-'N‘

F

 

 

 

SITY LI IBFIARI IE

:BIIIII II IIII % I I B 0’

 

 

 

 

 

 

 

 

 

 

                                                                              

31293005

 

I/ LIBRARY

Michigan State
University

 

 

 

This is to certify that the

dissertation entitled

"IN DANGER FOR THE BREACH OF LAW": TRIAL SCENES
IN SHAKESPEARE'S 2 HENRY VI, THE MERCHANT OF VENICE

 

AND MEASURE FOR MEASURE

 

presented by

Craig A. Bernthal

has been accepted towards fulfillment
of the requirements for

Ph.D English

 

degree in

 

m; c: M ~

I Major professor

Date 7 June 1988

MSU is an Affirmative Action/Equal Opportunity Institution 0-12771

.38. 4"‘3, .--- “J-

,4...-

  

MSU

LIBRARIES

 

    

 

RETURNING MATERIALS:
Place in book drop to
remove this checkout from
your record. FINES will
be charged if book is
returned after the date
stamped below.

 

 

"IN DANGER FOR THE BREACH OF LAW": TRIAL SCENES IN SHAKESPEARE'S
HENRY—V1. W AND W

BY

Craig A. Bernthal

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of
DOCTOR OF PHILOSOPHY
Department of English

1988

535 41075

./

ABSTRACT

"IN DANGER FOR THE BREACH OF LAW": TRIAL SCENES IN SHAKESPEARE‘S
2 HENRY VI THE MERCHANT OF VENICE AND MEASURE FOR MEASURE

 

 

BY

Craig A. Bernthal

This examination of trial scenes in 2 Henry VI, The Merchant of
m and Measure for Measure takes as its fundamental theoretical
assumption Levi-Strauss's proposition that all cultural artifacts are to be
read as symbolic resolutions of political and social contradictions. I take
"contradiction" to mean a seemingly irresolvable opposition of principles

within a particular ideology. Thus, in the Thump v. Horner trial of 2 Henry

 

H (I. iii and II. iii.) loyalty to the king and loyalty to the family. two
fundamental principles in the Tudor ideology of obedience. are brought into
conflict. In the trial scenes of the Cade rebellion. Cade's ideology of rebellion
is composed of the opposing elements of egalitarianism and hierarchy,
democracy and tyrannical monarchy; also in these scenes, the aristocratic
ideology of class distinction as well as the rebels‘ ideology of egalitarianism
is undermined by everyone's desire to occupy a higher class position.

The abstract principles which clash throughout 2 Henry VI, T_he
Merchant of Venice and Measure for Measure -- Old Law v. New Law, justice
v. Mercy, Equity v. Law, Natural Law v. Positive Law, The Rule of Law v. The
Arbitrary Use of Power. Due Process v. No Process -- are set forth in the
forensic oratory of characters who come close to embodying a particular

principle or position. By resolving or failing to resolve the clash of principles

within an ideology, or of competing ideologies and power groups, trials in
these plays function as critical generators of order or disorder in the body
politic and of comic closure or tragic reversal in drama. Trial is always a
major political event which operates either to Undermine or preserve the
social order. In 2 Henry VI, resolution of contending forces is not achieved.
and the disintegration of the trial process parallels the political
disintegration of Henry's kingdom. Though in the two comedies, m

Merchant of Venice and Measure for Measure a resolution of the forces

 

which threaten society is arguably achieved, it is a tentative and imperfect
resolution which blurs generic distinctions between the way trial scenes are
used in comedies and histories. Despite Shakespeare's shrewd appreciation
of the law's shortcomings, trial emerges in these plays as perhaps the
fundamental political activity for balancing forces which threaten to tear

society apart.

Copyright by
CRAIG A. BERNTHAL
I 988

To the memory of Dr. Donald Herbert Bernthal, 1923-1983

 

ACKNOWLEDGMENTS

As a graduate student and as the writer of this dissertation, I received
a great deal of intellectual stimulation, support and encouragment from
many people. Two people in particular helped me find my way through the
study of Shakespeare and this dissertation. Professor Philip McGuire. my
dissertation director, gave me unf lagging encouragement, candor, and
editorial assistance. When I became lost in the tangle of history, literature.
law and criticism out of which this dissertation has been fashioned, Philip
unfailing pointed me toward an article or in a direction which helped to
clarify my thinking. His energy, critical imagination, intellectual rigor. and
dedication to teaching will be a source of inspiration to me throughout my
career. Professor Douglas Peterson performed the invaluable service of
drawing my attention to critical methods and traditions which are often too
easily dismissed by practioners of post-new critical approaches and helped
me to understand Shakespeare's work as a whole. Doug's thought provoking
questions proved a continual source of motivation, and his love for
Shakespeare, a continual source of inspiration.

I would like to thank Professor Roger Meiners for his contribution to
my understanding of critical theory, his moral support. and his healthy
skepticism (about practically everything); Professor Donald Rosenberg, who
taught me a great deal about writing, thinking, and Renaissance literature in
the many courses I took from him; and Professor John Alford for introducing
me to the historical association of logic, rhetoric and law.

Professor Jay Ludwig. with whom I shared an office during my time as

a doctoral student, gave me valuable advice on practically everything, from

vi.

dissertation writing and teaching to child rearing; he showed a genuine
interest in and support of my efforts which often cheered me to the degree
that my self-doubt was transformed into a happy determination to get back
to work.

I would also like to acknowledge the intellectual contribution of
Professor Linda Levy Peck and the participants in her 1988 seminar at the
Folger Shakespeare Library, and the Michigan State University College of
Arts and Letters for helping to fund my participation in that seminar.

Librarian Mary )0 Tormey of the Michigan State University Library
went out of her way to help me in my research and to inform me of new
acquisitions which pertained to the dissertation.

My friends and fellow students, Margarida Rauen, Steve Berg, jon
Thorndike, and Rick Amidon were encouraging, supportive, enthusiastic. Ed
Hemphill, with whom I went through law school, "figured forth the perfect
pattern" of a married student with children, going through school while
supporting a family. Many times when the flu struck, and papers needed to
be graded -- and written -- his example did exactly what Sir Philip Sidney
said such examples were supposed to do. I received support, emotional and
otherwise, from my mother, Lucille Bernthal and joe and Barbara Parini.

Finally, my thanks go to my family. My wife Gail followed me out of
suburbia and the practice of law, into student housing. She believed I could
make a career switch, write a dissertation, and find a job. She managed the
household and took care of the children for long periods of time while I
immersed myself in graduate school and this dissertation. Without her
effort, there is no doubt that this dissertation would never have been
written. Sarah and Luke gave me their love and my two best reasons to

complete this project on schedule.

vii.

 

COPYRIGHT PERMISSION

Excerpts from Shakespeare's Histories: Mirrors of Tudor Policy by Lily
B. Campbell, San Marina: The Huntington Library, 1947, are reprinted with

the permission of the Henry E. Huntington Library.

Excerpts from Whigs and Hunters: The Origin of the Black Act by E. P.
Thompson are reprinted with permission of Pantheon Books, a Division of

Random House, Inc.

Excerpts from "Macbeth and Historiography," by David Norbrook in
Politics of Discourse: The Literature and History of Seventeenth—Century
mland, Berkeley: University of California Press, 1987 are reprinted with
permission of the University of California Press.

Excerpts from the Introduction of Order and Disorder in Early Modern
England by Anthony Fletcher and John Stevenson, eds, Cambridge, England:
Cambridge University Press, 1985 are reprinted with permission of the
Cambridge University Press.

Excerpts from "Puritanism and Social Control," by Margaret Spufford in
Order and Disorder in' Early Modern England, eds, Anthony Fletcher and John
Stevenson, Cambridge, England: Cambridge University Press, 1985 are
reprinted with permission of the Cambridge University Press.

Excerpts from R. H. Tawney's Introduction to A Discourse Upon Usury
by Thomas Wilson, New York: Kelley, 1963 are reprinted with permission of
Augustus M. Kelley, Publishers.

Excerpts from An Ungovernable People: The English and Their Law in
the Seventeenth and Eighteenth Centuries, by john Brewer and John Styles,

London: Hutchinson University Library, 1980 are reprinted with permission
of Century Hutchinson Ltd.

viii.

 

Excerpts from The Harmonies of the Merchant of Venice by Lawrence

Danson, Nevi' Haven: Yale University Press, 1978 are printed with per mission
of Yale University.

 

 

TABLE OF CONTENTS

INTRODUCTION

CHAPTER 1 Political Disintegration and the Trial Scenes of
2 Hegy VI

CHAPTER 2 Contexts of Play and Earnest: The Interpretation
of Shylock‘s Bond

CHAPTER 3 Staging Justice: The Trial Scenes of Measure for
Measure

NOTES

LIST OF WORKS CONSULTED

31

135

I70

247

287

INTRODUCTION

In Shakespeare's day, good government was equated with fair
adjudication, and the judicial system was the felt embodiment of official
authority. Though parliament might legislate and the monarch decree, for
most Englishmen, contact with the law came through the courts and court
officers: judges, JPs, constables and coroners. In The Boke Called the

Governour Thomas Elyot describes judges and magistrates as the

 

"members" of the body politic, necessary because the king, "one mortall
man," cannot "haue knowledge of all thynges done in a realme or large
dominion, and at one tyme, discusse all controusersies, refourme all
transgressions, and exploite al consultations."l The judges who rode the six
circuits of England, and the justices of the peace were the nerve net of the
body politic; they not only transmitted and enforced the laws and decrees of
the central government, but also reported to King and Counsel the people's
response to the law.

