medieval law reports, as Shakespeare's imagination seized on them and molded them. Holinshed provided the literal basis for Bolingbroke and York's complaints, but not for the set of literary and figurative vocabulary based on them.
In the middle of the play, the gardener in York's oddly metaphorical garden observes that "Bolingbroke / Hath seiz'd the wasteful king" and further that if Richard had kept his "garden" properly, "himself had borne the crown, / Which waste of idle hours hath quite thrown down" (III.iv.54-55, 65-66). As a sequel to the figurative legalisms we have been viewing from the standpoint of the medieval reports, this reversal of action makes good sense: Richard is wasting his tenement, so Bolingbroke seizes him. A garden, the reports also show, is a pertinent venue for a commentary on waste. But the play is little more than half over, and the gardener's commentary, though it marks a turning point in the legal imagery, does not mark its climax. That comes near the end of Act V, when Richard says,
. . . how sour sweet music is
When time is broke and no proportion kept!
So is it in the music of men's lives.
And here have I the daintiness of ear
To check time broke in a disordered string;
But for the concord of my state and time,
Had not an ear to hear my true time broke:
I wasted time, and now doth time waste me. . . .
The dominant image here, obviously, is music and musical time. But the chiastic wordplay of the last line. "I wasted time, and now doth time waste me," recalls also the figurative legalisms of the play, for Richard has committed waste as "a tenant for life or years, to the prejudice of the reversioner or heir," to quote again White's commentary.18 A writ of waste, however, can lie only against a tenant, and Richard as lord paramount is the one person in the kingdom who cannot be a tenant, so no literal writ of waste can lie against him. But figuratively he has wasted time, of which he was indeed "a tenant for life or years," since life and years are time's tenements; and now time is "wasting," or suing for waste, its injurious tenant. And so in Richard's last long speech Shakespeare brings together the strands, explicit and implicit, of Ricardian property law in the play, though Richard can probably not see them. That we can see them now we may credit to those black-letter law books that help us, with Malone, to understand some of Shakespeare's allusions, and which, with old Serjeant Maynard, we may yet prefer to any comedy.
This paper was given in a shorter version at the section on "Shakespeare and the Middle Ages" of the Twenty-first International Congress on Medieval Studies, Kalamazoo, Michigan, May 1986.
1 O. Hood Phillips, Shakespeare and the Lawyers (London: Methuen, 1972), pp. 176-77. Phillips offers excellent additional bibliography and a fascinating account of the study of Shakespeare by lawyers. See now also Edna Zwick Boris, Shakespeare's English Kings, the People, and the Law (Rutherford: Fairleigh Dickinson Univ. Press, 1978).
2 My article addresses only those matters of law in Richard II related to the Year Books; it should be read in conjunction with Donna B. Hamilton, "The State of Law in Richard II" Shakespeare Quarterly, 34 (1983), 5-17, who addresses other matters of law. For the Year Books, see William Craddock Bolland, A Manual of Year Book Studies (Cambridge: Cambridge Univ. Press, 1925), and The Year Books (Cambridge: Cambridge Univ. Press, 1921); Jacques Lambert, Les Year Books de langue française (Paris: Sirey, 1928); H. G. Richardson, "Year Books and Plea Rolls as Sources of Historical Information," Transactions of the Royal Historical Society, 4th ser., 5 (1922), 28-70; and Albert C. Baugh, "Chaucer's Serjeant of the Law and the Year Books," Mélanges de langue et de littérature du moyen âge et de la renaissance offerts à Jean Frappier (Geneva: Droz, 1979), 1. 65-76, which includes references to earlier studies of Year Books in general. Except for the 1330 case (for which see note 9 below), my Year Book quotations and translations are from Year Books of Richard II: 11 Richard II, 1387-1388, ed. Isobel B. Thornley (London: Spottiswoode, Ballantyne, 1937); . . . 12 Richard II, A.D. 1388-1389, ed. George F. Deiser (Cambridge, Mass.: Harvard Univ. Press, 1914); and . . . 13 Richard II, 1389-1390, ed. Theodore F. T. Plucknett (London: Spottiswoode, Ballantyne, 1929), cited as 11, 12, and 13, respectively (page numbers in these editions designate both the original French or Latin on the verso and the editor's translation on the facing recto). My quotations from Richard II follow the Arden edition by Peter Ure, 5th ed. (London: Methuen, 1961).
3 Cited in Bolland, Manual, pp. 3, 4.
4 F. F. Heard, Shakespeare as a Lawyer (Boston: Little, Brown, 1883), p. 48, cited in Phillips, pp. 181-82.
5 Humphreys thinks that Pistol's following phrase, "tis all in every part," is "apparently meant as a rough rendering of the quoted Latin tags." But obsque hoc nihil est is more probably either itself a translation of Falstaff's previous phrase "as if there were nothing else to be done," with its repetition of his "thinking of nothing else" (V.v.25-27), or—more probably still—Pistol's version of one of the 250 or so absque hoc proverbs, most of them containing a following negative, listed by Hans Walther, Proverbia sententiaeque latinitatis medii ac recentioris aevi, ed. Paul Gerhard Schmidt (Göttingen: Vandenhoeck & Ruprecht, 1982), 1. 32-47. The proverbs include for example no. 34372x3, Absque Deo durabile nil est, which may be similar to the model for Pistol's version.
6 Diane Bornstein, "Trial by Combat and Official Irresponsibility in Richard II" Shakespeare Studies, 8 (1976), 131.
7 Jack Benoit Gohn, "Richard II: Shakespeare's Legal Brief on the Royal Prerogative and the Succession to the Throne," Georgetown Law Journal, 70 (1982), 943-73.
8 Paul S. Clarkson and Clyde T. Warren, The Law of Property in Shakespeare and the Elizabethan Drama (Baltimore: Johns Hopkins Univ. Press, 1942), p. 215.
9 Bolland, Manual, quotes this case from "an unprinted Year Book in Lincoln's Inn (p. 96), but it had in fact been printed by William Dugdale, Origines Juridiciales, 2nd ed. (1671), pp. 68-71. It has since been edited from several manuscripts by Donald W. Sutherland, The Eyre of Northamptonshire 1329-1330 (Seiden Society 98, 1983 for 1982), pp. 546-61.
10 Mowbray's son certainly does not see the connection in 2H4, IV.i. 115-26.
11 See G. Squibb, The High Court of Chivalry (Oxford: Clarendon, 1959), with excellent bibliography, to which add J. Derocquigny, "Note sur Shakespeare, Richard II, acte I, scène III," Revue Anglo-Américaine, 1 (1923-24) 430-31, which finds Shakespeare guilty of "solécismes" in several details of the trial by combat, including the performance by the Marshal of some roles properly those of the Constable, who does not appear in the play. But such telescoping of roles may not reflect Shakespeare's "nonchalance" and "ignorance," as Derocquigny would have it, so much as the influence of trials by combat like the one in 1330 and of roles like Scrope's in it. (Scrope was, by coincidence, the grandfather of the Sir Stephen Scroope who is a minor character in R2, III.ii and III.iii. See further Humphreys's note on 1H4, IV.iv.3 [Arden ed., London: Methuen, 1960].)
12Richard II was written between 1595 and 1597, shortly after Coke made this citation. For Shakespeare's special interest in Coke, see George W. Keeton, Shakespeare 's Legal and Political Background (London: Pittman, 1968), pp. 43-66.
13 For "tenements," see below. The legalism "livery" also occurs in 1H4, IV.iii.62, referring to its use in Richard II, but elsewhere Shakespeare employs the word in the lay sense "garb." Ure's note on II.i.190 follows the OED and received opinion in defining "royalties" as "rights granted to a subject by the king," but Clarkson and Warren's "fruits and profits of the land" appears to give the word* its present-day meaning, though it is one the OED does not know before the nineteenth century.
14 E.g., 11/268-69, 11/279. The legalism is rare in Shakespeare, appearing elsewhere only in LLL, I.i.156, and R3, III.v.32. "Attaint," "attainded," and "attainture" are, however, more common.
15 Edward J. White, Commentaries on the Law in Shakespeare, 2nd ed. (St. Louis: F. H. Thomas, 1913), p. 230.
16 Another Shakespearean rarity, "reversion," occurs elsewhere only in 1H4, IV.i.53, and Tro, III.ii.92. Even as some legal scholars like White have explained the "reversion" passages in Richard II by reference to the law, others have explained the law by reference to the passages (Phillips 121).
17 For reasons noted below, Bolingbroke could bring only an accusation, not a writ, of waste against Richard.
18 It recalls too Gaunt's reference to. his own "time-bewasted night" (I.iii.220) and Richard's belief that "time hath set a blot on my pride" (III.ii.81).
Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 19912
Janet M. Green (essay date 1995)
SOURCE: "Earthly Doom and Heavenly Thunder: Judgement in King Lear," in University of Dayton Review, Vol. 23, No. 2, Spring, 1995, pp. 63-71.
[In the following essay, Green discusses the workings of legal and divine judgment in King Lear.]
In King Lear (1605-1606) Shakespeare refers to the law and to judgment, both secular and divine, again and again, heightening the pressure and force of the tragic outcome. The repeated legal situations, rather than offering hope of a fair judicial decision or a merciful reprieve, intensify and mirror the characters' experiences of heavenly wrath, human cruelty, and hopeless pain.
It is illuminating to recapitulate as much as possible the ways in which Shakespeare's audience might have perceived these situations, concentrating on what Shakespeare might reasonably have expected the ordinary playgoer to know and understand. Almost certainly this ordinary playgoer had not read all the contemporary materials which modern critics have perused—nor, one suspects, had Shakespeare—yet we can posit a certain community of knowledge of some legal situations and terms that occur and re-occur in Lear. These can be grouped under two kinds of judgment: secular doom and divine thunder—Jacobean law courts and the Christian Last Judgment.1
Shakespeare's choice of legal situations demonstrates that the play's most powerful single dimension for spectators is "the nature and significance of human society" (Mack, King Lear in Our Time), for people's relations and responsibilities are set forth clearly in the law. Kiernan Ryan, while acknowledging that it is obvious Shakespeare's plays "have their historical basis in the social reality of his age," reminds us that more important is "ascertaining how that reality is perceived by the play, and how we are induced to perceive the play's representation of that reality" (26-27).
One of the realities is the highly litigious nature of Shakespeare's time. Going to law was common and frequent, as Shakespeare, and his father too, themselves demonstrated. An elaborate system of secular courts and legal entities with wide purposes and powers rendered judgments, not only to protect life and property, but to preserve the ranked structure of society and to encourage uniformity (Williams 217; Powell and Cook 41). Punishments were brutal, the range of felonies was wide, it was easy to bring prosecutions, and malicious litigation was widespread (Williams 248, 252).
Shakespeare's audience, like Lear himself, would condemn many things in such a legal system. Local justice was mostly in the hands of the much-criticized Justices of the Peace, who had both great responsibilities and great powers to enforce the law, which they did not always use with integrity. Sometimes, they might advocate clemency (as Lear does in the mock trial scene of 3.6 where he acts as a justice). Trial juries were known to be capricious, the attitude towards evidence often arbitrary, corruption and bribery prevalent, and haste could mar all procedure (Williams 231). A person could be—and often was—convicted one day and executed the next. Even the condemned ones making their farewells from the scaffold might be bidden by officials to make haste. The speed of resolutions in tragic drama resulting in the rapid heaping up of corpses which often seems artificial to us would not, perhaps, seem as contrived to Jacobeans.
Even more disliked than the secular courts, officials, and processes, were their ecclesiastical counterparts, which handled most matters of morality. Their autocratic approach and financial exactions "were resented and even hated by laymen" (Powell and Cook 86).
There was much to resent, fear and hate in both of these Jacobean legal systems, yet surely Shakespeare's audiences must have found the many highly dramatic renderings of judgment as fascinating as we do. The news-loving, lively Jacobeans were intensely interested in secular and religious trials, judgments and punishments, especially those with bizarre or gruesome details, or those involving the sad—perhaps satisfying—fall of great ones. John Foxe's Book of Martyrs still helped to feed the insatiable human appetite for gore, holy or otherwise. Accounts of trials were often printed for sale. Judgments (and their more interesting punishments) were enacted in the theatre. Public executions were common, often preceded by the condemned person's agreement with the judgment that had brought him (or her) to that dismal place. Secular judgment was a powerful reality to Shakespeare's audiences.
We see this consciousness in other works of Shakespeare, for example, Measure for Measure, Much Ado About Nothing, and The Merchant of Venice. It is most intensely mirrored and repeated in King Lear. In this tragedy, as in Jacobean life, legal terms and situations abound. In fact, they form an important framework for the action, from Lear's willful disposition of his kingdom in the first scene—that "trial of love"—until the end (Mack, Everybody's Shakespeare 162). When Lear summons his three daughters, it is to testify in a courtroom atmosphere. In 2 this scene, the royal judge metes out rewards and punishments like an overblown, arbitrary, powerful Jacobean magistrate, a character which would have been familiar to the audience. They would also have been aware of how contemporary laws of inheritance were violated by both Lear and Gloucester, and of how greed was threatening family ties (Kenneth Muir, The Great Tragedies 26). Many also would know the sensational story of Sir Brian Annesley. In 1603 when his eldest daughter and her husband sought to get him declared mad so they could gain his estate, Cordell, his youngest daughter, appealed to Sir Robert Cecil on his behalf.3
Other matters relating to law occur throughout Lear, almost too many to recount. For example, successful flight to avoid prosecution was then common (Williams 232) and, in 4.6 we see Lear running off to be pursued on the health by Cordelia's people. Some allusions to legal matters in the drama are almost glancing, like Goneril's arrogant pronouncement to her disgusted husband Albany that "the laws are mine, not thine" (5.3.158-59).
However, it is fitting that the most powerful, sustained, and effective images of judgment should center on the doomed king. The legal situations progress from the ceremonial disposition scene which opens the play, in which King Lear has all the power, and none of the understanding, to the mock trial scene (3.6) in which mad Lear has no real power but much better understanding. In this scene, he sets up his "courtroom" with Edgar (as poor Tom), the Fool, Kent and himself as justices. Cued by the Fool, Lear opens the proceedings:
Fool: He's mad that trusts in the tameness
of a wolf, a horse's health, a boy's love, or
a whore's oath.
