[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.

(V.iii.94-97)¹

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.

(III.ii.28-32)

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.

(III.ii.4-7)

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 . . .

(12-17)

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.

(132-35)

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

Notes

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).