In 1565 Sir Thomas Smith also used the metaphor of the "body politic"
to describe the King‘s relationship to the judicial system. In De Republic;
Anglorum, he explained, "To be short, the prince is the life, the head and
the authority of all things that be done in the realm of England,“2 adding
"this head doth distribute his authority and power to the rest of the
members for the government of his realme, and the commonwealth of the
politique bodie of England. . . . in choosing and election of the chiefe officers

and magistrates and . . . in the administration of justice."3

Another metaphor sometimes used in describing the prince's
involvement with the judicial system was that of the king as a fountain.4 In
1642, William Hughes, in The Diversity of Courts and Their lurisdictions,
stated "the king is the fountain of justice."5 The metaphor was more
generally applied to the process of judicial lawmaking in Bacon‘s 1612 essay
"Of Judicature," where he uses it to describe the continuing effect of bad
judicial decisons: "One foul sentence doth more hurt than many foul
examples; for these do but corrupt the stream, the other corrupteth the
fountain." 6 Ironically, in the 1621 proceeding in Parliament to impeach Lord
Chancellor Bacon, Sir Robert Phelips, reporting from "the Committee of the

abuses in the Courts of Justice," turned the same metaphor against Bacon:

It‘s a cause of great weight. It concerns every man here. For if
the fountains be muddy, what will the streams be. If the great
dispenser of the king‘s conscience be corrupt, who can have any
courage to plead before him.7

The fiction implicit in Phelips‘ rhetorical questions is that the closer one gets
to the king, the purer the waters of justice. If the fountains be muddy, what
will the streams be? Bacon emphasized the purity of royal justice in a 1617
speech to the judges and justices of the peace of England, in which he notes

that "itinerant" justices, i.e., the assize judges who toured each circuit twice a
year, were more likely to be disinterested and free from local prejudice than

justices of the peace, who resided where they held court:

. . . the six circuits of England are like the four rivers in
Paradise, they go to water the whole kingdom, and pass through
the whole land to the distributing of justice for a man‘s life, his
goods and his freehold, and do justice from the greatest to the
groom: . . . where justice is local and not itinerant, there judges

3

are subject to be affected and infected with the conditions and
humours of the country where they are; but Justices itinerant in
their circuits, they preserve the laws pure, and are not led by
affections. . . this manner of Justices itinerants carrieth with it
the majesty of the King to the people and the love of the people
to the King; for the Judges in their circuits are sent a latere
Mir to feel the pulse of the subject and to cure his disease.8

Though the King was the fountain from which the judges, as vessels,
distributed justice throughout the body politic. God was the source of the
fountain. In his Argheipn William Lambarde flatly states: "It is the Office of
the King to deliver Jus_tice," 9 and at the end of the book he explains from

whom the delivery is being made:

Now therefore, as Card is highly to be thanked, that these
Elpwers of Justice are thus delivered forth, and Dispersed
abroad: 50 is flalso heartily to bee prayed unto, that those
which occupie the pla_ce of justice by them, may so behave
themselves as it may appeare, that they doe not exercise the
Elements of man, but of God himsellje, the chiefe lustice of the
World for so shall the good be succpured, and the Lvill
suppressed, so shall the Mites themselves be well acquitted,
so shall her Majestic be duly served, and Gpd himselije

honoured aright.10

Thus. the administration and enforcement of law was embedded in a
politico-theological framework in which trials and verdicts, in the most
mundane of cases, had national and cosmological significance. Poor kingship
could lead to unfair adjudication and unfair adjudication could undermine
the king. Likewise, corruption in the judicial system, for whatever reason,
could arouse the wrath of God, whose displeasure might then be visited on
the kingdom in rebellion and anarchy. Trials, therefore, did not merely

decide the fate of individual criminal defendants or settle the claims of civil

litigants, but provided microcosmic readings of the kingdom's health and its
conformance to cosmic patterns of order.

The fairness with which a trial was conducted indicated as much about
the health of the body politic as the result. The ethical foundation of trial
rested on principles of due process and the "rule of law," the conviction that
judicial proceedings would be conducted by a set of rules, known
beforehand, which bound all participants. In his History of the World,
Raleigh distinguished monarchy from tyranny solely on the basis of the

manner in which judges administered the law:

The most ancient, most generall, and most approved [form of
government] was the Government of one, ruling by just Lawes,
called Monarchy; to which Tyranny is opposed, being also a sole
and absolute Rule, exercised according to the will of the
Commander, without respect or observation of the Lawes of God
or Men. For a lawful Prince or Magistrate (saith Aristotle) is the
Keeper of Right and Equity; and of this condition ought every
magistrate to be, according to the rule of God's word. judges
and Officers shalt thou make thee in thy cities and these shall
ju_dgp. 11

The recent work of social historians such as J. A. Sharpe, John Brewer,
John Styles, J. S. Cockb urn, John Stevenson, Anthony Fletcher, and E. P.

Thompson 12

shows that the ideal of justice and the rule of law described by
Bacon, Raleigh, Lambarde and Elyot was not just the possession of an
educated elite, but was widely held, and that it was the people's contact with
the judicial system which helped to spread the ideal. Fletcher and Stevenson
state that "By 1600, even more certainly by 1700, the idea of a rule of law
was central to men's understanding of what gave the English political system

its distinctiveness."l3 Brewer and Styles elaborate:

It was in the courtroom or, at least, in the presence of the
justice of the peace and his clerk, that men were most aware of
the powers that were wielded over them. Good governance was
equated with justice, and the fair dispensation of the law with
good government: in this sense ‘the rule of law' was no empty
phrase.

Indeed, the notion of 'the rule of law' was central to
seventeenth and eighteenth-century Englishmen's
understanding of what was both special and laudable about
their political system. It was a shibboleth of English politics
that English law was the birthright of every citizen who, unlike
many of his European counterparts, was subject not to the whim
of a capricious individual but to a set of prescriptions that
bound all members of the polity. Such a characterization of the
English 'rule of law' will not, of course, pass muster as an
accurate description of the modus operandi of the legal process,
but it did serve as an idealization, a potent 'fiction', to use
Edmund Morgan's term, which commanded widespread assent
from both patricians and plebeians.14

That this "potent fiction" operated in England before 1600 is evident
from the writers whom I have already quoted. The list could be extended.
The ideals of the rule of law. due process, trial by jury and habeas corpus
were developed during the Middle Ages in the three centuries following the
signing of Magna Carta in 1215;15 they occur as populist ideals in the
written grievances submitted by Jack Cade and his followers to Henry VI.16
and are affirmed throughout the Tudor chronicles of Camden, Stow, Hall and
Holinshed.17 The formulation of the ideal -- and its frequent lack of
fulfillment -- is one of Shakespeare's major subjects from the very beginning
of his career, occuring implicitly in the story of Egeon in The Comedy of

Errors , and as a central the me in Shakespeare's first tetralogy of history

plays. From the Comedy of Errors to Henry VIII, Shakespeare presents

thirty-rive trial scenes -- and several Other scenes in which lack of trial is of

central significance. For Shakespeare the fairness of an accused's trial -- or
the failure to even give the accused a trial -- becomes one of the major
diagnostic tests in assessing the health of the body politic; and the trial
scene, as dramaturgic device, puts the pulse of the body politic before the
audience.

Although I will be focusing mainly on the scenes in Shakespeare's
plays where a trial actually occurs, the ideal of fair trial and the rule of law
is often most pointedly illustrated in scenes where trials are prevented. In
Richard III, Clarence, imprisoned and awaiting his treason trial, confronts
the two men that his brother Richard has sent to murder him. Clarence‘s
address to the two murderers is perhaps the most powerful speech by any
of Shakespeare's characters on the political, moral and theological
significance of trial to the Elizabethans: '

Are you drawn forth among a world of men
To slay the innocent? What is my offense?
Where is the evidence that doth accuse me?
What lawful quest have given their verdict up
Unto the frowning judge? or who pronounced
The bitter sentence of poor Clarence‘ death
Before I be convict by course of law?

To threaten me with death is most unlawful. . . .
Erroneous vassals! the great King of Kings
Hath in the table of his law commanded

That thou shalt do no murder. Will you then
Spurn at his edict and fulfill a man’s?

Take heed; for he holds vengeance in his hand
To hurl upon their heads that break his law.
(1. iv. 176-82; 190-5)

When the murderers reply that Clarence himself is guilty of murder

and treason for the slaying of Prince Edward, the son of Henry VI, Clarence
acknowledges his “ill deed," and mistakenly believing that his brother, King
Edward, has sent the murderers, argues that the Yorkist King is as guilty of
Lancaster blood as he. There is no need for the murderers to avenge the
death of Prince Edward by murdering Clarence, for if God seeks vengeance, it

will occur through a kind of heavenly "due process":

If God will be avenged for the deed

0, know you yet he doth it publicly!