Lear: It shall be done; I will arraign them straight
So he does, arraigning Goneril, represented by a joint stool, on charges that she kicked him. "Let us deal justly," the Fool remarks (41).
This exhibition of the demented King presiding over a mad, surrealistic legal system must have pleased the original audiences, many of whom we can safely assume had had direct experiences with secular or ecclesiastical law and, very probably, not happy ones. Though the King in the play is insane, the arbitrariness and inconsistency of his legal pronouncements ring true. The apparent reversion to some kind of order in this scene—the structure of a law trial—is really a reversion to chaos and insanity, a point the audience could well appreciate. The mirror image effect not only increases the impression of Lear's weakening capacities, but reveals the marred nature and impaired truth of society itself. By all his incisive and telling words, Lear describes not only problems which the characters in the play face but problems in Jacobean life where legal judgment, like the fates of the drama's characters, could be arbitrary, inconsistent, brutally swift or hideously slow, crooked, unjust. The play's setting disguises the contemporary references somewhat, and the privilege of madness has allowed Lear, like Hamlet, to criticize the corrupt Jacobean social system without incurring punishment from the drama's other characters—or stimulating punishment of the playwright by authorities.
As the play goes on, the images of judgment become even more serious. As Lear goes increasingly mad, he becomes increasingly cogent as a social critic. Shakespeare skillfully enables us to recognize both states but trust the latter more. Lear, wandering about, "continues to discourse in a seemingly disjointed manner but with penetrating acumen on injustice (4.6). Like George Eliot's famous pierglass image in Middlemarch (182), his egoism begins to organize random memories and experiences into a pattern of awareness, as a candle held close organizes the meaningless scratches on a metal pierglass into concentric circles. When Lear characterizes a barking dog who makes a beggar run away as the "great image of Authority: / A dog's obey'd in office" (4.6.160-61), we think of his own misused authority, as evidently he does also.
His scope widens to include other wrongs besides his own, but he characterizes the officer of the law (the punisher) as the real sinner, once again a reflection of his own crucial fault in disposing of his kingdom. The "rascal beadle," though he lusts for the whore, nevertheless lashes her back. The usurer, a magistrate guilty of lending money at usurious rates, hangs the cozener, only a petty cheater (Muir 180n; 4.6.162-65). Money protects the sinful from discovery and prosecution, and rich clothes disarm justice:
Plate sin with gold,
And the strong lance of justice hurtless breaks;
Arm it in rags, a pigmy's straw does pierce it
The audience must have realized, as Maynard Mack points out, "that it was listening to an indictment far more relevant to its own social experience than to any this king of ancient Britain could be imagined to have had." Lear, a king of the realm like their own King James, had "registered for all to hear the bankruptcy of the very body politic (and body moral) of which he was representative and head. . . . Even the most casual playgoer, who had looked about him reflectively in Jacobean England, must have experienced a shudder of self-recognition as Lear's 'sermon' proceeded" (107-08).
After indicting hypocrisy, Lear imitates an impossibly ideal magistrate, or perhaps the hoped-for merciful Christ at the Last Judgment, when he says, "None does offend, none, I say, none; I'Ll able 'em ("vouch for them"; 170). (He seems to revert to his old arrogance, however, when he adds the sinister reminder that he has "the power / To seal th' accuser's lips" (171-72)). But he has reversed the procedure usual in any court of judgment—in fact, destroyed its basis—by pardoning an offense before he knows what it is. Human mercy can do no more, nor can divine.4
Once Lear is reunited with Cordelia, the madman's judging ceases. The action quickens. The King, now restored to his wits but weak, and his adored Cordelia must suffer Edmund's unjust and extreme judgment upon them. Before this comes to pass, Lear, reunited with his darling, has one last happy moment. His eloquent address to her, "Come, let's away to prison," (5.3.8-19) may sound fanciful to us—and has had, like almost every passage in Lear, myriad interpretations—but the audience might have found it not a piece of deluded, senile, or symbolic imagination, but an anachronistic reflection of possibility. The legal system often granted surprising leniency to prisoners in Shakespeare's time, even to "traitors," if of high rank. Lear does not live to enjoy the kind of imprisonment with Cordelia he describes, but it was not unreasonable for a king to expect it.
Shakespeare's use of such frequent allusions to secular judgment and to the legal systems must have deepened the playgoer's understanding of the tragedy and widened its meaning to include not only awareness of pagan Britain but of Jacobean England. And perhaps of life itself, for earthly judgments prefigured and mirrored in part God's final one.
Now we find in Lear more allusions to the judgment of the law than to Christianity's Last Judgment, even though religion was more pervasive in Jacobean daily life, but these Doomsday references reverberate powerfully, like the sounds of approaching thunder. They are fewer, of course, partly because Lear has a pagan setting, but also, it is likely, because overt references to religion could be dangerous. Prudent writers did not allude to religious matters except with great circumspection. The situation in Shakespeare's time resembled somewhat the circumstances surrounding the composition of most apocalyptic literature. Because it was often seditious and contemporary references dangerous, it was cryptic—as is Shakespeare's resolution of Lear. The consequences of offending the authorities could be severe. We cannot assume that Shakespeare stood aloof from the state religion of his time, for had he not conformed, S. Schoenbaum convincingly argues, he would have been noticed by authorities who were already hostile to the theatre on religious grounds (59-60).
The concept of the Last Judgment was one of the important ideas of Shakespeare's time (Weittrich 91). Queen Elizabeth had movingly referred to it in her Golden Speech in 1601.5 King James, fascinated by theology, was obsessed with the Book of Revelation and his meditations on it were published in 1588 and 1603. Revelation pertained to the last age and would be fulfilled "in very short space," he wrote. Inspired by the King's concern, his subjects studied the subject enthusiastically (Weittrich 29-31). Besides the common verbal allusions to the Last Judgment were the common visual representations, like the paintings in churches (Lascelles 59-60). It seems reasonable to assume that the concept of the Last Judgment was as familiar to the ordinary playgoer as the creation of the world or the life of Jesus.
In church, sermons were preached on the Last Judgment, arid in the liturgy Jacobeans heard and uttered references to it again and again. Church attendance was not optional, and the order of service, the creeds, and Scriptural readings were fixed. The use of and worship according to the Book of Common Prayer was enforced by statute, "and offenders were punishable by law," as described in "An Act for Uniformity of Common Prayer" (BCP 6-13; 372). The vision of judgment in all its scarifying power was set before Shakespeare's contemporaries frequently in the Scriptural selections appointed to be read in particular Morning and Evening Prayer services and in the less frequent Holy Communion service (such as Matthew 13:47-50 and 25; and Luke 21).6
Judgment appears also in the Apostles' Creed used in Morning Prayer (and said in comnion by the whole congregation), and the Nicene Creed: "And He shall come again to judge both the quick and the dead." The Athanasian Creed which was said in common at the end of Evening Prayer on selected high feast days describes the Last Judgment in more detail: ". . . he shall come to judge the quick and the dead. / At whose coming all men shall rise again with their bodies: and they shall give account for their own works. / And they that have done good, shall go into life everlasting: and they that have done evil, into everlasting fire. / This is the catholic faith: which except a man believe faithfully, he cannot be saved" (64-67). The Apostles' Creed was used in Baptism (273) and several other services, and references to the Last Judgment appear in many places, even in the marriage ceremony: "I require and charge you (as you will answer at the dreadful day of judgment, when the secrets of all hearts shall be disclosed) . . ." (291). And of course the concept appears frequently in the Order for the Burial of the Dead, along with hope of mercy (309-13).
Many briefer, but still relentless, reminders of the same cataclysmic final day were contained in other portions of the church services. Two of the most important seasons of the church year, Advent and Lent, emphasized the individual's preparation for the fulfillment of God's ordinances.
There are not only reflections in King Lear of the general assumption that everyone knew about the Last Judgment, but there are echoes in it of the Book of Common Prayer. One service even reads like program notes for the villains in Lear. In the colorful and dramatic Office of Commination Against Sinners . . ."To Be Used Divers Times in the year," drawn chiefly from Deut. 27, the minister leads the congregation in denouncing various kinds of sinners (BCP 316-23). These kinds could describe characters in Lear:
Cursed is he:
"that curseth his father" (a description fitting Edmund);
"that lieth with his neighbor's wife" (Edmund);
"that smiteth his neighbor secretly" (Edmund, Goneril the poisoner);
"that taketh reward to slay the soul of
innocent blood"; (the Captain-hangman, Oswald)
"that maketh the blind to go out of his way" (Cornwall, Regan).
"Cursed are the unmerciful" fits Edmund,
Goneril, Regan, Cornwall, Cornwall's
servants, and Oswald. Gloucester and Lear,
also, begin without the quality of mercy but
advance towards it.
In this service of Commination, after the minister exhorts the congregation to return to God, "remembering the dreadful judgment hanging over our heads, and being always at hand," he reads a bloodcurdling description of that final day of wrath and vengeance, which it might have done even Edmund some good to hear.
It is well to remember in this discussion, though, that the Christian God is not possessed entirely by flaming judgmental wrath. It is also His property to have mercy. Mercy like the mercy Lear showed in the mock trial scene (3.6) when he forgave the sin before he knew the crime.7 It was certain God accepted the repentance of the dying. So Shakespeare's audience might well have felt a sense of completion, of satisfaction, of justice, when even the villainous Edmund acknowledges a power greater than his own. Dying, he says, "I pant for life; some good I mean to do / Despite of mine own nature" (5.3.243-44).
The belief that God judges people on earth but also finally and dramatically—and not without mercy—in the life to come is so enshrined in the key protestations of Christian faith and Scripture that it must have affected the way in which Shakespeare's audience beheld their lives and his plays. What Joseph Weittrich terms "the apocalyptic myth" appears in other works, for example, Anthony and Cleopatra and Macbeth (6; Lascelles 56), and the comic murderers jest about Doomsday with perfect familiarity in Richard III (1.4.101ff). But it is in Lear that the concept is used most powerfully. The resemblances of Lear's world to the world of Shakespeare's audiences were obvious. They would see more easily what modern critics so often quote, Keats's "fierce dispute betwixt damnation and impassioned clay" (380, lines 5-6). David Kranz writes that Shakespeare and his audience, "being Christian, would clearly see the pagan tragedy and the hidden Christian insights more easily than we do," though the insights are perhaps not so hidden as that statement implies (140). Even in a play with an undoubtedly pagan setting, says Bruce Young, "Shakespeare draws freely on the Christian idea of the Apocalypse, the era of tribulation and judgment that will accompany the end of this fallen world" (103).
Shakespeare knew the Geneva Bible, which with the Book of Common Prayer and the Homilies "profoundly nourished his imagination," concludes S. Schoenbaum (57). René Fortin goes further: "an ear attuned to Scripture would discern in Lear's ordeal resonances of the Book of Revelation" (119). In Lear Shakespeare is particularly obsessed with the Doomsday idea (Weittrich 9-10). He seems to have before him, not the brief, flat statements of the Apostles' and Nicene Creeds, but the more terrifying vision of the Athanasian Creed (BCP 67):
At whose coming all men shall rise again with their bodies: and shall give account for their own works.
And they that have done good, shall go into life everlasting: and they that have done evil, into everlasting fire [the second death].
Apocalyptic events (as just described, and in Revelation and Daniel) take place, like the major events of King Lear, in a certain kind of time. Ordinary measured time ("chronos") is replaced by a period of massive change and danger, in which the sense of time is concentrated, quickened, and heightened because of the dramatic and important events that happen within it. This "chairos" (related to our term "crisis") brings change, good or bad, but always it brings anxiety and fear. In Lear we experience as the play progresses a growing sense of urgency, change, danger, and fear in which time is indeed heightened and rushes with unusual speed and force to the final destruction.
The effect is achieved not only by plot events but by the general atmosphere and by specific references. The quality of apocalyptic finality has occurred throughout the play—in trumpets, in thunders, in tempest. The hideous din of wind and rain on the heath seems to be at war "as if it were indeed Armageddon. . . . And everywhere "run tides of doomsday passion that seem to use up and wear away people, codes, expectations, all stable points of reference, till only a profound sense remains that an epoch, in fact a whole dispensation, has forever closed" (Mack, King Lear 85-86). In Keats's "vale of soul-making," the characters must make final choices, and in noise, chaos, madness, flight and battle their fates come upon them swiftly. "The wheel is come full circle," Edmund says. "I am here" (5.3.174).
Reference to another wheel has already brought to mind specific last things—Hell and punishment following Judgment. Lear seems to refer to a medieval torment in Purgatory (which the Protestants had abolished) when he wakes from his madness to behold above him the face of Cordelia:
Thou art a soul in bliss; but I am bound
Upon a wheel of fire, that mine own tears
Do scald like molten lead
Though the Established Church had rejected the doctrine of Purgatory, it could still linger in the minds of the audience and in the poetry of the playwright. Cordelia has bent above her suffering father in one pietà; now at the end he bends above her in another (Barber 119).
The most obvious specific indication of the Last Judgment occurs at the end of the drama after Lear has expired over Cordelia's body. Commentators still dispute whether the ending is "Christian" or not, whether Lear is redeemed by his suffering or dies uselessly, and they variously interpret Lear's last words, "Look on her, look, her lips, / Look there, look there!" (5.3.310-11). Some say Lear actually thinks Cordelia revives, and his heart, like Gloucester's, bursts in joy, not anguish. Even if he dies in this happy belief, we know he is horribly mistaken and our pity is not diminished. Perhaps it is even increased. The reversal of the happier ending in the old Lear story could itself be authorized by the implications of Apocalypse (Weittrich 12). But whatever the interpretation, the deliberately evoked resonances of Doomsday, our sense of "chairos," magnify the sorrow of the scene. The audience's understanding of apocalyptic possibilities makes the deaths of Lear and his Cordelia more believable, more horrible.
The comments of the three remaining "good" characters seem to refer to a Christian Last Judgment:
Kent: Is this the promised end?
Edgar: Or image of that horror?
Albany: Fall and cease
Albany's enigmatic imperatives have been interpreted as "let heavens fall and all things cease" (Bevington 132n).
However, the above lines could also refer to the end of time ("eschaton"), which encompasses cataclysmic events like warning signs and disasters, the destruction of the world, the Last Judgment, and the final defeat of evil and death. Thus the possibility that Lear and Cordelia's tragic fate may be a sign that this end of time is near (is beginning?) makes Edgar ask, "Or image of that horror?"8
The final reference in the tragedy to a legal system returns to secular law. The meaning of Lear's suffering deepens into almost unbearable intensity when Kent uses the word "rack" as a figure for his sufferings. When Edgar tries to revive the dead King with "Look up, my Lord," Kent protests (as we do):
Vex not his ghost: O! let him pass; he hates him
That would upon the rack of this tough world
Stretch him out longer
The infamous rack connoted pain and suffering which must be endured, sometimes relieved only by death. It was known that the state used routine unwarranted, sometimes enthusiastic torture to get information, to ensure the veracity of the victim as a later witness whether yet brought to trial or not, to serve on occasion "to the example of others" (Williams 393). It was used to punish and to gain a confession—sometimes in that order.
Who would disagree with Kent's passionate plea, "O! let him pass"? The rack of Lear's sufferings has done too much to him. His mind has been dislocated as the rack might have maimed his body. In fact, in Caroline Spurgeon's famous words, through verbs and metaphors the drama's references to violence and bodily agony have finally created the image "of a human body in anguished movement, tugged, wrenched, beaten, pierced, stung, scourged, dislocated, flayed, gashed, scalded, tortured and finally broken on the rack" (339). Lear's pain has, it is true, yielded him greater compassion for his fellow beings and greater understanding of himself. He had long ago confessed his chief error—"I did her wrong," he had said flatly about Cordelia (1.5.24). But the price of gaining such knowledge has been too high. There can be no recompense. Kent says, "If Fortune brag of two she loV'd and hated, / One of them we behold" (5.3.280-81). Lear's increased sensitivity does show in his courteous dying request, "Pray you, undo this button: thank you, Sir" (5.3.309). Still it cannot redeem his suffering which had made him like a condemned soul to roam the earth in mad anguish. At the end, he is like a corpse tied to the gibbet for warning. True, Kent, Albany, and Edgar remain alive at the end of the play, but their virtue is pale and insufficient comfort for the sorrow and evil the audience has seen, the judgments—just and unjust—that have been implied and given.9
The unspoken connotative meanings of these judgments must have increased the powerful impression of the drama. As the audience left Shakespeare's theatre, their impression of the entire tragedy must have been undergirded by their knowledge, perhaps fear, of secular law, and as they dispersed, the thunder of the Last Judgment must have resonated in their minds.
1 In this paper, acts, scenes, and line numbers refer to The Arden Shakespeare edited by Kenneth Muir, Methuen, 1963. The terms "Last Judgment," "Day of Judgment," and "Doomsday" (Old English "doom" meant "judgment") were in Shakespeare's time more or less synonymous and referred to a time when all people, the living and the dead, would be judged by God, after the world is destroyed and before a New Kingdom is created.
2 René Girard in A Theatre of Envy says what Cordelia rejects in this scene is "mimetic rivalry" with her sisters (182). This is an interesting point, since rivalry so often precedes violence. Rivalry is also the essence of litigation.
3 Annesley died not long after Cordell's appeal, and the eldest daughter contested his will. Mack, King Lear In Our Time (45-47) and Muir in his edition of King Lear (xliii) summarize the details.
4 A frequent New Testament idea is that sin and law reinforce each other, as in "for by the law is the knowledge of sin" (Rom. 3:20); "the strength of sin is the law" (1 Cor. 15:56); and "sin is not imputed when there is no law" (Rom. 5:13).
5 To members of Parliament Elizabeth said: "I have ever used to set the Last-Judgment Day before mine eyes, and so to rule as I shall be judged to answer before a higher Judge, to whose judgment seat I do appeal, that never thought was cherished in my heart that tended not unto my people's good" (Neale 390).
6 The 1559 edition of the Book of Common Prayer (hereafter BCP) was in constant use until 1604, when minor changes only were made. Further changes were not made until 1661-1662 (Booty, "History of the 1559 Book of Common Prayer" in BCP 329).
Some of the appointed Scriptural readings which included descriptions of the Last Judgment were: Acts 17:31; 2 Peter 3:9-13; 2 Cor. 5:10; 1 Cor. 4:4-5; 2 Thess. 1:7-10; and Jude 1:6—8 ("Proper Lessons To Be Read" and "An Almanac for Thirty Years." BCP 27-47).
7 Cordelia, like Edgar, embodies Christian constancy; she gives especially eloquent voice to the doctrine of mercy when she hears how her deadly sisters had locked their doors against their father in the apocalyptic storm: "Mine enemy's dog, / Though he had bit me, should have stood that night / Against my fire" (4.7.36-38). The shining thread of mercy is interwoven in Lear with the harsh poetic justice described in these famous lines: "The Gods are just, and of our pleasant vices / Make instruments to plague us" (5.3.170-71).
8 Yet another reading of these much discussed lines concludes that the three characters may refer to death itself. Kent laments the death of good people like Lear and Cordelia in such terrible circumstances ("Is this the promis'd end?"). Edgar adds that the horrible scene they behold is the first of many deaths ("Or image of that horror?"). Albany's remark reinforces that despair; once you die, there is nothing more ("Fall and cease"). For this interpretation I am indebted to Pastor Elizabeth Eaton and Father Conrad Selnick of Ashtabula. Ohio.
9 Eaton and Selnick have conjectured that several apparently Christian references in the last scene may not be chance occurrences; Shakespeare may have deliberately chosen them to soften the bleakness of the final events. (A pre-Christian setting did not require exact theology.) Edmund repents, providing the audience with a sense of resolution. Albany promises punishment and reward like the Christian God of the Last Judgment, thus providing a sense of justice and completion.
Some vocabulary has rich Christian connotations. Referring to the dead Goneril and Regan, Albany says, "This judgment of the heavens, that makes us tremble, / Touches us not with pity" (5.3.231-32). Lear says that if Cordelia lives, "It is a chance which does redeem all sorrows / That ever I have felt" (266-67). And Kent speaks of his imminent death as a journey he must undertake: "My master calls me" (322. Above italics mine).
Barber, C. L. "On Christianity and the Family: Tragedy of the Sacred." Twentieth Century Interpretations of King Lear: A Collection of Critical Essays. Ed. Janet Adelman. Englewood, NJ: Prentice-Hall, 1978. 117-19.
The Book of Common Prayer, 1559: The Elizabethan Prayer Book. Ed. John E. Booty. Folger Documents of Tudor and Stuart Civilization 22. Washington: Folger Shakespeare Library, 1976.
Eliot, George. Middlemarch. 1871-72. Ed. Bert G. Hornback. New York: Norton, 1977.
Fortin, René. "Hermeneutical Circularity and Christian Interpretations of 'King Lear,' " Shakespeare Studies: An Annual Gathering of Research, Criticism and Reviews 12 (1979): 113-25.
Girard, René. A Theater of Envy: William Shakespeare. New York: Oxford UP, 1991.
Keats, John. "On Sitting Down to Read King Lear Once Again" (sonnet). Poetical Works. Ed. H. W. Garrod. London: Oxford UP, 1969.
Krantz, David L. "Is This the Promis'd End?': Teaching the Play's Conclusion." Approaches to Teaching World Literature 12 (King Lear). Ed. Robert H. Ray. 1986. New York: MLA, 1992. 136-141.
Lascelles, Mary. "King Lear and Doomsday." Aspects of King Lear: Articles Reprinted from Shakespeare Survey. Eds. Kenneth Muir and Stanley Wells. Cambridge: Cambridge UP, 1982. 55-65.
Mack, Maynard. Everybody's Shakespeare: Reflections Chiefly on the Tragedies. Lincoln, NE: UP of Nebraska, 1993. Chapter 8 ("We Came Crying Hither: King Lear") uses material published earlier in his King Lear in Our Time.)
——. King Lear In Our Time. Berkeley: UP of California, 1965.
Muir, Kenneth. The Great Tragedies. 1961. London: Longmans Green, 1963. 25-32.
Neale, John E. Elizabeth I and Her Parliaments: 1584-1601. 1958. New York: Norton, 1966.
Powell, Ken and Chris Cook. English Historical Facts: 1485-1603. London: Macmillan, 1977.
Ryan, Kiernan. Shakespeare. Atlantic Highlands, NJ: Humanities P Intl., 1989.
Schoenbaum, S. William Shakespeare: A Compact Documentary Life. New York: Oxford UP, 1977.
Shakespeare, William. King Lear. Ed. David Bevington et al. 1980. New York: Bantam, 1988.
——. King Lear. Ed. Kenneth Muir. The Arden Shakespeare. London: Methuen, 1963.
Spurgeon, Caroline F. E. Shakespeare 's Imagery and What It Tells Us. 1935. Cambridge: Cambridge UP, 1966.
Weittrich, Joseph. "Image of that Horror": History, Prophecy, and Apocalypse in King Lear. San Marino, CA: Huntington Library, 1984.
Williams, Penry. The Tudor Regime. 1979. Oxford: Clarendon P, 1983.
Young, Bruce W. "Shakespearean Tragedy in a Renaissance Context: King Lear and Hooker's Of the Laws of Ecclesiastical Polity." Approaches to Teaching World Literature 12 (King Lear). Ed. Robert H. Ray. 1986. New York: MLA, 1992. 98-104.
R. S. White (essay date 1996)
SOURCE: "Shakespeare's The History of King Lear," in Natural Law in English Renaissance Literature, Cambridge University Press, 1996, pp. 185-215.
[In the following excerpt, White interprets King Lear as Shakespeare 's most powerful demonstration of the struggle between Natural and worldly law.]
In [many of] the plays by Shakespeare . . . a running debate is sustained between the rival claims of Natural Law and positive law in effecting 'poetic justice'.1 So insistent is this debate that it is virtually a Shakespearian signature, and in King Lear we find no exception. In this play, moreover, Shakespeare sets in opposition particularly naked forms of the two legal systems, searches more profoundly the nature of their differences, and reveals in the ending an unsettling ambivalence which is a source of tragedy for the protagonists. The play is one of struggle and dialectic, dramatising, amongst other polarities, an archetypal clash between Natural Law and positive law, trust and mistrust in human beings, Aquinas' idealism about people and the scepticism of Calvin and Hobbes. That the struggle is inconclusive, as it is in Love's Labour's Lost and Measure for Measure does not diminish the play's power, and gives evidence of Shakespeare's preference for incomplete closure, leaving the audience scope for exercising judgment.
In one sense, as many critics have observed, King Lear gives us a very simple view of good and evil. In the terms of Natural Law, good is humanitarian, communitarian, and is driven by compassion, reason, and conscience. This rough generalisation applies not only to Kent, Cordelia, Albany, the King of France, and Edgar, but also to a host of 'Little people', and it is a lesson eventually learned and acknowledged by the old men, Lear and Gloucester, through the recognition of their own violations of these principles. Evil is represented as an equation between power and positive law, without reference to conscience or any 'Higher' morality, and it is fundamentally individualistic, corrupt, and self-seeking: a rerun of Angelo, and a forecast of Hobbes. Cornwall, Gonoril, Regan, and Edmund stand on this darker side of the division. Both Cordelia and Kent promise exemplary poetic justice along the lines of Natural Law, enabling us to admire and follow virtue, murmur at vice:
CORDELIA Time shall unfold what pleated cunning hides.
Who covers faults, at last shame them derides.
And so it does. But so it does not, at the same time, for although evil is unmasked, good cannot be said to triumph.
Where the play becomes problematical is in the failure of Natural Law to prevail in any but a moral sense. Cordelia, the agent most closely equated with Aquinas' maxim that one should follow reason and conscience, lies dead at the end. So, for that matter, do those who conspicuously and unrepentantly (unless we exempt Edmund's final 'good' deed done 'Despite of [his] own nature') violate Natural Law, but somehow the morally satisfying appropriateness of their demise pales into insignificance beside the failure of Natural Law to prevail. The deaths of Cornwall, Gonoril and Regan, and Edmund, have 'poetic justice', but the death of Cordelia makes victory to the virtuous less than Pyrrhic. Meanwhile, even the natural world is deeply ambivalent, at times presented as the pitiless storm which assaults the fragile human community, at others aligned with the healing herbs that gently bring new life and nurture the human world. At the heart of King Lear lies a dialectic that underpins More's Utopia. Natural Law, based on the dictates of reason and conscience, is entirely vindicated and upheld in a moral sense, but its worldly failure raises disturbing questions about whether those who wield power in the state will ever allow it to be enacted in the world as it is.
The most significant, recent development in the study of King Lear is a reassessment of the relationship between the two printed versions. This appears at first sight to be of interest only to textual scholars, but the ramifications are very important for all branches of Lear criticism. The editors of The Oxford Shakespeare Complete Works, Stanley Wells and Gary Taylor,2 succinctly state the basis of the 'Revision theory', as a prelude to printing not one but two texts, The History of King Lear and The Tragedy of King Lear:
King Lear first appeared in print in a quarto of 1608. A substantially different text appeared in the 1623 Folio. Until now, editors, assuming that each of these early texts imperfectly represented a single play, have conflated them. But research conducted mainly during the 1970s and 1980s confirms an earlier view that the 1608 quarto represents the play as Shakespeare originally wrote it, and the 1623 Folio as he substantially revised it.
Some of the evidence for this view, together with consideration of the implications for criticism and stage history, are collected in essays in The Division of the Kingdoms: Shakespeare's Two Versions of 'King Lear',3 where the date of revision is proposed as 1608, contemporary with the writing of Cymbeline, whereas the Quarto was evidently written in 1605, and performed in 1606. Another, even more persuasive view put by Christopher Wortham, is that the Folio represents the play as Shakespeare originally wrote it (in line with the editors' stated principles), and the Quarto is as he substantially revised it for performance before the king, as the title-page announces.4
The differences between the texts for the purposes of the present book can be summarised in this way. Both Quarto and Folio texts constitute plays with significant Natural Law content, and this subject can be seen as an identifiable and central 'Theme' of each. But there is an important difference in that where the Quarto presents explicitly issues of Natural Law, the Folio does so largely implicitly, so that in reading the latter we can either presuppose supportive knowledge acquired from the former, or presuppose a more hard-working reader or audience. Whichever tack we take, many of the episodes and characters who appear in the Quarto carrying the Natural Law refrain do not even appear in the Folio, and yet the action in the Folio still invites a Natural Law interpretation. This study is primarily based on the Quarto—what the Oxford editors call The History of King Lear—quoting many passages which simply do not appear in the Folio, and accordingly I supply references from the Quarto's Scenes (Acts are not used).