Take not the quarrel from his pow'rful arm.

He needs no indirect or lawless course

To cut off those that have offended him. (1. iv. 210-14)

The official Tudor line was that even tyrannous proceedings, though
sinful, were a tool of God for the chastisement of his subjects. This, however,
did not excuse those who committed tyrannical acts. Though God sometimes
allowed murder and injustice to occur, they were sins just the same.
Clarence's assertion that God could accomplish his purposes without human
resort to an "indirect or lawless course" was also part of the Tudor position.

. Thus, violating the due course of human law also violated divine law.

In Shakespeare's plays due process and the rule of law are ideals
cherished by commoners as well as the nobility. When Suffolk murders
Duke Humphrey of Gloucester to prevent Humphrey's treason trial,
Parliament demands Suffolk's head. When Richard III executes Hastings
without a trial, he is forced to find some excuse to the Mayor of London

which anticipates the Mayor's objection that due process was violated:

Richard: What? think you we are Turks or infidels?
Or that we would, against the form of law,
Proceed thus rashly in the villain‘s death,

8

But that the extreme peril of the case,
The peace of England, and our person's safety,
Enforc'd us to this execution? (III. v. 41-6)

Richard's exception, of course, threatens to swallow the rule, as
"national security" exceptions generally do, and this is not lost on the
commoners who, though they dare not speak against Richard, are certainly
not fooled by Richard's argument. The scrivener, who finishes Hastings
indictment AIM Hastings has been executed, speaks for the commoners who
at least in their thoughts judge how far Richard III has departed from
accepted standards of due process; in the time it has taken the scrivener
merely to write the indictment -- the first step in the criminal process -- the

last step has already been completed:

Here is the indictment of the good Lord Hastings
Which in a set hand fairly is engrossed

That it may be to-day read o'er in Paul's.

And mark how well the sequel hangs together:
Eleven hours I have spent to write it over.

For yesternight by Catesby was it sent me;

The precedent was full as long a doing;

And yet within these five hours Hastings lived,
Untainted, unexamined, free, at liberty.

Here's a good world the while! Who is so gross
That cannot see this palpable device?

Yet who's so bold but says he sees it not?

Bad is the world, and all will come to nought
When such ill dealing must be seen in thought.

(W III.Vi. 1-14)

Thus, the ideal of justice set forth in theory by Elyot, Bacon, Raleigh,
Lambarde, and many lesser writers, finds dramatic embodiment in
Shakespeare's plays. The repeated lack of fulfillment of that ideal is also

found in Shakespeare's plays, and before Shakespeare is labelled a

conservative spokeman. for the Elizabethan judicial establishment,18 under
which censorship thrived and the treason trial became a national past-time,
it is well to remember the speech of the scrivener in Richard III: Who is so
bold to say he sees pp; the performance of justice?

III III [I

In Richard III Shakespeare demonstrates how power is used by

 

Richard to imppsefiction on an audience. Though the people of England may

 

not believe Richard's f iction, they have no power to deny it. They are forced
into the role of believers. Conversely, fiction can be used to examine power
and the fictions used to legitimate power. That is certainly Shakespeare's
project in-Richard 111. It is possible that in many of his trial scenes,
Shakespeare puts the fictions of his own time on stage -- fictions which could
often not be seen, acknowledged or explored outside of the theatre.
Shakespeare's trial scenes reflect the tensions and contradictions, breakdown
points and dilemmas of his age, and show trial to be a potent human activity
for creating or resolving conflict and imposing or dispelling fiction. The trial
scenes in Shakespeare's dramas are analogous to his plays within plays; they
invite the audience to judge the process of judgment itself. The purpose of
this introduction is to spread, in rough fashion, the canvas on which I intend
to examine the trial scenes in several of Shakespeare's plays. My aim is to
explore Shakespeare's trial scenes within the ideological and socio-economic
context of his times -- to examine the judicial reaction of Shakespeare's age
to the contending forces of the time and the way in which this response
influenced (and more speculatively was influenced by) Shakespeare's drama.
The judicial system was perhaps the most potent tool at the disposal
of the Tudor and Stuart monarchs for exerting social control -- for imposing

order of a type which was most favorable to them. The various reactions

10

against this order, from riot and rebellion to the odd acquittal by a stubborn
jury of a defendant accused of treason. were branded as "disorder" by the
government. But as Jack Cade suggests in 2 Henry VI when he tells the
rebels, “then are we in order when we are most out of order" (IV. ii. 174-5),
binary oppositions have a way of f lip-f lopping as one's point of observation
shifts. Order for the Elizabethan merchant trying to export grain was not the
same thing it was for the hungry people on the dock trying to stop the ship
from leaving port. During times of famine in the 15903, the Elizabethan
government often took administrative and judicial action to stop the export
of grain and to distribute food to the poor. When court cases arose out of
conflicts between merchants, the poor and the government, the judge was
charged with applying Elizabethan concepts of order -- set forth in The Book
Mgr; 19 -- to decide the case. Though various ideological formations
and concepts of order collided in court and sometimes on stage in the drama

of a trial scene, the collision occured within another ideological framework of

 

nearly universal acceptance: that of due process and the rule of law. Thus,
the operation of the judicial system, and Shakespeare's dramatization of trial
can only be understood within the context of contemporary ideologies of
order, some of which conflicted with others.

The dominant ideology during the Elizabethan period was most
notably described by E. M. W. Tillyard, who in studying Shakespeare's
histories, “concluded that the pictures of civil war and disorder they present
had no meaning apart from a background of order to judge them by."20 So
was born The Elizabethan World Picture, that seminal attempt to establish a
stable point from which the unstable worlds of Shakespeare's plays and of
Renaissance society could be examined. The current "new historicist"

approach emphasizes the converse of Tillyard‘s strategy: that the

ll

preoccupation with order displayed in Shakespeare‘s plays has no meaning
apart from a background of disorder to judge itby. At its worst, this results
in a critical binary opposition of Tillyardian “idealists” on one hand and new
historicist "power people" on the other, each exaggerating the others' position
and debating whether to crack the literary egg from the larger or smaller
end. To be fair to Tillyard, he did not claim that the view of cosmic order he
described was "shared by all"21 members of Elizabethan society, nor did he
claim to have described "a single political vision . . . identical to that . . . held
by the entire literate class or indeed the entire population.“22 Tillyard
claimed to have described a view that “was the possession only of the more
learned part of society,"23 though perhaps even in this he was claiming too
much and too little. The claim is too broad because the shift to empiricism --
the new philosophy that ”calls all in doubt" -- had begun even in
Shakespeare's day, and too narrow, because the view described by Tillyard
may not have been limited to a "more learned segment of society" (whatever
limitation that phrase may have), but actually may have been rather more
widely held. To argue that Tillyard presented an utterly "monological View"
of English society, is an exaggeration resulting as much from the academic
antinomies of our own time as from the deficiencies of Tillyard's view.
Though the tensions, contradictions, conflicting cosmologies and political
views of Shakespeare‘s age are far more complicated than Tillyard's
description indicates, the "picture" presented by Tillyard is a major
ingredient in the ideological stew of Tudor and Stuart England. Thus, while
Fletcher and Stevenson, for instance, recognize that different views of
"order“ existed in England during the sixteenth and seventeenth centuries,
they also recognize the elaborate enshrinement of social and cosmological

inequality described by Tillyard continued to be very influential:

12

The most striking feature of this [Elizabethan and Stuart]
society, recognised by these writers [William Harrison. Sir
Thomas Wilson, Gregory King] and others was social inequality.
There was a broad consensus among contemporaries about the
pattern of inequality, though there was room for emphasis on
different criteria of status. When Oliver Cromwell told
parliament in 1654 that the distinctions between a nobleman, a
gentleman and a yeoman were 'a good interest and a great one'
he was expounding an assumption so fundamental that in more
settled times there was no need for it to be said.