Trials and justice
There are many trials and quasi-trials in King Lear, and these reveal different forms in which justice and law are defined and executed in the play. In the tumultuous middle of the play, two scenes (in conflated texts, Act III, Scenes 6 and 7; Scenes 13 and 14 in the Oxford text of the History), are starkly juxtaposed on the issue of law itself, both scenes are set indoors, but in very different rooms—13 (III. 6) in the hovel standing against the wind and the rain on the open heath, 14 (III. 7) in Gloucester's castle. The one is a fantasy while the other is grimly 'Real', but both in different senses parody the machinery of justice. In the former, Lear in his madness orchestrates an imagined, even hallucinatory trial of Gonoril and Regan. Fictional and fantastic as the situation is played out only in Lear's fevered consciousness, Lear follows strict legal procedure, anachronistically since he imports Elizabethan practice into Celtic England. He declares 'I will arraign them straight' (13. 16, III. 6. 20). Arraign means 'To call a prisoner to the bar of the court by name, to read to him the substance of the indictment, and to ask him whether he pleads guilty or not guilty'.5 He nominates Edgar, impersonating Poor Tom, as the judge: 'Come, sit thou here, most learned justicer' (line 17). 'Thou robed man of justice, take thy place' (line 32). The Fool represents primarily the Elizabethan system of equity and secondarily the driving spirit of simple fairness behind law in general: 'And thou, his yoke-fellow of equity, Bench by his side.' That a fool should represent fairness is a comment on the explosive first scene which precipitated the action of the play. The presence of Lear, still thinking of himself as king, establishes that the court of equity, the king's court, is one presiding jurisdiction, while the 'Robed man of justice' evokes a common-law setting. It was only under unusual circumstances that common law and equity sat down together in a 'commission', as, for example, in the trial of Mary Queen of Scots which continued to be controversial many years later, as we have seen in Spenser's case. Kent, disguised as servant to Lear, is also declared 'O'The commission' (line 39). Edgar intones 'Let us deal justly' before breaking off into apparent irrelevance. Addressing a joint-stool, Lear states the charge: 'Arraign her first. 'Tis Gonoril. I here take my oath before this honourable assembly she kicked the poor King her father' (lines 41-2). This is the formal indictment, basically a charge of cruelty and a metaphor for the ill-treatment Lear believes he has received from his daughters, which in his obsessive mind appears to be treasonous. There is no time to read the charge against the other defendant, presumably Regan, since she 'escapes' much to Lear's annoyance: 'False justicer, why hast thou let her scape?' (line 51). Both Kent and Edgar, for a moment moved by their feelings of pity for the mad king, step out of their 'counterfeitings', dismayed by Lear's state.
Lear now asks a very central question, and it is one that, in some form or another, the play keeps returning to: 'Then let them anatomize Regan, see what breeds about her heart. Is there any cause in nature that makes this hardness?' (lines 75-6). In the Folio the last phrase is 'These hard-hearts' which is perhaps more useful for our analysis of Natural Law content.6 Anatomy was a favoured study in the early seventeenth century regarded as if it could reveal nature's secrets about human beings, and even generating its own literary form, the 'Anatomy'. Are the 'Hard-hearts' in the play, Gonoril and Regan, Cornwall and Edmund, obeying some law of their own natures, or even nature in general, or are they violating their links with humanity in general? The unnervingly fundamental question radiates out into others. Are there any equally 'natural' impulses for good? Is a person's nature actively opposed to Natural Law (as an extreme Calvinist might argue), or can evil, indeed, be a product of nature at all? Are the hard-hearts after the Fall closed to reason and conscience, or are they wilfully denying the innate impulses 'natural' to people, and thus betraying their own place in nature? In the event, the 'Trial' does not proceed, although, as a legal writer argues,7 the scene achieves a double effect of providing 'A mocking of the forms of normal human justice' and also a cathartic process for Lear of dealing formal justice, after which he can sleep. But the question about human nature's capacity for knowing and obeying Natural Law remains, and it is one that the whole play interrogates.
Just as the play as a whole oscillates between hope and despair, good and evil, the scene in a quieter way unfolds another image of action which is of something equally basic, the exercise of compassion and fellow-feeling, for Edgar, Kent, and the Fool (by his continued presence, if not by his words) exhibit loyalty, sympathy, and the desire to protect Lear. It is one of many answers offered to the overriding question: in this case human beings are capable of knowing and implementing Natural Law, and 'Hard' hearts are therefore not natural. It is a vision of community huddling in mutual protection against the elements. Gloucester adds one to the company when he enters and, having heard of an assassination plot, arranges for Lear, by now sleeping, to be conveyed to Dover to meet the French army with Cordelia. Edgar ends the scene by extolling the values of community and support to one who suffers. The mind, he says, can avoid much sufferance 'When grief hath mates, and bearing fellowship' (line 105), reflecting a favouring of community values over individualism. It appears that the machinery of poetic justice, the proof of Natural Law within the play's universe, is being wheeled onto the stage in preparation for the ending.
An immediate and brutal challenge to this expectation comes after the 'Mad' cameo of justice. The following scene, III. 7 (line 14), may show a trial, and even some perverse version of fellowship among mates, but these are of a very different order, a dark parody of the hovel, where human nature itself is seen as 'Hard'. Cornwall, Gonoril, and Regan have arrived at Gloucester's castle, full of fury that he has intervened to allow Lear to escape. Cornwall, who has now emerged as the decisive ruler and has taken prime authority upon himself, sends Edmund away, since the interrogation and punishment of Gloucester, he says, is not fit for the 'beholding' of a son's eyes, a somewhat uncharacteristic gesture towards the law of filial kind, in the light of these characters' treatment of Lear. He instructs Edmund to accompany Gonoril, so she also is absent from the rest of the scene. Cornwall and Regan, a married couple surpassing even the Macbeths in ruthlessness, now conduct an interrogation and 'Arraignment' of Gloucester which is just as fanciful as Lear's, but far more nightmarish, in that these two as monarchs wield full, legal authority to carry out their sadistic and vindictive wishes. Cornwall is quite precise on this point, saying that although they must observe some due procedure of law, yet, even if the form is questioned, opponents will be silenced by their naked power:
Though we may not pass upon his life
Without the form of justice, yet our power
Shall do a curtsy [courtesy?] to our wrath, which men
May blame but not control.
Here is one for whom Natural Law either does not exist, or cannot be known by mankind, or simply does not matter. 'The form of justice', positive laws made by worldly authorities, are the only ones that operate. This is legal positivism with a vengeance. Cornwall and Regan bind Gloucester, and, against his repeated appeals to the same conventions of hospitality that haunted Macbeth before the murder of Duncan ('You are my guests', 'I am your host'), proceed to charge him formally with treason and interrogate him about letters he has received from France and about why he has arranged to convey Lear to Dover. Gloucester is as stubborn as Cordelia and Kent had been formerly, in refusing to compromise conscience simply because authority demands—another competing sign of human comprehension of Natural Law—and Cornwall and Regan proceed to their 'punishment', the horrifying act of blinding Gloucester. The narrow legalism of the procedure may accord with Cornwall's 'Form of justice', but its sickening inhumanity is thrown into sudden relief by the impetuous act of Cornwall's servant, who relinquishes one duty of 'service' in favour of a duty of conscience:
Hold your hand, my lord!
I have served you ever since I was a child;
But better service have I never done you
Than now to bid you hold.
In his 'Anger' (line 77), a further sign that moral virtue is based on instinctive knowledge and impulsive acts, he wounds Cornwall, mortally as it transpires, only to be stabbed in the back by Regan and later thrown upon the dunghill. His dying words beg Gloucester to witness the murder with his remaining eye, which provokes Cornwall to remove Gloucester's other eye. In extremity Gloucester calls upon his absent son to 'enkindle all the sparks of nature To quite [requite] this horrid act' (lines 84-5), but, as Regan gloatingly points out, his son Edmund in hatred had been the informant against his father. Immediately Gloucester in remorse realises 'Then Edgar was abused' (line 89), and prays for his own 'Forgiveness' and his son's 'protection'. In this sense alone, the 'Trial' has succeeded in repeating Lear's anguished question about 'nature', providing contrary and equally poised answers. The scene of legally sanctioned cruelty is ended with discussion between two more servants, like a jury passing a judgment which must by now be shared by the audience in either version of King Lear, even though the Folio does not have the words:
SECOND SERVANT I'Ll never care what wickedness I do
If this man [Cornwall] come to good.
THIRD SERVANT If she [Regan] live long.
And in the end meet the old cause of death,
Women will all turn monsters.
THIRD SERVANT Go thou. I'Ll fetch some flax and whites of eggs
To apply to his bleeding face. Now heaven help him!
In these two scenes, the one painful for its pathos and the other for its cruelty, we see enacted several 'Formal' trials and judgments: the first imaginary and inconclusive, ending with a question rather than a sentence, the second relentlessly moving through to sentence and punishment, a third the Servant's judgment on his master, a fourth the adjudication by Gloucester between his two sons, a fifth the commonsense judgment passed by the two Servants on Cornwall and Regan, and so on, reaching out to the audience's judgment about what has happened. Neither of the former sequences is any less 'Mad' than the other in a play which questions the boundaries between imagined and real in, for example and in particular, the 'Dover Cliff scene. The point is that law and authority, their officers alienated to roles, can themselves act with insane cruelty, but that human beings acting impulsively and from their own 'natures' can be kind and virtuous, ineffectual in the immediate situation but, if the Servant's case is taken into account, finally effective, since the Servant does kill Cornwall. To the question 'Is there any cause in nature that makes these hard-hearts?' we are directed, at least provisionally, to answer 'no' by witnessing the overwhelming evidence of other 'natural' and spontaneous responses to evil, such as anger, indignation, horror, self-sacrifice, fellowship, protection, and simple kindness. As in Aristotle's conception of justice, the audience's assessment may be based on the emotional grounds of pathos, but it carries weight.
One possible argument is that the 'cause' of evil lies not in nature or the human heart, but potentially in 'Office' or institutional authority. Not nature, but vested power, creates these hard hearts. Like Angelo, once a person acquires power, he or she may change. Lear only fitfully realises that his own history, as one who ignored virtue and became hardened when in office, softened only when out of office, darkly exemplifies this conclusion. In allowing this judgment to surface, Shakespeare has placed the audience in the position of a jury, and has arranged the action along the lines of Thomas Wilson's advocate who, we recall, stirs the hearts of judges or a jury to pity the plight of the victims and arouse indignation against their oppressors, in order to find justice: 'In moving the affections, and stirring the judges to be grieved, the weight of the matter must be so set forth, as though they saw it plain before their eyes.' The Servants act as moral guides in our assessment of justice in the Quarto, but their absence from the Folio does not exclude the same conclusion, since the action itself ipso facto, stirs the 'Affections' against those who blind Gloucester. However, the sardonic conclusion of the play, as of More's Utopia, is that on earth the positivists and the sceptics have one trump card, power itself, and this renders those who seek to live by Natural Law deeply vulnerable. The rest of this [essay] will trace the challenges they face, to the dismaying conclusion where poetic justice itself is swept aside in the sight of the limp, dead body of Cordelia in her father's arms. In the terms of this book, King Lear affirms the existence of Natural Law located in the human heart, and the hope that it can be implemented through poetic justice, but equally fundamentally questions the likelihood that it can survive more 'unnatural', institutionalised uses (or misuses) of positive law. Shakespeare, while agreeing with Hobbes about the jungle-like savagery of human struggles for power, opposes the Hobbesian assumption that only the state can deliver justice. Indeed, he tends to locate the true source of injustice in the state itself, and the only resistance to injustice lies within human reason and conscience.
The 'Trials' in scenes 13 and 14 may be cruel parodies of justice, but they clearly tell us much about the relationship between positive law and Natural Law in the play. They are also perverse images for the most important trial of all, the one which opens the play when Lear tests his daughters' fitness to rule in his stead. The first scene presents a series of trials within trials. Each of them carries both senses of 'Trial', as 'Test' and also as quasi-judicial proceeding. First, King Lear puts his daughters on trial. If, in this absolute monarchy, his will is law, then he is making positive law in proposing to divide the kingdom into three parts, and to distribute them on 'Merit'. His particular procedure is to promise disposal of the largest bounty 'Where nature doth with merit challenge' (I. i. 53), on the face of it an appropriate task for the machinery of justice. He puts to each of his three daughters in turn a question designed to test 'Merit' by simultaneously testing 'nature' according to a version of the law of kind which is expected to operate in Renaissance family relations: 'Which of you shall we say doth'Love us most' (line 51). It is clear, however, that this is a 'show-trial' since his decision has already been made, and as each sister answers he will offer a predetermined moiety. His decision has been kept from his courtiers, Gloucester and Kent, since at the beginning they were discussing which of Albany (Gonoril's husband) and Cornwall (Regan's) is to gain the larger portion (emphasising in passing that although the women are tested the men are the ones who will financially benefit) but Lear has already made his decision and the public occasion is a ritual affirmation. He has reserved 'A third more opulent' than her sisters' for Cordelia. Gonoril and Regan, playing their part in the royal ceremony, treat Lear's question as a positive law and royal command. They trot out speeches that sound just as pre-scripted as Lear's, and they successfully meet the test. The asides heard by the audience from Cordelia generate the fundamental clash of legal and moral values which will throw the state into civil war and send Lear mad: 'What shall Cordelia speak? Love, and be silent' (line 62).
Then poor Cordelia!
And yet not so, since I am sure my love's
More ponderous than my tongue.
Appropriately enough for one whose name incorporates the word 'Heart' (cor) she is speaking from the heart rather than from political expediency, from felt duty to conscience rather than hollow 'Obedience' (line 278). None the less, when she speaks, her words have legal substance. To the question put by Lear she merely says 'nothing'—equivalent to a refusal to enter a plea of guilty or not guilty, and she redefines the nature of the trial. If, she says, Lear is proposing a contractual bargain (words in return for riches) then she cautions him in language of pure reason and law that such a contract is compromising other contracts:
Good my lord,
You have begot me, bred me, loved me.
I return those duties back as are right fit,
Obey you, love you, and most honour you.
Why have my sisters husbands, if they say
They love you all? Haply when I shall wed,
That lord whose hand must take my plight shall carry
Half my love with him, half my care and duty.
Sure I shall never marry like my sisters,
Love my father all.
LEAR But goes thy heart with this?
CORDELIA Ay, my good lord.
(Scene 1, 87-98)
Cordelia is invoking the terms of Natural Law. Her 'Heart' (conscience) informs an argument which is more soundly based on reason, conscience, and the law of kind than Lear's own command. She points out with legalistic precision that it is impossible for her sisters to claim to love a father 'All' when each is married and 'Owes' love to her husband. Cordelia is not married, but she has been told by Lear that her future husband will be either the King of France or the Duke of Burgundy. At this stage, in a new sense, Lear himself is on trial, for his decree based on authority stands unexpectedly questioned in an impromptu court of Natural Law. Characteristically, he refuses to move his position, and equally true to character Cordelia remains consistent, so that there can be no meeting of minds. By disinheriting Cordelia, Lear is using his royal power in the fashion of Cornwall, to make another decree, directly opposing Natural Law with his authority to make positive law, and ironically displaying the 'Hardness' of heart which he later recriminates. His own barely perceived recognition of the fragile basis of his judgment is, no doubt, one of the contributory causes, together with a sense of personal rejection, of his near-hysteria: reason and conscience may be working, but Lear suppresses them, and covers up any doubts he may hold.
The set of trials-within-trials is immediately followed by two others, where the same opposition between Natural Law and positive law is in issue. Kent accuses Lear of madness, folly, and bad judgment in giving his trust and power to the two eldest daughters over his youngest, and by doing so he aligns himself with Cordelia's Natural Law of reason and feelings, claiming to be Lear's 'physician' (line 153). Once again, Lear bases his judgment (if that is not too cool a word for his rage) on the felony of disobedience in trying to make a king break his vow (line 158), of attempting 'To come betwixt [his] sentence and [his] power' (line 160), and he banishes Kent. When he stands on his 'nature' and his 'place' (line 161) he is in reality simply asserting his power over a subject in the manner of positive law. The next trial is between France and Burgundy, over who will choose Cordelia. Burgundy takes his lead from Lear, equating Cordelia with material wealth and since 'Her price is fallen' (line 187) he does not feel contractually bound. France, preferring to follow the reasoning of Cordelia and Kent in declaring that 'Love's not love When it is mingled with regards that stands Aloof from the entire point' and that 'She is herself a dowry' (lines 233ff), takes her in marriage. France takes her 'virtues' as the dowry and discovers that his love has kindled to 'Inflamed respect' (line 255). We might add that after this succession of trials in the first scene, another immediately follows in the second, when Gloucester's claim to love equally his sons Edmund and Edgar is tested. Admittedly, this is precipitated by Edmund's trickery but Gloucester, who prefers astrology, superstition and the state's laws of 'Legitimacy' to either reason or the feelings he claims to find within him, is an easy dupe. Effectively he is no better than Lear who arbitrarily disinherited his best loved daughter, since Gloucester first accepts society's prohibition against any rights for bastards, irrespective of his own 'natural' affections, and secondly he does not question allegations of Edgar's disloyalty. The results are just as calamitous for the Gloucester family as those stemming from Lear's mistake for his family, since both families are by the end of the play literally destroyed, except for the one survivor, Edgar.
Positive law, at least in this play, is simply the extension of the will of a sovereign ruler, while Natural Law has its source in the human mind and heart working independently of worldly authority. Lear has set up the situation where these systems are in direct conflict, and the titanic struggles which follow are as much in his own mind as in the state, and they are certainly his responsibility. His madness and his mental breakdown reflect the fundamentalist nature of the clash, and the play relentlessly follows the course of the dispute.
Positive law, authority, and evil
Cordelia, Kent, to some extent Edgar and the Fool, together with a procession of kindly servants, gentlemen (at least in the Quarto) and a doctor, all stand out against positive law on behalf of the Law of Nature in acts which the legal theorist John Rawls8 would call conscientious resistance. Positive law, vested in worldly authority, however, is seen as immensely effective and destructive, even over Natural Law itself, and to understand its power we must examine its claims to legitimacy. Set against the essentially equitable and Natural Law appeal to feelings that lie behind conscience, charity and reason (in the sense of reasonableness rather than strict logic), lies Cornwall's appeal to authoritarian 'Form of justice' as the basis for law. His argument is harder to parry in theory than in practice, for there is behind Cornwall's words a firm, if debatable, understanding of law itself Law for him is positive law, without appeal beyond itself, and positive law is whatever a properly constituted authority deems it to be. Gonoril later makes the same point to Albany: 'The laws are mine, not thine, Who can arraign me for'T?' (Scene 24, lines 154-5), and Lear, although now he lacks authority himself, knows that a king cannot be taken for coining since he is the king himself, owning or even 'being' both currency and law. In the general context of jurisprudence Roger Cotterell makes the point by quoting Emil Brunner:
The Protestant theologian Emil Brunner wrote: 'The totalitarian state is simply and solely legal positivism in political practice . . . the inevitable result of the slow disintegration of the idea of justice'. And he adds: 'If there is no justice transcending the state, then the state can declare anything it likes to be law; there is no limit set to its arbitrariness save its actual power to give force to its will'.9
As many divine-right theorists argued, the monarch is the law, and is at the same time above the law, and one whom only God may judge. Whether or not Natural Law exists is virtually an unnecessary question in this formulation of authority, since not even the monarch needs to be credited with any understanding of it. The situation in the play's kingdom may be messy, with four rather than one in the position of monarchs, but the theory still remains. The only qualification is that authority must be backed up not by morality but by the brute power to enforce law, and it is clear that effectively power now lies with Cornwall, Gonoril, and Regan, Albany being marginalised. Within such an understanding, there is no room for appeals to Natural Law, nor are there legal checks against tyranny, arbitrariness, or corruption. Such sanctions as may exist are political (or military), the counter assertion of superior 'power'. The latter half of the twentieth century must be haunted by Hitler's apparent declaration after a massacre of his party members in 1934, ratified by ex post facto legislation: 'The supreme court of the German people consisted of myself.10 At every level in the system of authority which applies, justice is no more nor less than the will of the person wielding power, and such a will may be implicated in the very corruption which it seeks to judge:
An the creature run from the cur, there thou
might'st behold the great image of
authority. A dog's obeyed in office.
Thou rascal beadle, hold thy bloody hand.
Why dost thou lash that whore? Strip thine own back.
Thy blood as hotly lusts to use her in that kind
For which thou whip'st her. The usurer hangs the cozener.
Through tattered rags small vices do appear;
Robes and furred gowns hides all.
(Scene 20, lines 151-9)
Shakespeare is returning to the terrain oí Measure for Measure, the corrupting potential of power, its hypocrisy, and its self-referential ability to enforce unreasonable laws. It is ironic that Lear should be the one who comments thus, since it was he who initiated the new, tyrannical regime by royal fiat, more or less as Sidney's Duke Basilius did in the Arcadia (a work which the play draws upon), or like Shakespeare's Duke Vincendo, who delegates rather than transfers authority but still effectively abdicates. Gonoril diagnoses Lear's own confusion: 'Idle old man, That still would manage those authorities That he hath given away' (Scene 3, lines 16-17), but it is perhaps a person who has once held, and then relinquished ultimate authority, who can best perceive the misuses and abuses of power exercised by others, and in recollection of himself in his former station, though he may not so readily admit the latter. Cornwall, Gonoril, and Regan think and act as if authority gives the holder free licence unconstrained by moral considerations or any notion beyond their own wills. The legal maxim, posed as a question, Quis custodiet ipsos custodes? is consistently and bleakly answered in this play by 'superior force'. Righteousness alone, however true it may be to reason and conscience, is impotent when rulers are not constrained by moral considerations. On the other hand, as we shall see in examining the virtuous side of the question, the final agents of what we might call rectificatory justice do not work directly, or even fully consciously, but they do oppose force: the Servant, Albany's conscience, even the apparently 'natural' tendency of evil characters to quarrel and destroy one another, are all ultimately effective in some way. Natural Law, like God, may act in mysterious and indirect ways, and apparent defeat can lead to ultimate victory. Milton was to place his trust in such a creed, and as we shall see in the next chapter, on issues such as the accountability of rulers and divorce, three hundred years passed before he was vindicated. For the virtuous forces in King Lear, to invoke a phrase in Love's Labour's Lost, 'That's too long for a play.'
In the context of a play, the positivist logic can be exposed as dangerous if not quite provably fallacious, but it is sobering to remember that the arguments of Hobbes and legal positivists alike, and the modern system of rule by law itself are, in essence, based on just such a logic. If this were not so, where would a properly elected government gain the authority to reverse law made by its predecessor, and why should common law generate new precedents that so qualify earlier ones that they appear to overturn them? Such checks as we have, lie respectively in the political process for passing statutes and in what the prevailing climate of opinion finds acceptable, not in the substance or procedures of law itself. King Lear may show positive law in the ascendancy and at its worst, but the train of events also presents at least 'pathetically' to the feelings of the judging audience in Wilson's sense, why some kind of Natural Law is necessary in a world where positive law rules. Authoritarian, positivist versions of law prevail, but audiences and readers are made aware of a coexisting, more benign and morallybased, form of judgment. That such legitimated injustice prevails over Natural Law in the political world of King Lear does not mean that the latter does not exist and operate in the play's moral scheme.
Edmund's law of nature
Before turning more fully to Natural Law in King Lear, we must address a different use of the word 'nature'. This second form of 'Law of nature' (what in this book has been named natural philosophy as it links all the natural world) is the one under which Edmund at least claims to operate, and it is the driving force behind the other 'evil' characters as well. They obey what is popularly called by neo-Darwinians 'The law of the jungle' (incidentally slighting the peaceable kingdom of animals and plants, where in truth 'necessity' rather than competition is the basic driving force, and also misrepresenting Darwin). Without exception, all critics have interpreted Edmund's famous speech on 'Nature' at face value,11 but it must be clear on close reading that he is not in fact invoking any recognisable version of 'nature'. Rather, he is perversely making himself the slave of the very social 'custom' that he reviles:
Thou, nature, art my goddess. To thy law
My services are bound. Wherefore should I
Stand in the plague of custom and permit
The curiosity of nations to deprive me,
For that I am some twelve or fourteen moonshines
Lag of a brother? Why 'bastard'? Wherefore 'base',
When my dimensions are as well-compact,
My mind as generous, and my shape as true
As honest madam's issue?
Why brand they us with 'base'? with 'base, base bastardy'?
Who in the lusty stealth of nature take
More composition and fierce quality
Than doth within a stale, dull-eyed bed go
To the creating a whole tribe of fops
Got 'Tween a sleep and wake? Well then,
Legitimate Edgar, I must have your land.
Our father's love is to the bastard Edmund
As to the legitimate. Well, my legitimate, if
This letter speed and my invention thrive,
Edmund the base shall to th' legitimate.
1 grow, I prosper. Now gods, stand up for bastards!
(Scene 2, lines 1-21)
The sense in which Edmund is appropriating 'nature' is semantic rather than substantive, deriving from the term 'natural child' for a bastard who is conceived, as he sees it, outside wedlock in animal passion, rather than within the dull habit of marriage. He also uses nature as antagonistic to society, in the same sense that during the storm scene several characters see the elements of nature as opposing mankind. Like Shylock, Edgar has a point, in so far as legitimate and illegitimate alike are 'natural' in the biological sense and there should be no basis for inequality. However, in his argument he is not appealing to anything beyond human institutions, and in so far as he is relying on a moral order it is merely as a challenge to positive law. He is showing up and railing against the contradictions in laws of inheritance. Renaissance law, for example, based rights to inheritance law on the issue of marriage, and Edmund's complaint is that 'Legitimacy' is defined simply through this artificial construction, rather than parentage or even affection. A daughter born before a male heir, even 'Legitimately', would have the same grievance. He is not appealing to a transcendent scheme of natural justice, but rather is condemning an existing, hypocritical system and asking for his proper inheritance rights as a 'natural' son, within society's own rules. In his spirit of acquisitiveness he wants not equality and morality as human values in themselves, nor even some form of fair, distributive justice, but rather property and money all to himself. He is no Raphael Hythlodaeus, challenging the basis of property from a 'Natural' point of view. Just as Gonoril and Regan feigned filial love to gain inheritance, so Edmund's plot to turn his father against the 'Legitimate' Edgar is a stratagem to get land, not an action based on any kind of law observable in the world of nature. Like Cornwall's group, he basically wants power. Edmund's spurious reference to nature as a goddess is no more than a rationalisation of human greed. It carries no more weight than Lear's description of Cordelia as 'A wretch whom nature is ashamed Almost to acknowledge hers' (Scene 1, lines 202-3).
Obviously, later thinkers such as Hobbes and some followers of Darwin have elevated greed into a 'natural' law by calling it 'Human nature', but such a conclusion is not necessitated by Shakespeare's words, nor is it for that matter necessitated by a reading of human history. We may be attracted to the energy and charisma of an actor who plays Edmund, but there are few signs in the text that such admiration should extend to his morality or his actions. They are certainly implacably opposed to the tenets of Aquinas and classical Natural Law.
For every power-hungry tyrant there have been thousands at least silently opposing him; for every greedy person there are many generous ones; for every militarist there have been many who prefer peace, and so on, and all these contrasting types are depicted in Shakespeare's play. Edmund's 'nature' in King Lear is something of a red herring, and our reading of More's Utopia might invite us simply to replace his 'nature' with 'private property'. This is not to argue that Edmund does not have a just complaint against a society which allows his father to boast about the lust in which his son was conceived, while depriving that son of a share of the father's inheritance. Such a society is neither just nor fair in our terms. As a concession, Shakespeare mollifies the 'poetic justice' which kills Edmund at the end by giving him one last repentance, perhaps even a conscience, when in his dying moments he sends the order to reprieve Lear and Cordelia, an order that comes too late for Cordelia.