What gave abiding strength to these perceptions of the
so_c_ial order was that they were based upon an old cosmology in
which the concepts of a 'Great Chain of Being‘ and of a 'body
politic' held sway. While these concepts prevailed, an ideal of
harmony, of society as a living organism in which each man and
woman had an allotted role, underpinned the complex reality of
a system of hierarchical relationshipa. These relationships were

mediated by the vertical ties of patronage and clientage and
softened by additional horizontal ties of kin and neighbourhood.
The nobility's exercise of 'good lordship' was still evident in the
dealings with their tenants of some great f amilies, like the
Percies and Stanleys, between 1500 and 1640. . .24

Despite my reservations about the ”new historicist” interpretation of
Tillyard. I find the new historicist emphasis on the complexity of
Elizabethan attitudes toward authority and order convincing. Jonathan
Dollimore is certainly correct when he states "Tlllyard's world picture
can. . . be seen as in some respects a dominant ideology, in others a residual
one. . . . Culture is act by any stretch of the Imagination -— not even the
literary imagination -- a unity. "25 The social cauldron of early modern
England, over which the Tudor and Stuart monarchs precariously perched,
displays to the historian and literary critic a brew of tantalizing complexity

and mobility. The main ingredients in the social pot form a long list,

13

including at least: the domestic Catholic - Protestant opposition and the
foreign Catholic threat; Elizabeth‘s shaky and challenged claim to the throne;
the pull between neo-feudalism and nationalism; economic crises connected
to inflation, rising population: enclosure, stoppages in the cloth trade, and
consistantly inadequate agricultural production punctuated sporadically by
disastrous harvests; the rise of Puritanism; a "revolution" in education and
literacy; collision between scholastic humanism and empiricism; massive
changes in land ownership and the composition of social "classes." Of course,
simply to list the elements of social conflict gives no idea of their dynamic
interplay or synergistic effects. Each of these elements was in some way
connected to the others, acting and being acted upon, in a complex network
of social interchange which must have given even the most securely situated
people in Elizabethan and Jacobean England some queasy moments.
Lawrence Stone suggests that the sixteenth and seventeenth century
preoccupation with order was actually a defense against the pervasive chaos

of the time:

In the late sixteenth and early seventeenth centuries. . . this
almost hysterical demand for order at all costs was caused by a
collapse of most of the props of the medieval world picture.
The unified dogma and organisation of the Catholic church
found itself challenged by a number of rival creeds and
instititutional structures. . . the reliance upon the intellectual
authority of the Ancients was threatened by new scientific
discoveries. Moreover in England there occurred a phase of
unprecedented social and geographical mobility which at the
higher levels transformed the composition and size of the
gentry and professional classes, and at the lower levels tore
hundred of thousands of individuals loose from their traditional

kinship and neighbourhood backgrounds.26

14

The tensions produced by the social dynamics of Elizabethan and
Jacobean England often manifested themselves on a grand scale in rebellion,
riot, and mass protest. and more subtly in commerical and property disputes
and crime. J. P. Sommerville notes that the three main causes of rebellion
during the Tudor period were faction, religious division and poverty;27 but
one could as well say that these were the sources of all disorder. These
manifestations of social unrest in turn could lead to judicial proceedings.
However long the chain of events, the antinomies and conflicts of
Shakespeare's day produced and were embodied in trial. Shakespeare‘s
dramatic representations of trial not only hold a mirror up to nature -- they
depict a mirror already in place, in which a particular case involving a few
individuals could capture the forces at work in an entire society.

As an example of the way a national problem eventually resulted in
trials, which in turn became the subject matter of Shakespeare‘s plays (as,
for instance, 2 Henry VI and Measure ljor Measure) consider the effect on
Tudor England of inf lation, overpopulation and inadequate agricultural
production. During the sixteenth-century, prices in England rose over
300%.28 The rise was partly caused by debase ment of the coinage under
Henry VIII, and perhaps exacerbated by the inflow of bullion into Europe as
a whole via Spain. The main reason for the inflation, however, was the
failure of English agricultural production to keep pace with population
growth. In addition to the steady rise of food prices throughout the century,
there were massive fluctuations in price. As Penry Williams notes: . .
average grain prices from 1596 to 1600 . . . were more than 50 per cent
higher than for 1591-5 and nearly 50 per cent higher for the following
quinquenniu m."29

Inflation hastened the death of traditional relationships between

15

landlords and tenants. The paternal ethic of "good lordship" often cracked

under the pressure to make the land pay: rents were raised and land was

enclosed, by both owners and tenants, in the interest of more efficient grain

production or to pasture sheep. Those at the bottom of the rural social scale

were often evicted, and large bands of rural "vagabonds" roamed the

countryside or flocked into the cities. Their ranks were increased by

ex-retainers of the great households, numbers of ex-servicemen, and those

too old or handicapped to work.

Families on fixed incomes found their standard of living
threatened; and as a growing population entered the
labour-market the real wages of urban workers were reduced
by almost 50 per cent over the century. With food-prices and
population rising, rents also increased; and although substantial
farmers producing for the market could sustain the high burden
of rent and still profit from rising prices, the subsistence farmer
-- the cottager or small husbandman -- was often forced off the
land in the competition for holdings. Growing sheep flocks, the
property of landlords and richer f armers, encroached upon the
common pastures, squeezing out the animals of the poorer
tenants; and some landowners, especially in the midlands,
converted arable land to pasture in order to feed their beasts.
Unfortunately, the expansion of industry was insufficient
to provide employment for the surplus population. The market
for cloth was subject to volatile movements of demand. When
sales went well it was easy for the Clothiers, who needed little
fixed capital, to expand their Operations; when demand
slackened the extra labour could easily be laid off. . . . The size
of the unemployed and landless population cannot be estimated,
but it was large enough to frighten property owners and to
shock moralists. William Lambarde, speaking in 1594, was
conscious of the connection between population and poverty:
younger marriages and the absence of plague had, he said,
brought more pe0ple into the world and created a new class of

poor.30

16

John Pound also emphasizes the magnitude of the problem of poverty,
and rather tentatively provides an estimate of the proportion of poor in the

population:

Poverty was rife in England throughout the whole of the
sixteenth-century and beyond. It has been estimated that
between one-quarter and one-third of the population of most
English towns were below the status of wage-earner, and at any
moment their numbers were liable to be swelled by a slump in
one of the major industries.31

Historians have generally divided the poor into two categories: those
who would work if given the chance and those "deter mined to avoid it at all
costs.“ The later group, according to John Pound, ”contained a whole host of
individuals, ranging from the professional beggar on the one hand to the
thief and murderer on the other."32 Elizabethan constables and parish
officials did not always make adequate distinctions between these two
groups. The presence of this large groups of unemployed people was a
constant source of anxiety and aggravation to the more established members
of society, who had to administer the Elizabethan Poor Laws in an attempt to
buy order by amerliorating the misery of the poor.

During times of bad harvest, such as occurred in 1586 and 1595-1597,
grain prices sky-rocketed. people went hungry. and there were food riots.
"There were between 1586 and 1631 at least forty riots, as well as two
attempted insurrections and a considerable number of other riots and
insurrections planned or ru mored, all of which were related in some way to
the state of the food market."33 As Buchanan Sharp has shown, most of
these "riots" were led by rural artisans, people of the kind Shakespeare

includes in his portrayal of the Cade rebellion. Food riots brought

17

‘ participants within the greatly expanded Elizabethan law of treason. Most
rioters and rebels were quite wisely set free, as we shall see in the Cade
episode of 2 Henry VI. Frequently, however, the ring-leaders suffered the
penalty for treason and were publicly hung, out down while still alive,
castrated, disemboweled and drawn and quartered.

Poverty also led to subtler kinds of crime, such as Shakespeare
examines in Measure for Measure. For instance, poverty delayed or made
marriage impossible for a large number of women. Poor women, whose
families could not afford to pay dowries, often could not find a husband.
This, of course, did not stop the sexual activity of these women and their
partners. Historians have found that the numbers of cases of bastardry and
incontinency brought to court correlated directly, in Shakespeare's day, with

periods of economic crisis:

The main evidence for the escalating number of moral
cases presented in the courts has been given by Keith
Wrightson, who shows that nearly one-third of the cases of
bastardy presented between 1570-1699 for Terling in Essex
were brought between 1597 and 1607, and another notable
group between 1613 and 1616. He calls this dramatic upswing
'an astonishing and, until recently, unsuspected aspect of the
history of the period.‘ Bastardy was very much an offence of
the poor and obscure and even bridal pregnancy was
increasingly presented for the poor. Martin Ingram, in his
thesis on Ecclesiastical Justice in Wiltshire, 1600- 1640' has
done a very subtle analysis of presentments in the ecclesiastical
courts. He shows that, in two parishes in the increasingly
impoverished, populous and partly industrialized area of the
county, 60 per cent and 75 per cent of the cases in which
pre-nuptial pregnancy can be deduced from the parish registers
ended up by being presented in the ecclesiastical courts.

But in another pair of parishes where population
pressure was far less great, on the sheep-corn uplands, either
no cases or only 7 per cent of cases of pre-nuptial pregnancy

18

were presented. He, too, demonstrates that presentment for
fornication or conception out of wedlock was far more likely if

the sinners were poor. The suggpslipn, vary rgasonably, is that

tio essure ' ediatel after
' uctio t w w t evi a e officials were

afraid of the cost of bastards ijalling oh the rates. This financial

lever added, as it always so wonderfully does, an additional
' e a e o t e of 'c'

. 4 (underlining
added)

Thus, for financial and economic reasons, there was what is often
described as a "Puritan" moral crackdown at the turn of the sixteenth-
century which resulted in a flood of cases to the ecclesiastical courts.
Incontinency and bastardry were punished by local officials in an attempt to
keep parish welfare expenditures under control. Shakespeare transfers this
situation almost bodily to the stage in W where Claudio
and Julietta delay their marriage (or at least its public proclamation) so that
Julietta can obtain a dowry from her friends -- and are convicted by Angelo
for incontinence when Julietta's pregnancy becomes apparent. Lucio has
attempted to escape his financial responsibilities as the father of Kate
Keep-down's child -- and is eventually made to pay. And of course Angelo
himself has refused to marry Marianna because her dowry has failed. The
complex antinomie between sexual morality and poverty, as mirrored in the
trials of the day, is again mirrored in the dramatized trial in Act V of gig
mph That Ends Well. featuring Diana's contrived breach of promise suit
against Bertram, Helena's claim that Bertram is the father of her child, and
the King's promise to help Diana by providing her with a dowry. Both Diana
and Helena are having trouble finding husbands, Helena because her lack of
social status and Diana because of her poverty.