Where Edmund departs radically from classical Natural Law is in defining nature as a vindictive force and directly opposed to human society. He is merely employing the forms of social injustice and power-manipulations that he has learned from others, and the kind of positive law implementation that we have observed in Cornwall. The ruthless sexual acquisitiveness with which he throws Gonoril and Regan into competition against each other is evidence that even in intimate situations he follows these rules of power. Natural Law requires quite the reverse, centralising charity and the placing of social good above personal ends, co-operation above competition, drawing on the physical universe, if at all, only as a metaphor for 'Laws' which are regular and consistent. Kent's 'The tyranny of the open night's too rough For nature to endure' (Scene 11, line 2) makes clear the reading of 'nature' as human and communitarian in essence, pitted metaphorically against the 'Tyranny' of outward storms. The clearest contrast in the play lies between Edmund and Cordelia. Where his actions are motivated by the desire for individual power and status, and where his thoughts reveal little concern for conscience until his final gesture, Cordelia is willing to forfeit power and status when they are offered, before she will compromise on conscience. What we may be witnessing in the creation of Edmund is the birth of a modern myth of nature as red in tooth and claw, and an equally post-Hobbesian, Darwinian, assumption that human nature is the same.
Gonoril and Regan, and later Cornwall, also follow no 'natural' imperative. They simply want power, wealth and property, and given their chance the first two use unashamed flattery and unfelt sycophancy to achieve their ends. Once they have power, as we have seen, they equate law with their own wills, without reference even to the 'gods' that many others call upon, let alone to a system of morality or social justice. Gonoril and Regan, significantly, kill each other: dog may not eat dog in the world of nature (although it may eat, for example, rabbit for necessary food), but human may kill human when they enter the lists of power-play and competition, abandoning the Law of Nature written in their hearts. Cornwall is killed by what can be interpreted as a rival moral system, more literally by a servant acting on behalf of an altruistic set of values, even if the Servant is himself slain. When we wish to answer 'no' to Lear's question 'Is there any cause in nature that makes these hard-hearts?' we need not be sidetracked by Edmund's call to 'Nature' as his goddess.
Necessity, charity, and Natural Law
In our analysis of King Lear we may now move to a consideration of most of the major issues raised in this book. The play gives a representation of an absolutist political system where rulers seem rarely if ever constrained by moral considerations (the 'Moral' man, Albany, loses power because he has qualms, and even when offered power at the end he refuses it) or by anything beyond military power itself. Might is considered, at least by the mighty, to be right, in a treatment by Shakespeare which could be read as a merciless satire on perversions of power. Despite many characters' calls upon gods, there are no dei ex machina and no evidence of manipulative gods.12 The most virtuous character, Cordelia, ends up not only unrewarded but dead, and the two who might, as suffering indexes of good and evil, be said to have learned something, Lear and Gloucester, both also die. We should recall that Shakespeare has gone out of his way to create such an unrelieved and negative picture of the consequences of tyranny, since he has decisively altered most of his sources in giving us these deaths. If, as I have argued, Renaissance literature is, according to rhetorical theory, supposed to be morally educative, Rymer's question of Othello could be directed to King Lear: 'What learn you by that?', when all vestiges of poetic justice are violated, at least by Cordelia's death.
At the same time, this play above all others has been seen, especially in the twentieth century, as the most morally educative of all those by Shakespeare or any other writer. The contradiction—absence of an effective, implemented moral code within the play-world may paradoxically lead to the construction of a supremely moral experience for the audience—is resolved by the omnipresence of Natural Law in all its facets, and by the crucial 'participation' in Aquinas' sense, of readers and audiences in completing the circle. The resonant line 'Thou, Nature, art my goddess' could be appropriated from the reprehensible Edmund and redistributed in a different sense, certainly to Cordelia and also to each reader and each member of an audience. It is unseen Nature working its Laws of reason and conscience through virtuous characters, which dictates our capacity to make moral judgments on the action, and to distinguish between good and evil even where evil prevails in the worldly sense. The play is far from Utopian, and indeed is despairing of social improvement until power itself is eradicated, but it does consistently endorse a code of values based on Natural Law which leads virtuous characters to oppose authority's version of positive law. In turn, Cordelia, Kent, and others are driven by conscience and reason into positions of civil disobedience based on their beliefs in communitarianism, loyalty, and human sympathy. In a play which is backgrounded with the English adversities of common life, 'Poor pelting villages, sheep-cotes, and mills' (Scene 7, line 184), where the mere sight of beggars enforces 'charity' (line 186), a set of local communities with 'Wakes and fairs and market towns' (Scene 13, lines 68-9), ranging in its dramatis personae from monarchs to a naked Bedlam beggar, it is significantly those who do not hold power who emerge as the most virtuous. They are driven by simple 'need', by 'necessity', and they are solicitous of others in need, only because they know what it is to suffer. In his unregenerate state, threatened with the disbanding of his personal followers, Lear had fulminated 'O, reason not the need! Our basest beggars Are in the poorest thing superfluous': 'Allow not nature more than nature needs, Man's life is cheap as beast's' (Scene 7, lines 423-6), but he speaks without the experience of true need. He is rationalising 'superfluities'. In the next scene but one, cold in the storm and seeking shelter, he recants, musing 'The art of our necessities is strange, that can make vile things precious' (Scene 9, lines 71-2). As the Fool reminds him, and as he altruistically realises, in a storm rain is wet, shelter is welcome. Lear finds that need does exist amongst humans, and furthermore that there is human responsiveness, and the impulse to help others. He has entered a new ethical arena, where 'need' must be 'Reasoned', and where it is the imperative to charity, Luther's prime nutrient of Natural Law. The lesson is one that can be learned by Lear only in extreme adversity, divested of his pomp and ceremony. It is one of the play's starkest ironies that tenants, paupers, and beggars, all of whom have little means and many basic needs, are able to understand the basis of mutual aid in hardship, while kings, with all the resources at their disposal to eliminate poverty, cannot; that only need can recognise need, and, spurred by reason and conscience, try to meet it.
We have already noted the actions and words of servants who are more moral than their masters and mistresses, and to them we could add other characters who appear at least in the Quarto, such as Gloucester's tenant, the Old Man who offers to help him, the messenger who describes so eloquently Cordelia's grief (Scene 17, lines 17-24), the patient, understanding Doctor who helps Lear, and others. It seems no accident that the dramatic design puts Cordelia in the position of a disinherited child, Edgar into the disguise of a beggar, and Kent that of a Servant, and makes a Fool the trusted companion and political adviser to the fallen king, for it appears that virtuous action is the exclusive prerogative of the marginalised, the powerless, and the insignificant. While the great and lofty in power (including Lear as king) pursue self-interested motives, Machiavellian tactics for holding power, and a Hobbesian sense that human life is expendable, those at the other end of the social spectrum (including Lear himself when he is no longer king), demonstrate sympathetic charity. The 'Intense imagining' of Edgar in his construction of the dizzying heights of Dover Cliff has not only a poetic and rhetorical but also a moral basis, and it is significant that his stage-managing of his father's 'Fall' is, at least in Edgar's eyes, justified: 'Why I do trifle thus with his despair Is done to cure it' (Scene 20, lines 32-3). Cordelia's responses are consistently based on reason as the moral faculty and conscience as the stimulus to action. Her 'Nothing', simultaneously so disastrous in its results and so glorious in its courage, is based not on obstinacy, but a moral principle, in the face of a statement couched as a request but in reality a command:
LEAR But now, our joy,
Although the last, no least to our dear love:
What can you say to win a third more opulent
Than your sisters?
CORDELIA Nothing, my lord.
(Scene 1, lines 77-83)
Her earlier asides confirm her love for her father and her refusal to be drawn into a public declaration of it for personal gain. Love is silent in a context of power, her 'Love's more richer than [her] tongue', to be proved by actions and not by words. Her reasoned response to Lear's demand is to assert some tenets of Natural Law: one loves according to some 'bond' of nature and inclination rather than to prescribed forms of words. Forced to 'Heave' her heart into her mouth and use words when she would prefer to be silent, Cordelia must couch her response in terms that sound at first like positive" law based on contractual obligations, but this implication is a coercion of Lear in setting up the situation. She is forced to answer authority with law. When we recall that axiomatically positive law is supposed to be in line with Natural Law, we can recognise that Cordelia is not standing upon a positive law—indeed, she is refuting Lear's positive 'Law'—but instead explaining rationally the moral basis for the 'Law of love' in the very terms introduced by Lear. 'Nothing', her answer to Lear's indecorous question supplemented by her explanations, carries the full weight of reason and conscience. When reluctantly talking, she cannot avoid altogether Lear's linguistic circuit, and, as he asserts an authoritarian version of law (rewards will be distributed according to royal whim), so she asserts a Natural Law (rewards and punishments are irrelevant beside the overwhelming compulsion of reason and conscience). Like most examples of conscientious resistance and refusal to obey authority's demands, Cordelia's gesture precipitates as much if not more anger and destruction than would outright opposition, for she is refusing to accept the basis for authority at all when it conflicts with conscience. The events of the play, dismaying as they are, unravel from this exchange. Responsibility, however, lies not with Cordelia but with Lear who, again like Basilius, attempts to assert positive law over Natural Law.
Kent's outburst, claiming the privilege of spontaneous and 'natural' anger at witnessing an injustice, is a different kind of political action. He implicitly accepts the absolute authority of Lear, but directly opposes his judgment and justice in the immediate case of appointing royal successors. Like Cordelia, Kent takes inspiration from the 'Region' of his heart, but, in accusing Lear of madness, of folly, 'Hideous rashness' and of bowing to flattery in misjudging his daughters, he is not questioning Lear's authority. He begs the king to reserve his state and apply 'best consideration' by reversing the decision, thus bringing positive law into line with manifest justice based on true deserts. He claims the position of a physician trying to cure a disease (lines 154-5), a metaphor which points to the 'naturalness' of his advice. Lear, speaking in Angelo's terms of alienated authority based on 'Our sentence and our power' (an anticipation of Cornwall) asserts that neither his 'nature' nor his 'place' nor (more to the point) his 'potency' can accept such opposition, and he banishes Kent. Thereafter, Kent is completely and loyally consistent to his own self-defined 'bond', for, disguised as Caius, servant to Lear, he acts in willing servitude to his master. He refuses to accept the legitimacy of the new regime of rulers since, in his view, it is not based on a judgment consistent with reason and conscience. While Cordelia tacitly repudiates Lear's authority to act as he does, Kent accepts his authority but opposes his judgment (in both senses of the word, judicial and psychological), but they both agree that Natural Law is here opposed to positive law. Kent's touching farewell to Cordelia says as much:
The gods to their protection take thee, maid,
That rightly think'st, and hast most justly said.
(Scene 1, lines 172-3)
In the 'Mini-trial' that follows, Burgundy refuses Cordelia in marriage, revealing that he sees her simply as property, as a dower, whereas France bases his decision to marry her on the basis of love and 'Inflamed respect' ('She is herself a dowry'), and on 'Reason without miracle' (Scene 1, line 213). Burgundy is establishing himself incidentally as a legal positivist in looking no further than immediate contractual circumstances of a dowry, France as a Natural Lawyer, looking beyond present authority to more ultimate values.
As the action unfolds, Cordelia becomes more and more equated with benevolent and healing natural forces. To her all natural things in distress are equally deserving of pity:
Mine injurer's mean'st dog,
Though he had bit me, should have stood that night
Against my fire. And wast thou fain, poor father,
To hovel thee with swine and rogues forlorn,
In short and musty straw? Alack, alack!
(Scene 21, lines 34-8)
Tears of sympathy and grief are her emblem, and virtually a whole scene (17) is devoted to them:
GENTLEMAN . . .
And now and then an ample tear trilled down
Her delicate cheek . . .
KENT O, then it moved her?
Not to a rage. Patience and sorrow strove
Who should express her goodliest. You have seen
Sunshine and rain at once; her smiles and tears
Were like, a better way . . .
(Scene 17, lines 13-20 passim)
'What, i'Th' storm? i'Th' night?
Let piety not be believed!' There she shook
The holy water from her heavenly eyes,
And clamour mastered, then away she started
To deal with grief alone.
(Scene 17, lines 29-33)
Kent's comment in response that 'The stars above us govern our conditions' strikes us as glib in the manner of the superstitious Gloucester, when seen in the light of the constant equation drawn in the latter stage of the play between Cordelia and natural forces. It is she who brings the description of Lear,
As mad as the racked sea, singing aloud,
Crowned with rank fumitor and furrow-weeds,
With burdocks, hemlock, nettles, cuckooflowers,
Darnel, and all the idle weeds that grow
In our sustaining corn.
(Scene 18, lines 2-5)
She collaborates with the doctor who uses not drugs but nature and its 'simples operative', perhaps the 'Idle weeds' some of which had curative functions, as Culpepper testifies, to induce sleep, and even, in the case of 'sweet marjoram' later mentioned by Lear, to allay madness:
Our foster-nurse of nature is repose,
The which he lacks. That to provoke in him
Are many simples operative, whose power
Will close the eye of anguish.
(Scene 18, lines 13-16)
Cordelia calls on nature itself to heal:
All blest secrets,
All you unpublished virtues of the earth,
Spring with my tears, be aidant and remediate
In the good man's distress!
(Scene 18, lines 16-19)
Cordelia's earlier, stubborn insistence on conscience is now linked with nature itself, as benevolent and as a moral force, to construct an emblem of Natural Law, brought into consistency with natural philosophy. Her nature is poles apart from Edmund's, which is closer to Hobbes's model of acquisitive 'Human nature'. The victimisation and execution of her define more clearly than anything else could, that her enemies are also the enemies of both nature and Natural Law. The unutterable pathos (in Thomas Wilson's sense) of her death is generated from the echo of her natural imagery in Lear's anguished 'Why should a dog, a horse, a rat have life, And thou no breath at all?' (Scene 24, lines 301-4). Nature's companion has now become no more precious and unique than any of nature's beings. The image of her lifeless body makes a mockery of Albany's obtusely simple minded distribution of poetic justice:
All friends shall taste
The wages of their virtue, and all foes
The cup of their deservings.
(Scene 24, lines 297-9)
If this 'Friend' is dead, then there is a sense in which virtue itself, far from being rewarded, has ceased to be.
If the audience and readers are in the position of a jury, then the ending of this play requires us to give our verdict by referring to our reasoning powers and activating our consciences, and in this case to feel outrage at the deeds of those who opposed Natural Law, while acknowledging the worldly destructiveness of evil. The educative function of the play, then, lies not in apportionment of rewards and punishments as Nahum Tate's eighteenth-century rewriting attempted to represent, but in making us 'Feelingly', through witnessing victimisation, extend and implement the lessons of Natural Law, charity, and sympathy. An unfortunate inference is that outside Thomas More's state of Utopia, no such ideal world is available as a refuge, just as in Utopia itself the world of Europe remains incorrigible. Even Lear's comforting vision of prison as a place of observing gilded butterflies and acquiring the mystery of things is a whistle in the darkness.
The ambiguity discovered by critics in the line 'And my poor fool is hanged' (Scene 24, line 300), whether intended by the dramatist or not, points us towards another equation, that between Cordelia and the Fool.13 The Fool also speaks from a basis in Natural Law, although he is more retributory and reproachful than Cordelia, losing no opportunity to bait Lear with the king's folly and injustice. He is the truly anti-authoritarian man, professionally licensed to challenge and undermine the power of those above him in the social hierarchy, and particularly the monarch at the top, and to disrupt even linguistic and conversational expectations. He taunts Lear, sometimes harshly, for dividing the kingdom so inequitably and for banishing his youngest daughter, but any cruelty in his attacks stems from loyalty towards Lear, love of Cordelia, and respect for a sense of collective good. He is more angrily subversive towards Gonoril when she holds power: 'I am a fool, thou art nothing' (I. iv. 192). In calculated puns, misdirections, underminings, he is directly threatening not only the authority of speakers, but that of language itself, at least in its assumed status as a stable signifier of 'Meaning'. Unlike Kent and Cordelia, the Fool has no capacity to influence events. He even 'pines away' after Cordelia goes to France, and eventually out of the play altogether. His role is largely that of gnomic commentator on folly, injustice and breaches of Natural Law. His is the one lonely voice that refers, however-sceptically and strangely, to a utopia of justice, equality, and freedom from exploitation, and his mysterious 'prophecy' dwells on how natural these states are—as easy walking, in fact—and yet how unlikely they seem to be for mankind to achieve, at least in the 'confusion' prevalent in this play's Albion:
When every case in law is right;
No squire in debt, nor no poor knight;
When slanders do not live in tongues,
Nor cutpurses come not to throngs;
When usurers tell their gold i'Th'Field,
And bawds and whores do churches build,
Then comes the time, who lives to see'T,
That going shall be us'd with feet.
(Folio only, Tragedy 3.2.87-94)
In other words, when the world is honest, then living will be as easily natural as walking. The weird comment that follows, sounding more the note of postmodern novels than a Jacobean play, 'This prophecy Merlin shall make; for I live before his time', throws the time of utopia outside the play and outside history itself, defining it as the kind of timeless state of Natural Law which is eternally present as a moral touchstone, but which the Fool, in his pessimism, sees as absent from the dealings of people in his world.
Lear himself is disingenuous in claiming to be 'More sinned against than sinning' (Scene 9, line 60) for it was he who precipitated all the disasters depicted as a consequence of the 'division of the kingdoms.'1 4 The play can be rather reductively read as a punishment of Lear and the kingdom as a whole for his violation of Natural Law at the beginning of the play, not only a breach of the 'Law of kind' in rejecting his best loved daughter, but also an injustice in rewarding the unworthy daughters and punishing the virtuous one. The consequences of these 'sins' are to drive Lear into a direct confrontation with the very forces of nature which he has opposed. The storm scene can be read as allegorical in Spenser's sense, as the forces that Lear has gone against now humble and educate him. From this archetypal encounter Lear may learn some things, but too late for remedy. One thing he does learn about is 'The art of our necessities' (Scene 9, line 71), a concept legally and emotionally defined, which we have seen to be important in Love's Labour's Lost. 'Necessities' or needs are infinitely various, and depending on the situation 'can make vile things precious' (ibid.). But in this context they take us back to the notion of a minimal content of Natural' Law. In order to survive in a violent storm when threatened with assassination, the text reveals, necessities are shelter and protection, literal and psychological, both of which require a form of human bonding which must be 'natural' in all senses, instinctive, and fulled by reason and conscience. Mutual aid and charity in its fullest sense take the place of self-defence in the struggle for survival, when the antagonist is the natural world of wind and rain rather than a human adversary.
The play gives an array of circumstances in which discrimination between what is a true need and what is not is raised as a problem. It is his daughters' dismissal of his 100 men that drives Lear to contemplate the issue. Gonoril and Regan clearly act politically rather than from their avowed distaste for the retinue's lack of house-training. To tolerate the existence of what amounts to a standing army loyal to the former king would, to these political pragmatists who believe that might is right, be courting the possibility of a reactionary coup. Regan questions Lear's 'need' of even one man in attendance, which unleashes his rather confused but enraged response:
O, reason not the need! Our basest beggars
Are in the poorest thing superfluous.
Allow not nature more than nature needs,
Man's life is cheap as beast's. Thou art a lady;
If only to go warm were gorgeous,
Why, nature needs not what thou, gorgeous, wearest,
Which scarcely keeps thee warm. But for true need—
You heavens, give me that patience, patience I need!
(Scene 7, lines 423-30)
Unregenerate as yet, Lear is simultaneously glimpsing and resisting the idea of 'need' as something that applies only in a world of deprivation, and not in that of a privileged 'Lady' or a king. Even the poorest beggar wears what is superfluous to his needs, and once we 'Reason' about whether something is needed, then we reduce man's life to the level of a beast's and strip it of all dignity. Ironically, a minute or so before, he had been speaking of 'Necessity's sharp pinch', and it is this he is about to encounter in the storm on the heath. Within a scene or two, Lear is to reassess his views, when he meets a 'philosopher' who wears virtually no clothes in a storm.
Lear is forced to test his analysis of 'need' by experiencing a situation offering little more than an animal's comfort in the wild (an analogy drawn by Cordelia), unprotected, 'bare-headed' (Scene 9, line 61) in the storm, 'Minded like the weather, most unquietly' (Scene 8, line 2). Here, as he 'Strives in his little world of man to out-storm The to-and-fro conflicting wind and rain' (Scene 8, line 10) on a night when even the bear, lion, and wolf keep their fur dry, Lear learns a fundamental law that 'True need' provides a model for existing within nature and its laws. Increasingly, his perceptions embrace the lesson that previously, kept ignorant in the mantles of authority, he could not have understood. He sees the storm as a judicial scourge, finding out 'undivulged crimes Unwhipped of justice' (Scene 9, lines 52-3) crimes committed by the very people who claim to hold authority in the human world. Reduced to 'necessity' he sees that the true need for humanity is not a troop of men or gorgeous robes, but simple justice. Leaf learns that in a storm his companion the Fool 'needs' shelter, the glimmerings of a moral sense which previously had been denied him. Extended to the social and political sphere, the logic leads towards Utopia's:
Poor naked wretches, whereso'er you are,
That bide the pelting of this pitiless night,
How shall your houseless heads and unfed sides,
Your looped and windowed raggedness, defend you
From seasons such as these? O, I have ta'en
Too little care of this. Take physic, pomp,
Expose thyself to feel what wretches feel,
That thou mayst shake the superflux to them
And show the heavens more just.
(Scene 11, lines 25-33)
This marks a reversal of his outburst to Regan. Instead of saying even a beggar has more than he 'needs' to survive, and thus more than animals, he is saying that , the beggar has less than is necessary, and he perceives that the injustice is directly caused by the superfluity appropriated by the rich and powerful. Gloucester, later reduced to similar need, discovers an equally communalistic, utopian-like basis of social justice, when in severe need himself he finds the compassion to give his purse to a presumed beggar:
Heavens deal so still.
Let the superfluous and lust-dieted man
That stands your ordinance, that will not see
Because he does not feel, feel your power quickly,
So distribution should undo excess,
And each man have enough.
(Scene 15, lines 64-9)
'Enough' for all is the maxim of Natural Law, 'distribution' is its basis for material justice, and the logic of 'Feeling' is awakened by the Aristotelian advocate deploying the rhetoric of pathos. The sardonic point silently made by the play is that it seems impossible for anybody in authority to learn this lesson and improve things, simply because they are blinkered by the very fact of holding authority. They have too much to lose personally by instituting such a state of Natural Law.
Lear even finds his natural 'noble philosopher' (Scene 11, lines 141 and 159), his 'Learned Thebaic'(line 144) of Natural Law, in Poor Tom who literally has 'nothing', and who is 'The thing itself! Unaccommodated man', a 'poor, bare, forked animal', and he removes his clothes in fellow-feeling (lines 98-9). Edgar's gibberish in his role as Poor Tom associates him with unpleasant facets of nature, eating cowdung, old rats, and ditch-dogs, like the beggars described by Raphael Hythlodaeus who are 'Whipped from tithing to tithing, and stock-punished, and imprisoned' (lines 122-3) simply for existing.15 He becomes for Lear the walking evidence of man's inhumanity to man, breaches of Natural Law, of injustice, and of the 'need' for conscience in making a human society. As well as being, with the Fool, the focus for Lear's new-found compassion, Edgar's condition also becomes in Lear's eyes the model of an ecologically non-exploitative existence, owing nothing to the silkworm for silk, to cattle for leather, to sheep for wool, and to cats for perfume. In the role of Poor Tom, one of his many quick changes, Edgar is less a 'character' than a functional catalyst, an agency for change and moral awakening.
Lear's sentiments in this part of the play are as communitarian, anti-individualistic, and anti-authoritarian as More's in his fictional version of Utopia. Once again, consistent with the Fool's despairing prophecy, neither Lear nor the play survives to see a state of justice according to Natural Law implemented in human society. Nor are there many signs that such a state will exist, without fundamental change in the world. It is for audiences and readers, as the judge and jury presiding over an 'As-if scenario, to pass judgment and take the lessons into their own societies.
That, as in Love 's Labour 's Lost, is too long for a play and can occur only afterwards.
The parallel, interlocking plot of the Gloucester family, follows the course of Lear's. A father commits an injustice against his progeny, a sin against/FÍatural Law, and not only does he suffer from his choice to follow vice and shun virtue, but so in different ways do the sons. In this case responsibility is shared (as it is between Lear, Gonoril and Regan and Cornwall) because the plot is hatched and perpetrated by Edmund for his own, self-seeking reasons. At the same time, as I have suggested, it was Gloucester (like Lear or, again, like Basilius) who set in motion the train of events by his ambiguous attitude to Edmund, at once admiring him as a reflection of the father's amoral virility and yet disinheriting him according to society's laws on bastardy. In strictly narrative terms we might exonerate Gloucester by saying he is duped, but that would mean we could exonerate Lear also, on the grounds that he was deceived by Gonoril's and Regan's speeches in the first Act. Like Lear, Gloucester acts impetuously, without consulting the evidence of his own eyes and his experience about Edgar's filial affection. He superstitiously blames the 'stars' in the astrological sense instead of his own actions which were indifferent to human reason and conscience. As Lear begins sumptuously dressed, surrounded by troops, and learns by being naked and alone, so Gloucester begins metaphorically with sight which he neglects to use, and learns through blindness. When he is led to 'see' the scene of Dover Cliff through Edgar's poetic construction, he is doing no more and no less than when he had 'seen' Edgar distorted through Edmund's eyes. He too has allowed positive law, the rules concerning 'Legitimacy', to blind him to more important, human values. In this sense Edmund does have a grievance, and, although the play does not condone his actions, it does explain them, and in doing so places primary responsibility for the family fortunes squarely with Gloucester himself.
Power and injustice
Right through his writing career, from the debates on the use and misuse of power centring on Henry VI and Richard III to Gonzalo's vision of a political utopia in The Tempest, Shakespeare worried away at problems concerning the nature of justice and authority in political worlds. He encompassed a dizzying kaleidoscope of models of justice, but the central distinction from which his plays derive much of their dramatic, moral, and intellectual energy is between man-made decrees, and something more 'natural' and eternal in its origin, beyond a world where people make mistakes of family justice and where humanity must perforce prey on itself. This is precisely the distinction between positive law and Natural Law. And if the dialectic pervades all Shakespeare's plays, nowhere is it more central, more problematic, and more pressing than in King Lear. This is somewhat ironic, since it is a play, like Love's Labour's Lost, which itself flouts all conventions of the form of 'poetic justice' as classically defined. Virtue, far from being rewarded, lies dead. Expectations are unfulfilled at every turn. To suggest that Shakespeare is systematically requiring audiences and readers to act as jury in a case raising Natural Law issues of reason and conscience is, as the evidence of this book testifies, not anachronistic in the Renaissance, but fairly standard practice. Milton's Areopagitica is the greatest theoretical exposition of the obligation upon readers to form their own moral judgments, and his Paradise Lost is no less insistent a practice of this theory than is King Lear. We have constantly discovered through our exploration of Natural Law that, at least in its classical version, its main assumption is that people do not need to be told the difference between right and wrong, but that within each individual is the innate capacity to discriminate through the faculties of reason and conscience. Even one like Spenser showing Calvinist influence can, in the medium of poetry, draw upon such a belief. Furthermore, according to the model, a person in tune with Natural Law by a kind of instinct inclines towards virtue and away from vice. In this sense King Lear becomes a clear example of a work in which the dramatist appeals to audiences to activate exactly these faculties. The plays of the period themselves bear witness to the fact that audiences were more imaginatively and morally active than those witnessing our post-Victorian stage practices. Brecht was one of the few who sought to tap the same active, judgment-forming faculties in his audiences, but it is arguable that entrenched, modern conventions were against him. Edward Bond follows in his footsteps, and it may be no accident that his most powerful plays are the adaptation called Lear and the play in which he represents Shakespeare writing King Lear, Bingo. Bond, like Shakespeare, gives no pat or easy solutions based on simple poetic justice, but rather he requires each member of his audience to search and construct a set of personal moral values out of the experience of the plays.
The most conspicuous point of both Shakespeare's versions of King Lear is the absence of a schematic 'poetic justice' which could easily have been applied by simply following sources, allowing Cordelia to live on, and take up the throne, or even to have allowed Lear to live on with his beloved daughter in autumnal reconciliation, as in Tate's version. Shakespeare has gone out of his way to reject his sources (whether legendary or historical), by killing off Cordelia and leaving a hiatus in the ruling of Britain. No self-respecting dramatist would expect his audience to accept this state of affairs as morally right, no matter what we think of the play's aesthetic qualities. The alternative 'Happy ending' such as Tate's simply leaves the reader and audience in a state of cosy complacency, omitting the 'supplement' of manifest injustice chosen by Shakespeare.