Though the effect of poverty as a cause of "social crime"35 is a

19

pervasive subtext in many of Shakespeare's plays, the most sensational
aspect of the Tudor/Stuart judicial environment was the big treason trial.
Treason trials could arise from all three major sources of unrest in England:
poverty, faction and religious dispute. Popular riot and uprising (i.e., mass
protest) had come within the scope of treason statutes during the reign of
Henry VIII. In addition to treason trials arising from popular protest, two
other contemporary categories of treason trials were available to
Shakespeare for use as models: (1) treason trials resulting directly from the
Reformation antagonism between Protestant monarchs and Catholic subjects,
or in the case of Mary Tudor, a Catholic monarch and her Protestant sub jects,
and (2) treasons trials in which the defendant's personal ambition was
alleged, by the crown, to be the motivating factor. Personal ambition and
religous affiliation sometimes went hand in hand, as Shakespeare
dramatizes in his story of Wolsley; and a rebellion motivated at least partly
by religious fervor, such as the Wyatt Rebellion during the time of Mary, or
the Northern Rising of Elizabeth's reign, could bring participants afoul of both
the 1352 treason statute against making war upon the king in his realm, and
the more recent Reformation treason statutes aimed at securing the monarch
as head of the church in England.

Nothing illustrates the fears of the Tudor monarchs and their own
sense of English instability better than the proliferation of treason legislation

and trials from the ascendancy of Henry VIII to the end of Elizabeth's reign.

Between 1485 and 1603, according to one calculation, there
were no fewer than sixty-eight treason statutes enacted, though
there had been less than ten in the period 1352-1485. This
proliferation is explained by the fact that many Tudor acts were
the by-product of royal concern over the succession to the
crown and the king's ecclesiastical supremacy, problems

20

previous kings did not face in the same form, and also by the
reluctance of the Tudor monarchs to put their trust in judicial

construction based on existing statutes.3

The breadth of interpretation given to treason statutes was even
more significant than the volume and breadth of legislation passed. During
the reign of Henry VIII, judges sometimes determined that treason laws did
not apply to a particular defendant. Especially notorious was the case of
Elizabeth Barton, the "Nun of Kent," who predicted that ii Henry VIII
married Anne Boleyn, he would die. Though in 1533 Henry sought her
conviction for treason, the conditional form of her declaration saved it,
according to her judges, from being a treasonous statement, and she was
acquitted by the special council Henry had assembled to convict her.
Subsequent legislation made even such conditional statements treasonous,
and the Barton case was an important factor in convincing the Tudors that
broad judicial interpretation of treason statutes could not be counted upon.
In response the Tudors legislated massively against treason. In addition,
during Elizabeth's reign, judges almost uniformly gave these statutes broad

construction, expanding the scope of the crime even further:

Judges' declarations as to what was and what was not treason
seem in this period to have gone almost entirely in favour of
the monarch. Another significant development in this field was
that the most celebrated of legal interpreters was not a judge,
but Edward Coke who was attorney-general. His success in
getting various popular riots and assemblies classified as
treason brought the Tudor era to a close with the establishment
of a markedly royal interpretation of the scope of treason-7’7

The effect of this was that, by the end of Elizabeth's reign, if the

government wanted an individual dead, it had a virtually infallible legal

21

instrument for achieving its aim. The procedural disadvantages faced by
defendants, together with the breadth of the offense, made escape from
execution nearly impossible, and the treason trial was used by the
government extensively. Lacey Baldwin Smith relates that in 1557, Etienne
Perlin, a Frenchman who visited England "reported in his journal the
existence of a macabre jest: in order to achieve gentle status, an English
family had to have at least one head impaled upon London bridge."38 Some
prominent families lost members on a regular basis, the Howards, perhaps,
being the most extreme example: Thomas Howard, the third Duke of Norfolk,
had barely escaped execution in 1547 due to the fortuitous event that Henry .
VIII died on January 28, the day Thomas was to be executed. His son Henry,
the Earl of Surrey, was not so lucky, and was executed for treason a few days
before his father. Thomas's nieces, Anne Boleyn and Catherine Howard were
both executed for treason, and in 1571 his grandson, Thomas Howard, the
fourth Duke of Norfolk was tried and executed for his involvement in the
Ridolfi plot. In 1554, in one of the most remarkable treason trials of
sixteenth-century England, Nicholas Throck morton, after brilliantly
defending himself, was acquitted of treason (and his jurors fined and jailed
for several months when they refused to reverse their verdict), but in 1603
his son-in-law Sir Walter Raleigh, in perhaps the most sensational treason
trial of the seventeenth-century, was not so fortunate. In additional to the
huge legacy of treason trials produced during the reigns of Henry VIII and
Mary, Shakespeare had a great volume of celebrated contemporary treason
trials to use as models. The most prominent would include the trials of
Edmund Campion and several other Jesuits among the Catholics prosecuted
under the 1581 treason statute (1581); of Mary Stuart, Queen of Scots
(1586); Philip FitzHoward, the Earl of Arundel (1589); John Udall (1590);

22

Robert Devereux, the Earl of Essex (1600); Sir Walter Raleigh (1603) and the
Gunpowder Plotters (1605).

From the twentieth-century view. the hallmark of these trials was the
virtual impossibility for the defendant of getting an acquittal. The
procedural disadvantages faced by these defendants were almost
insurmountable. They were denied legal counsel or the use of law books
while they were In court, though they had to face from three to four
experienced prosecutors. Before trial they had frequently undergone long
periods of exhausting imprisonment. “The conditions under which treason
suspects lived in prison varied considerably but in general they were harsh
even by the standards of the times. The intention was quite clear to both
officials and captive: to weaken the prisoner's body and thus his resolution,
so that incriminating evidence and information about fellow conspirators or
overt rebels should be forthcoming?” As if they were not debilitated
enough. defendants were generally required to slang during the course of
their trial. They were not allowed to take notes during the trial and were
given no written copies of the indictment, but were forced to remember the
charges; neither were they inf or med of the particular statute or statutes
under which the crown was bringing its charges, which, considering the
bewildering array of Tudor treason statutes, made evaluation of the
sufficiency of the indictment very difficult. Testimony against the accused
was generally in the form of written depositions or confessions, giving the
defendant no opportunity to cross-examine the witnesses against him, and at
the same time, defendants were often forbidden to produce witnesses in
their own behalf. Jurors were often lectured beforehand by the prosecutors
and judges about the correct verdict to reach. If , through a miraculous

display of stamina. intelligence. memory and pugnacity, the defendant

23

obtained an acquittal, he was often tried again!
John Bellamy, in W cautions against
employing a twentieth-century standard of fairness to the treason cases of

the sixteenth-century:

As to the fairness of Tudor treason trials, if there can be any
value in seeking to judge such a quality four centuries after, we
can only say that the procedure was weighted against the
accused, but not to such a degree that Tudor trial methods
seemed much more onerous to contemporaries than had later
medieval treason trials to the men of those centuries.40

This statement is more sanguine than it ought to be. leaving open, as it
does, the public attitude toward treason trials in the late middle ages.
Bellamy notes that from 1532 to 1540, 32 out of 600 defendants were
acquited of treason,41 but he provides no statistics for the reign of Elizabeth
and from the breadth of legislation, the growing experience of prosecmors in
how to conduct a treason trial and the power of Edward Coke, the already
small acquittal rate could well have been a great deal lower.

Furthermore. censorship. the increase in the scope of treason
legislation, the breadth of interpretation of the crime, and the numbers of
people accused of treason make it unlikely that much opposition to the
treason laws or their enforcement would ever have been printed in England.
There was criticism of the procedure in treason trials. but it came from those
with little left to lose, i. e., the defendants themselves. or others sufficiently
out of harm's way to make a criticism.

The unfairness of the procedure was certainly not lost on those
accused. Defendants such as Lord Seymour (1549), the Duke of Somerset
(1551 ), the Duke of Norfolk (1571) and most f amously. Sir Walter Raleigh,

24

fruitlessly demanded that they be brought face to face with the witnesses
against them. Though some of the Elizabethan treason laws required that
the crown produce at least two witnesses against the accused many other
treason laws (such as the statute of 13 52) did not. Since the Queen's counsel
seldom made it clear to the defendant which statute they were proceeding
under, the prosecutors easily evaded witness requirements. In their trials,
Udall, Fitzwilliams and Nicholas Throck morton petitioned the court to hear
defense witnesses , but they were refused, eliciting the comment by

Throck morton to the judges: “Why be ye not so well contented to hear truth
from me as untruth against me?"42 The denial of counsel to those accused
of treason “caused more criticism than nearly every other feature of the
English criminal trial."43 The elder Thomas Wyatt, Edmund Campion and
John Udall all requested and were denied counsel. The Jesuit Robert Persons,
writing from the safety of the continent, gave a cogent summation of the

disadvantages faced by a layman in court:

How is it possible . . . that such a Man especially if he be bashful
and unlearned, in so short a time as there is alotted him for
answering for his Life without the help of a Lawyer, Proctor or
other Man that may direct counsel, or assist him in such an
agony; how can he see all the parts of points that may be
alleged for his defence being never so Innocent? 4‘4

About half of Shakespeare's trial scenes deal with charges of treason.
Most of Shakespeare's trial scenes feature defendants of high social status
motivated by personal ambition: courtiers like Bushy, Bagot, Green and
Aumerle in W Cambridge, Scroop and Grey of Henry 2, or
magnates like Buckingham in Henry VIII, and clerics such as the Bishop of
Carlisle or Cardinal Wolsley.

25

Shakespeare seems to have been less concerned in his plays with the
actual basis for treason charges than with the honesty of the accusations and
the fairness of the trial. His trial scenes suggest an awareness of the gulf
between the ideal of due process and the actuality of Elizabethan and Stuart
practice which cannot be adequately consigned to a "political
unconsciousness." of the age. Duke Humphrey, in 2 Benny VI, comments on
the unfairness of the trial he thinks he will receive, and is murdered in
prison before he gets to trial. Bolingbroke begins to execute "traitors,"
without trial, even before he is crowned. The marriage of Othello and
Desdemona is affirmed in a trial, but Othello finds Desdemona guilty and
"executes" her outside of any formal process of adjudication. Queen
Katherine, in HM questions the authority of any English Court to
hear the divorce action of Henry, but is divorced just the same. Time and
again Shakespeare sets before his audience issues of procedural regularity
and fairness in adjudication. I do not believe that it is f arfetched to argue
that the "ill dealings" which could only "be seen in thought" by the scrivener
of mu have some connection with the ill dealings of Shakespeare's
own time, which, particularly in the case of treason trials, could be publicly
examined only with caution and at the distance provided by f ictionalization
and drama.

C] Cl C]
My initial plan in writing this dissertation was to examine trial
scenes in Shakespeare. That project proved to be too ambitious. Therefore, I
have limited this study to three plays: 2 Henry VI, Measure for Measure
and In; Mencnant of: Venig. I have selected these plays partly because two
of them, e c to e 'ce and Measure for Measure, contain

Shakespeare's two longest, and most intricate, trial scenes, and because ;

 

26

Henry VI and Measure for Measure are the two Shakespeare plays which
have the most trial scenes. But my main reason for selecting these plays is
that they very directly portray a process of central importance to all of
Shakespeare's trial scenes: the way in which a political system either
succeeds or fails in sustaining itself and society through the way it
administers the law. By resolving or failing to resolve the clash of
competing ideologies and power groups, trials in Shakespeare's plays are
shown to be critical generators of order or disorder in the body politic and of
comic closure or tragic reversal in drama. In extending this study. I would
plan to include an examination of at least four more plays: Henry VIII, A

Winter's Tale King Lear and Othello. Both Henry VIII and A Winter's Tale

 

 

deal with the special political situation, and strain on the rule of law, which
occurs when a King puts his foreign-born queen on trial. Both King Lear and
OM1_e_ll_o demonstrate how the absence of a functioning judicial system (in
Lear's disintegrating kingdom and in the war zone of Cyprus) is a major
ingredient in bringing about a tragic outcome.

A great deal has been written about Shakespeare and the law, and
there has been a significant body of work examining the trial scenes,
particularly those in Measure for Measure and The Merchant of Venice.
Most of this might be labelled "old historical" scholarship. It examined
questions such as the extent of Shakespeare‘s legal background, whether he
had his law correct, whether his trial scenes were authentic, Shakespeare's
relationship to the Inns of Court, whether he was writing for an audience
which included large numbers of lawyers, and the way in which Shakespeare
uses legal terminology. Much of this work was done by lawyers who had a
genuine passion for Shakespeare. Examples are Sir Dunbar Plunkett Barton's

Links Between Shakespeare and the Law Clarkson and Warren's The Law of

27

Property LIJ' Shakesnearinn and Enizabethan Drama, William Rushton's
Shakespeare a Lawyer and Lord Campbell's response, Shakespeare's Legal
W. More recent attempts to extend this kind of
scholarship are WM by George W.
Keeton and Shnkgsmane and the Lamers by 0. Hood Philips. These works
are valuable, however, I will be taking a very different approach in this
dissertation.

My main interest is to explore Shakespeare's trial scenes as artistic
endeavors that capture significant social concerns and conflicts; more
broadly, I am interested in the intersection of Shakespeare's society and his
trial scenes. It is only in recent years that the work of social historians --
that of Christopher Hill, E. P. Thompson, Lawrence Stone, and the students
they inspired -- has made such a study possible. The usefulness of social
history to students of literature has been recognized, and it is no longer
correct to say, as Ann Jennalie Cook did in 1981, that "the insights of the
historians are, by and large, not known to those working in Renaissance
drama."45 However, there is still a great deal to be learned about
Renaissance society and this work will continue to illuminate Shakespeare's
plays. It is still true that "modern researchers often miss obvious levels of
meaning because they are insufficienty aware of the society that so closely
interpenetrated the stage in Shakespeare's day "46 One major aim of this
dissertation is to use social history to make the levels of meaning in
Shakespeare‘s trial scenes more obvious.

In addition to the research of social historians, I will rely to some
extent on the theoretical work of Frederic Jameson (though I should make it
clear that if there is a political unconsciousness to be exhumed, I believe it is

mainly our own rather than Shakespeare‘s or his audience's) and several

28

writers in the "critical legal studies" movement, such as Mark Kelman,

Roberto Mangabeira Ungar and Duncan Kennedy,47 who have done

fascinating and controversial studies on the interpenetration of law,

adjudication and society, and the role of law in legitimating the use of force.
The two most central terms in this discourse are "trial" and "trial

scene.“ Both of these are "loaded" terms and bear some examination. "Trial"

is defined in Blanks Law Dictionary as:

A judicial examination, in accordance with law of the land, of a
cause, either civil or criminal, of the issues between the parties,
whether of law or fact, before a court that has proper
jurisdiction. 43

A complete explication of this definition would itself require a long
essay. The difficulty with applying such a definition to scenes in
Shakespeare's plays is that, whether an examination is "judicial" or whether
“the court‘s" jurisdiction is proper (i.e., whether the court has power to hear
the case at all) are often the central issues Shakespeare presents to his
audience for consideration. In application to Shakespeare, the Blnnk‘n
definition is not functional and begs several questions. Shakespeare's trial
scenes are often set in the context of rebellion or civil war in which the
authority and power of the trib unal, the law of the land. and the properness
of the procedure are anything but clear. Bolingbroke arraigns Bushy, Green
and the Earl of Wiltshire for treason even before he is crowned King. Jack
Cade purports to be the law of the land and tries and executes several
people. Henry the V111 and Wolsley have a trial to divorce Katherine -- but
she contests the jurisidiction of the court. Is the divorce trial of Katherine

mnne "judicial" a proceeding than Cade's trial of Lord Say or Bolingbroke's

29

sentence of the the three "caterpillars of the com monwealth"? Since these

are the kinds of questions I believe Shakespeare wanted his audience to ask,

 

this study calls for a broader, less prescriptive definition of trial than offered

by Black‘s, and I offer the following:

A trial is a formal and public examination of a cause, either civil
or criminal, of the issues between the parties. whether of law or
f act, in which the tribunal claims to have the authority to
conduct the examination and render a verdict.

Though this definition is not without problems, I believe it is broad
enough to bring the above three examples within the scope of "trial" while
excluding Hamlet's determination of Claudius's guilt or Othello's of
Desdemona's. Neither Hamlet nor Othello in those instances proclaimed
publicly that they were making a formal inquiry -- indeed, the"defendants,"
Claudius and Desdemona, did not even know that an examination was in
progress. In other words, Othello and Hamlet did not attempt to legitimate
their "judgments" by placing them in the context of a formal adjudication.
On the other hand, when Jack Cade tries Lord Say, he proclaims that he is
conducting a trial, takes testimony and issues a verdict in public. One could
characterize Cade's proceedings as those of a "kangaroo court." but it is the
very questionable nature of Cade's procedure that Shakespeare uses to raise
fundamental issues about what it means to have a trial.

There are few instances in Shakespeare in which an entire trial is
dramatized. The fifth act of Measure for Measure and the fourth act of _Th_e
Merchant of Venice are the most prominent exceptions. More frequently
Shakespeare dramatizes a critical part of the judicial process -- an
arraignment, a sentencing. the examination of witnesses. In this, of course, a

Shakespeare play is little different than an episode of Perry Mason or other

3O

"courtroom drama.” The blow by blow depiction of an entire trial would
leave most audiences snoring. I will use the term "trial scene" to mean m
part of an adjudication, such as Duke Humphrey‘s arraignment in 2 Henry VI
or Angelo's "sentencing hearings" of Claudio in Measure for Measure.

By the definition I propose, there are at least thirty-five trial scenes in
Shakespeare's plays. Each provides a glimpse into the social and political
complexities of Shakespeare's age and each performance of these scenes
marked an intervention in that complexity which molded attitudes as well as
reflected them. Shakespeare's effect on the law, of course, has continued as
long as his plays have been performed and read. "Know your Shakespeare,“
a lawyer once told me, ”the jury will think you‘re quoting the Bible." This
study will be an attempt to know Shakespeare a little better than that, and
in the process, perhaps, illuminate some of the judicial antinomies of our

own time.