An important but sadly overlooked book published in 1949 by Edmond N. Cahn, The Sense of Injustice,16 posits that human beings may well be more 'naturally' able to recognise injustice than justice, as a prelude to the awakening of a desire for justice itself. Aristotle's emphasis on pathos in adjudicating a trial at law could be said to work on the same principle. The moral 'Work' required of an audience by such a scheme clearly continues after the play is over, with an invitation to the reader and audience to transfer a largely tacit and emotionally pitched analysis and exemplification of good and evil into their own lives, as, in a very real sense, the capacity to judge came initially from their own experiences. It is in the nature of rhetoric, after all, to convince us 'Feelingly' of injustice, without needing to spell out what justice itself compels. Once again, in lighter mode, Love's Labour's Lost emerges as the work, in terms of moral structure, oddly closest to King Lear, like a playful 'First run' for the immense tragic passion of the Lear plays. The crucial difference is that the courtiers in the earlier comedy 'deserve' the deferment and uncertainty of marriage they face at the close of the play, since they have overridden Natural Law by agreeing to obey a misguided edict, whereas Cordelia does not deserve death because she has, if anything, embodied Natural Law by instinctively following reason and conscience and by inclining to virtue. Here we might locate a more general 'Law' of Shakespearian drama which has been overlooked in all the hundreds of accounts of 'The nature of comedy' and 'The nature of tragedy'. Shakespeare's comedies, at their heart, become a contemplation of the effecting of justice according to their own internal Natural Law of sexual attraction, while his tragedies become a contemplation of injustice, violations of Natural Law precepts. This is so even in plays with a more 'villainous' titular hero than Lear himself: nobody at the end of Macbeth can bring back Lady Macduff and her children, the innocent victims of tyranny, and at the end of Coriolanus there is no force that can resurrect all those civilians killed in war by the military machine. The main offenders may be dead, and to this extent some version of poetic justice applies, but the profound injustices perpetrated by them cannot be rectified, and must instead remain as permanent witnesses to injustice. The lesson may be starker in Lear since the good and the evil alike are destroyed in a travesty of poetic justice, emphasising that injustice itself is intransigent when there are those around who do not follow innately the tenets of Natural Law.
Here lies an answer to the problems raised by the existence of 'Two versions' of Lear. Whçreas it is becoming common to describe the Quarto as compassionate and the Folio as harsh, we can equally argue that there is no fundamental moral difference between the two, and that if anything the Folio is more rigorously consistent to the underlying moral schema present in both. The Quarto gives more spoken guidance by offering choric voices and examples of human charity and Natural Law in operation which we may hang onto and identify with. The Folio, by shaving these away, leaves us more morally isolated, so that we must make up our own minds about good and evil without prompting, more or less like Milton's Adam and Eve at the end of Paradise Lost. It tests the reader and audience more starkly by requiring us to choose by reference to faculties which come from Within us rather than being asserted by the play. This parallels exactly the morally active practicum of reading and interpreting advocated by Sidney, Milton in Areopagitica, and the Aristotelian theory of rhetoric described by Wilson. Cordelia, in this sense, has acted in lonely integrity, and the audience and reader are encouraged to do likewise.
The actual conclusions drawn by an audience from the Folio cannot be different in kind from those generated by the Quarto. For example, it would be considered frankly impossible for any audience not to be repulsed by the blinding of Gloucester, whether or not we have two Gentlemen moralising directly about it at the end of the scene. Their presence in the Quarto 'History' version may focus the humanist response by introducing voices of pity within the action, yet, although in the Folio 'Tragedy' the tone is different, there is no reason why the reader/audience does not feel directly the same pity and outrage, perhaps even more keenly because the stage spectators are ignoring callously some obvious moral assumptions. The Folio is, then, simply carrying a stage further, the Quarto's insistence that Natural Law is a 'need' from within which can be obscured by the existence of questionable positive laws enacted by worldly tyrants, but which can be retrieved by the exercise of human reason and conscience. While the Folio may give us the same number of violations of Natural Law as the Quarto, and fewer affirmations of it, this does not mean that Natural Law is excluded from its orbit. At the same time, Nahum Tate's Lear is different from Shakespeare's two versions. Tate eliminated all the doubts, uncertainties, ambivalences, and, in the currently voguish word, 'Anxieties' of Shakespeare.
The little group of characters left huddling, exhausted, at the end of both versions of King Lear are like the audience in the position of Adam and Eve at the end of Milton's epic. They have witnessed something akin to the tragedy of the Fall of mankind in the evil perpetrated, and they have no refuge in the kind of platitudes and superstition which, for example, Gloucester had fallen back on. 'Speak what we feel, not what we ought to say', whoever says it (Albany in the Quarto, Edgar in the Folio), is a reproof to any glib or easy answer to the violations of Natural Law which we have witnessed: Lear's initial rejection of his loving daughter, Gloucester's failure to trust his son, the blinding of Gloucester, the hanging of Cordelia, and so on. Evil may be dead, but so is good. At the same time, like Adam and Eve, they know these sobered witnesses have the equipment for enlightened moral judgment, and realise also that they will be individually tested in their lonely attempts to follow virtue and shun vice. If they forget the lessons of Natural Law demonstrated by the actions they have witnessed and participated in, they may inadvertently fall themselves, or watch others fall into the blind and tyrannical ways of authority. They have reached a real but fragile point of moral awareness.
Readers and audiences occupy the same position, as, even more pertinently, do critics claiming any 'Authority' over such a play. The logic of King Lear, with its decisive celebration of virtue over vice and its equally decisive extinction of virtue, folds back to catch in its snare those who would impose any kind of positive law, literary or legal, over Natural Law. As in Utopia, no matter how splendid is the prospect of a world based on reason and conscience, that world may not be achievable, because human greed and power-seeking are too deeply entrenched in the existing structures of authority and power: but the effort of trying should still go on. In answer to those who debate whether King Lear is an optimistic or a pessimistic play, we might conclude that it is optimistic in so far as Shakespeare believes in the existence, innate in the hearts of human beings, and the supreme importance of, Natural Law; pessimistic in so far as he does not give indications that we may foresee its imminent implementation in the political and legal processes of human society, because those who have power to change the political world for the better, are the 'Hard-hearts' sealed against the promptings of Natural Law. If Shakespeare indeed has the transportability between cultures and times that have invited the term 'universality', the source lies not in his presentation of presumed verities, but his unsettling ambivalence about the possibility of ever arriving at such verities. His unerring focus on the central human activities of doing justice and injustice, and the problems each raises, is the central dynamic of all his plays and the reason they are applicable in some way to such diverse cultures. In this focus, the dialectic between Natural Law and positive law is fundamental, and King Lear is its powerful exposition.
1 This chapter draws freely from my previous publications, Innocent Victims: Poetic Injustice in Shakespearean Tragedy (second edition, Athlone Press, London, 1985), chapter 8, and 'King Lear and Philosophical Anarchism', English, 37 (1988), 181-200. I am not sure whether it is encouraging or dismaying that we go on discovering much later what we were trying to say on earlier occasions. In this case, research into Natural Law has clarified and simplified my thoughts on the play, and in no way reverses them. I also owe debts to John Danby, William Hazlitt, A. C. Bradley, G. Wilson Knight, and William Elton.
2 William Shakespeare, The Complete Works (Oxford, 1986) p. 1025. Quotations taken from this edition.
3 Edited by Gary Taylor and Michael Warren, Oxford Shakespeare Studies (Oxford, 1983).
4 Christopher Wortham, 'Ghostly Presences: Dr Faustus meets King Lear', Meridian, 14 (1995), 65-74.
5A Concise Law Dictionary, ed. P. G. Osborn (London, 1964).
6 John Donne's imagery is full of 'Anatomy', and it was, after all, the age of William Harvey's discovery of the circulation of blood. See Devon L. Hodges' fascinating little book, Renaissance Fictions of Anatomy (Amherst, 1985).
7 John D. Euce, 'Shakespeare and the Legal Process: four Essays', Virginia Law Review, 61 (1975), 390-433.
8 John Rawls, A Theory of Justice (Oxford, 1971). Rawls' book, while not dealing directly with Natural Law, has been a continuing influence behind this book.
9 Cotterell, The Politics of Jurisprudence, p. 143.1 should point out, in defence of quoting at third hand, that Cotterell's book is an excellent 'Critical Introduction' which works largely through quotations, many of which are useful here.
10 Cotterell, The Politics of Jurisprudence, p. 131, quoting Fuller.
11 My analysis differs markedly from John Danby's in Shakespeare 's Doctrine of Nature. A Study of King Lear' (London, 1949), although I readily admit my general indebtedness to this book. Although he does not ignore Natural Law, his main analysis deals with what I have called 'natural philosophy'.
12 Among the many accounts of this contentious issue, see J. C. Maxwell, 'The Technique of Invocation in King Lear', Modern Language Review, 45 (1950), 142-7; Barbara Everett, 'The New King Lear' in Critical Quarterly, 2 (1960), 325-9; and compare William Elton, King Lear and the Gods (San Marino, California, 1966).
13 It has sometimes been argued that one actor doubled for Cordelia and the Fool. I find it very implausible that these two characters were played by the same actor, since both roles are identified with specialist actors, a professional comedian and a boy actor respectively.
14 For the topicality of this issue in James I's reign, see Leah Marcus, Puzzling Shakespeare (above, chapter 7, note 18).
15 See Michael Goldman, Shakespeare and the Energies of Drama (Princeton, New Jersey, 1972), pp. 94ff., for a graphic description of the kind of beggar's persona Edgar asumes.
16 Edmond N. Cahn, The Sense of Injustice: An Anthropocentric View of Law (New York and London, 1949).
Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 626
Anderson, Linda. A Kind of Wild Justice: Revenge in Shakespeare's Comedies. Newark: University of Delaware Press, 1987, 195 p.
Explores the subject of justifiable revenge for "wrongs there is no law to remedy" in Shakespearean comedy.
Boris, Edna Zwick. Shakespeare 's English Kings, the People, and the Law: A Study in the Relationship between the Tudor Constitution and the English History Plays. Cranbury, N. J.: Associated University Presses, 1978, 261 p.
Investigates late sixteenth-century English constitutional law as it applies to Shakespeare's two historical tetralogies and King John.
Buckley, G. T. "Was Edmund Guilty of Capital Treason?" Shakespeare Quarterly 23, No. 1 (Winter 1972): 87-94.
Suggests that King Lear's Edmund may not have been guilty of the charges of high treason brought by Albany, according to English common law.
Carroll, William C. " 'The Form of Law': Ritual and Succession in Richard III." In True Rites and Maimed Rites:. Titual and Anti-Ritual in Shakespeare and His Age, edited by Linda Woodbridge and Edward Berry, pp. 203-19. University of Illinois Press, 1992.
Explores Richard Ill's transgression of the "form of law" in his pursuit of succession to the English throne in Richard HI.
Cerasano, S. P. " 'Haifa Dozen Dangerous Words.' " In Gloriana's Face: Women, Public and Private, in the English Renaissance, edited by S. P. Cerasano and Marion Wynne-Davies, pp. 167-83. Detroit, Mich.: Wayne State University Press, 1992.
Examines Hero's comic use of "honest slander" in her plot to encourage Benedick's and Beatrice's love in Much Ado About Nothing in relation to the historical adjudication of Renaissance slander cases.
Echeruo, Michael J. C. "Tantistry, the 'Due of Birth' and Macbeth's Sin." Shakespeare Quarterly 23, No. 4 (Fall 1972): 444-50.
Considers the argument that Macbeth's murder of Duncan was in some sense justified by Duncan's disregard of the law of tantistry—which states that a king's vacated throne, rather than being immediately succeeded to by his son, should be granted to the first ranking adult male of the royal family.
Graham, Kenneth J. E. " 'Without the form of justice': Plainness and the Performance of Love in King Lear." Shakespeare Quarterly 42, No. 4 (Winter 1991): 438-61.
Discusses the importance of "plainspeakers" in King Lear whose truthfulness contradicts the corruption of human judgment.
Hamill, Monica J. "Poetry, Law, and the Pursuit of Perfection: Portia's Role in The Merchant of Venice." Studies in English Literature 1500-1900 XVIII, No. 2 (Spring 1978): 229-43.
Focuses on the noble and complementary Renaissance pursuits of poetry and legislation as they are personified in the character of Portia.
Johnson, Lonnell E. "Shylock's Daniel: 'Justice More Than Thou Desir'st.' " CLA Journal XXXV, No. 3 (March 1992): 353-66.
Probes allusions to the Biblical figure of Daniel as they relate to the resolution of the legal plot in The Merchant of Venice.
Jordan, Constance. "Contract and Conscience in Cymbeline." Renaissance Drama XXV, New Series (1994): 33-58.
Analyzes contracts of family and state represented in Cymbeline.
Roth, Marty. " 'The Blood that Fury Breathed': The Shape of Justice in Aeschylus and Shakespeare." Comparative Literature Studies 29, No. 2 (1992): 141-56.
Studies the legal dimensions of revenge, justice, and social exclusion in Aeschylus's drama Eumenides and Shakespeare's The Merchant of Venice.
White, R. S. "King Lear and Philosophical Anarchism." English XXXVII, No. 159 (Autumn 1988): 181-200.
Examines the "anarchic" treatment of themes of authority and justice in King Lear.
Wilks, John S. "The Discourse of Reason: Justice and the Erroneous Conscience in Hamlet." Shakespeare Studies XVIII (1986): 117-44.
Comments on manifestations of providential justice and misaligned conscience in the figure of Hamlet.
Williams, George Walton. " 'With a little shuffling.' " In "Fanned and Winnowed Opinions": Shakespearean Essays Presented to Harold Jenkins, edited by John W. Mahon and Thomas A. Pendleton, pp. 151-59. London: Methuen, 1987.
Investigates the ambiguity of Claudius's succession in Hamlet as it hinges upon the metaphor of "shuffling"—an action that Walter argues only delays the inevitable retribution for Claudius's murder of his brother.
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