CHAPTER 1

Political Disintegration and the
Rule of Law: Trials and Judges in 2 Henry 21

. . while the one partie sought to destroy
the other, all care of the commonwealth was
set aside, and justice and equity clearly
exiled." Holinshed.

Most of the literary-historical work done on 2 Hegy VI could be
classified as "old" historicist. The "new" historicist: have paid little attention
to Lflgnryll, which is surprising, given the obviousness with which
subversion and "class" conflict appear in the play. The most formidable
representatives of the "old" historicist approach in application to 2 Hen_ry VI
are Tillyard,l Campbell,2 Brockbank3 and Reese,4 who tend to view both of
Shakespeare's tetralogies not only as vehicles of continuing moral authority,
but as Tudor homilies, dramas which manifest the official Tudor pattern of
political sin (disobedience to the monarch, God's deputy on earth) and
retribution, i.e., plays which transmit "Tudor polemic into public
playhouse."5 As I have previously noted in the introduction, and as I believe
. an inclusive examination of 2 Hang. VI will make apparent, the "old
historical" method simply does not take sufficient cognizance of competing
ideologies and therefore produces readings which tend toward the simplistic
and narrow. One can imagine a "new" historicist reading representative of
the cultural materialist approach being used by Eagleton, Dollimore, Sinfield'
and Drakakis,6 which would focus attention on the subversive character of

the Thump v. Horner trial by combat and on the Cade rebellion of Act IV. In

32

fact, their influence on my reading of z Henny V1 will become apparent. But
I have pulled back from a full-fledged cultural materialist reading of z
mu, because I believe this branch of new historicism has, like "old
historicism" failed to take into account important discourses which would
have influenced Shakespeare and his audience and has marginalized and
demonized, under the heading of "bourgeoise sentimentalism," vast areas of
human experience which poets and dramatists have examined throughout
the ages. David Norbrook offers a summary of the cultural materialist

approach to Shakespeare, and its weaknesses, which I cannot improve upon:

The very plays that a generation ago were acclaimed as bastions
of traditional values in a declining world are now seen as
radically subverting all values and authority. Then, when this
approach seems inadequate, it may be argued that this
subversion in fact subtly reinforced the very power structures
that were being challenged. Political options, by this analysis,
were polarized between total sub mission to power, authority,
and the state on one hand and radical subversion on the other.
This polarization was mirrored in the linguistic realm by the
opposition between legitimist discourse, which made its
univocal signified appear natural, and the radical subversion
involved in the free play of signifiers. One problem with such
polarities is that they effectively red uplicate the stark
apposition: presented by absolutist propaganda: either
monarchy or anarchy. . . . Such a focus fails to do justice to the
many Renaissance thinkers who had a conception of political
order which involved neither hereditary monarchy nor total
anarchy, and a conception of linguistic order which permitted
rational communication without reinforcing feudal social
relationships7

Tillyard and Campbell, particularly, have tended to "reduplicate“
absolutist propaganda by resting their interpretations of the history plays on
the Tudor homily "0n Obedience." WW, and Tudor

33

historians, such as Holinshed, Hall and Camden. In contextualizing the
history plays, Tillyard and Campbell placed them in the midst of a discourse
(which certainly was influential and widely disseminated) that emphasized
the illegitimacy of rebellion under M1 circumstances, the inevitability of
divine retribution against those who did rebel, and the naturalness of the
Tudor social hierarchy as a reflection of the Great Chain of Being.

There were other discourses in Elizabethan society in which the
Tudor/Stuart rhetoric of royal absolutism was certainly qualified and
sometimes directly contradicted. The most influential of these was the
discourse of the common lawyers, a group of men at the heart of Tudor and
Stuart government. Furthermore, the lawyers voiced and published their
anti-absolutist views openly, and (they would have argued) in an unbroken
line from Henry de Bracton during the reign of Henry III to Sir John
Fortescue, a jurist of the mid-fifteenth—century, to Sir Thomas Smith, an
Elizabethan lawyer, to Sir Edward Coke, one of the fore most common lawyers
during the reign of James I. John Fortescue‘s De laudibus legum Angliae (in
Pnaise of the Laws of England), first printed in Latin in 1537, was translated
into English thirty years later and sold widely. Fortescue's anti-absolutist
views were highly influential, particularly among lawyers, throughout the
reigns of Elizabeth I and James I .

Fortescue believed that the purpose of government was the
protection of the persons and property of the governed. This
purpose was best served by the laws of England, which
prohibited the king from legislating or levying taxes without the
. consent of his subjects. In England, he held, the king ruled as a
constitutional monarch. The English system of government was
an amalgam of monarchical and populist elements -- a regimen
M‘ticum et regale. This implied no slur upon the king, for a
monarch who ruled over free and prosperous subjects was

34

likely to be both wealthier and more powerful than such a ruler
as the king of France, who governed downtrodden,

impoverished slaves. 8

In What! (1565), Sir Thomas Smith used
Fortescue's views as a foundation for his claim that "the most high and
absolute power of the realm of England consisteth in the Parliament“9 -- not
the king or queen The argument of the com mon lawyers was that the
common law was ancient, that even the Norman invasion had not altered it,
and that by sheer persistance, as a body of law, it had demonstrated its
superiority in fulfilling the needs of the English people: These men argued
that there was little distinction between common law. natural law, and the
dictates of reason, and generally held that good of the realm lay in the
protection of the individual's private property. In the view of Sir John
Davies, Attoney General for Ireland (1615) "custom was the best form of law
precisely because it was not instituted by a sovereign." 1° Sommerville

paraphrases Davies' view:

To obtain the force of law, custom had to win the acceptance of
the people. and there could be no stronger proof that it was in
fact suited to their needs. "A custome doth never become a Law
to bind the people. untill it hath been tried and approved time
out of mind. during all which time there did thereby arise no
inconvenience." By contrast, the edicts of a sovereign were
imposed "upon the Subject before any Triall or Probation made,
whether the same be fit and agreeable to the nature and
disposition of the people." The enactments of a sovereign might
or might not turn out to benefit the commonwealth -- only time
would tell. But the common law, being ancient custom. had by
definition passed the test of time. 11

John Aylmer, Bishop of London, on the occasion of Elizabeth's

 

35

ascension, and in refutation of John Knox's views on the regiment of women,

asserted that Elizabeth at least could not do much harm to England, simply

 

because her power was limited by law. Aylmer's view is representative of
the English common legal thought of his day and therefore, worth quoting in
full:

The regiment of England is not a mere monarchy, as some
for lack of consideration think, nor a mere oligarchy, nor
democracy, but a rule mixed of all these . . . the image whereof,
and not the image but the thing indeed, is to be seen in the
Parliament House, wherein you shall find these three estates:
the king or queen, which representeth the monarch; the
noblemen which be the aristocracy; and the burgesses and
knights the democracy. . . . If the Parliament use their privileges
the King can ordain nothing without them. If he do, it is his
fault in usurping it and their folly in nermitting it; wherefore
in my judgement those that in King Henry Vlll's days would
not grant him that his proclamations would have the force of a
statute were good fathers of the country and worthy
commendation in defending their liberty. . . . To declare that it
is not in England so dangerous a matter to have a woman ruler
as men take it to be. For first it is not she that ruleth but the
My; the executors whereof be her judges, appointed by her.
her justices of the peace and such other officers. . . . She maketh
no statutes or laws but the honourable court of Parliament. . . .
What may she do alone wherein is peril? She may grant pardon
to an offender, that is her prerogative wherein if she err it is a
tolerable and pitiful error to save life. She may misspend the
revenues of the crown wantonly; so can kings do too. and
commonly do, and yet they be kings. If on the other part the
regiment were such as all hanged upon the king‘s or queen‘s
will and not upon the laws written; if she might decree and
make laws alone, without her senate; if she judged offences
according to her wisdom and not by limitation of statutes and
laws; if she might dispose alone of war and peace; if, to be short,
she were a mere monarch and not a mixed ruler, you might
peradventure make me to fear the matter the more. . .12 (my

36

underlining)

Coke held that the royal prerogative was strictly circumscribed by the
common law and that judges and to a lesser extent, Parliament, but nnt the
km had the ultimate right to interpret common law. Magna Carta,
according to Coke was a statement of ancient customary law limiting the
monarch's power and guaranteeing individual liberty. (And again, this was
broadly equated with protecting private property.) Sommerville
summarizes the attitude of the lawyers to the idea that royal power was

absolute:

The idea that the royal prerogative was derived from and
limited by law was orthodox among Tudor lawyers. Moreover,
the Tudor monarchs themselves accepted legal limitations upon
their powers in practice, whatever high view of their authority
they may have held in theory. James and Charles, by contrast,
proved far more willling to test their theoretical claims at law,
with results that some found catastrophic. 13’

Not all common lawyers held the views of Fortescue, Smith or Coke.
But these views would have been common fare at the Inns of Court, the
"third university" of England. The intimate involv ment of the Inns of Court
with Renaissance theater has long been established and it is highly unlikely
that Shakespeare would have been unaware of the constitutional views of
the common lawyers. 1“

This leaves the question of whether common lawyers thought subjects
may actively resist a king who disobeys the law. The answer to this
question is not as cut and dried as Tillyard and Campbell had thought.
Campbell summarizes the official Tudor position as follows:

37

The king was responsible to God, both as a man, one of God's
creatures, and as his vice-regent, the representative of his
divine justice. But he was responsible only to God. He was not
to be judged by his subjects, and his subjects were not to decide
the matter of their obedience upon the basis of the king's
merits. A bad king was punishment meted out to the people for
their sins, but the king was responsible to God for his sins.
Rebellion was the rod of chastisement to the bad king, but the
rebels were no less guilty because they were used by God. Such
was the Tudor philosophy, nowhere better explained than in the

1559 Mirror for Magistnates:

'For in dede officers be Gods deputies, and it is Gods office

which they beare, and it is he whiche ordeyneth thereto
suche as himselfe lysteth, good whan he favoreth the
people, and evyll whan he wyll punysh them. And
therefore whosoever rebelleth agaynst any ruler either
good or bad, rebelleth against God, and shalbe sure of a
wretched ende: For God cannot but maintein his deputie.
Yet this I note by the waye concernyng rebelles and
rebellions. Although the devyll rayse them, yet God
alwayes useth them to his glory, as a parte of his Justice.
For when Kynges and chiefe rulers, suffer thyr under
officers to mysuse theyr subjects, and wil not heare nor
remedye theyr peoples wronges whan they complayne,
than suffreth God the Rebell to rage, and to execute that
part? of his Justice, which the parcyall prince woulde
not.

The Tudor position had several weaknesses. First, the Tudors had
themselves come to the throne by deposing one of God's deputies -- Richard
III. In Shakespeare's version of Richard III‘s fall, there is no indication that
the rebels have committed any kind of sin in killing Richard. The Tudor
response was that God had decided for Henry VII on the battlefield. Victory
was the divine stamp of legitimacy. Camden verbalized official doctrine

when he said: ”The Crown once possessed, cleareth and purifies all manner of

38

defaults or imperfections."l6 Of course, this was an argument which could
easily be turned against the Tudors by the next successful rebel and elicited

James Harrington's famous satirical barb:

Treason doth never prosper. what's the reason?
For if it prosper, none dare call it treason.”

The second weakness was that an absolute prohibition on resistance
would remove all check to the tyrannical exercise of power. The Tudor
response was that subjects could refuse to obey an unlawful or immoral
order, but that passive resistance -- tears, prayers and supplications18 --i
was the only permissible response to tyranny. Active resistance was sinful.
The punishment of kings who seized power by revolt or who exercised
power in an arbitrary or unlawful manner was to be left to God. Subjects
were not capable of judging whether a king should be deposed or not, there
always being some dissatisfied and rebellious people. Furthermore, God's

reasons for allowing an evil prince to reign could not be questioned:

God (say the holy Scriptures) maketh a wicked man to raigne
for the sinnes of the people. Again, God giveth a Prince in his
anger, meaning an evill one, and taketh away a Prince in his
dispeasure, meaning specially when hee taketh away a good
Prince for the sinnes of the people: as in our memorie hee tooke
away our good king Edward in his yong and good yeeres for our
wickednesse.

That the English people would not simply accept the crown's radical lack of
accountability is reflected in resistance to the Amicable Grant under Henry
VIII, when the people of England refused to pay what in effect was a tax
which Henry had imposed without the consent of Parliament, and in their

39

later resistance to the forced "loans" of Charles I.

The third weakness in the Tudor position was its theoretical
inconsistency with the common law; it did not adequately deal with the
implications of com man-law limitations on the king's power. In practice, the
Tudors were very politic about not forcing a constitutional confrontation
between kingly prerogative and either the statutes of Parliament or the
common law. Thus, there was little need for either the king or common
lawyers to directly speculate about any common law ground for resistance
theory. But it is implicit in Aylmer's view of Elizabeth's prerogatives that
limitations in fact could be enforced, for if they could not be, they would not
function as safeguards against misrule. Once the Stuarts came to power, and
directly challenged constitutional limitations on prerogative, resistance
theories connected to common law rights (particularly those aimed at

preserving a distinction between meum and tuum, what belonged to the

 

individual and what belonged to the crown) quickly manifested themselves.
A fourth difficulty with the Tudor position is that it was contradicted
by their own house rhetoric against certain European rulers. The major
conduit for Tudor absolutist propaganda was the clergy. Since the King was
the head of the church, and ultimately in charge of appointments and
promotion, it is no surprise that Anglican clerics spent a great deal of energy
preaching sermons and writing tracts refuting the notion of legitimate
resistance. However, there was even a lack of unanimity on resistance
among Anglican divine: -- mainly because the arguments they asserted to
legitimate the monarchical resistance of French and Dutch protestants could

be so easily turned around to justify resistance to Elizabeth! For example:

In 1585 Thomas Bilson, later Bishop of Winchester, published a
book entitled The true difference between Christian subjection

40

and unchristian rebellion. His general message was that
resistance to Princes is evil. But he admitted that there are
certain exceptions to this rule. For kings, Bilson argued, are
bound by the fundamental laws of the states over which they

rule.20

Thus, in Bilson, there is an example of a right to resist being directly tied into
the notion that kings must obey the fundamental law of the land, which in
England, would be the common law.

Tillyard and Campbell further over-simplified Tudor political attitudes
by failing to consider a third body of discourse, which the Tudors and Stuarts
certainly gin attempt to marginalize. This was the discourse of Calvinist and
Catholic resistance theory, that recognized a legitimate right to resist princes

who grievously disobeyed the law:

From the 15703 foreign Presbyterians had produced a series of
highly influential books which claimed that violent resistance
was justified against kings who ruled tyrannically. . . These

books included the notorious Vindiciae contra tyrannos,
published under the name of Stephanus Junius Brutus, and the

Scotsman George Buchanan's De jure regni anud Scotos. Both
appeared in 1579 and rapidly became bestsellers. Over the

decades the Catholics likewise printed man works permitting
resistance to heretical or tyrannical rulers. 1

As David Norbrook has shown, George Buchanan's history of Scotland, which
repeatedly asserts the right of the people to depose tyrants, may have been
a significant influence on Shakespeare s composition of M___acbeth 22
Buchanan, one of Europe's most eminent humanists, was tutor to both James
I and Montaigne. It was Buchanan who was the principle apologist for the
Scottish deposition of Mary, by which her son, James, came to the throne.

Buchanan took a rationalist approach to politics. Primogeniture was

41

irrational, according to Buchanan, because it left up to fate the quality of the
monarch. Election was far more likely to yield competent rulers. That
Buchanan's views were known -- and influential -— is at the very least
implied by the fact that James I in the Basilikon Doron felt compelled to

condemn them:

I would haue you [Prince Henry] to be well versed in authentick
histories, and in the Chronicles of all nations, but specially in
our owne histories (Ne sis neregrinnus domi) the example
whereof most neerely concernes you: I meane not of such
infamous inuecti'ues, as Buchanans or Knoxes Chronicles: and if
any of these infamous libels remaine vntill your dayes, vse the
Law vpon the keepers thereof: for in that point I would haue
you a Pythagorist, to thinke that the very spirits of these
archibellouses of rebellion, haue made transition in them that
hoardes their bookes, or maintaines their opinions; punishing
them, euen as it were their authours risen againe.2

No reading of Lflgnryll which attempts to deal with the full com-
plexity of the play can find in it an endorsement of either absolute mon-
archy or democracy/anarchy. Rather, 2 Hengy MI and the first tetralogy as
a whole confronts the discourse of absolutism with the discourse of limited
power. There are aspects of Lflnnmll which even tend toward a
judiciously indirect 9121119113 of some elements of absolute monarchy
(primogeniture, the king's superiority to law, and the doctrine of
non-resistance even to tyrannous authority). It is primogeniture which has
saddled England with a weak king, Henry VI, whose incapacity to exert
strong authority fails to keep the magnates in line and leads directly to civil
war. Gloucester, the most admirable and competent character in the play,
would make the best king, but his respect for the law acts as a check on that

ambition. Gloucester's attempts to subordinate royal conduct and his own

42

conduct to the rule of law are portrayed as courageous and self-sacrificing
acts on behalf of the commonwealth. Only the villains of the play --
particularly Suffolk, Beaufort and Margaret -- indicate that they are
prepared to exercise their own wills at the expense of the law. And with
regard to the Elizabethan line of non-resistance to royal power, no matter
how tyrannous, Shakespeare presents Henry Tudor's own deposition of
Richard III as an act which can only be described as justifiable. No tears are
shed for Richard III.

011 the other hand, there is little evidence in 2 Heng VI that popular
revolt is being endorsed. Although the play indicates, in a muted way, some
genuine sympathy for popular grievances and tends to shift much of the
responsibility for popular rebellion to weak government and the despotic
conduct of the nobles, it also exhibits a great deal of fear at the irrational and
destructive potential of popular protest and uprising. Since Henry V1 is a
law abiding king, the issue of resistance to the abuse of kingly power does
not arise. However, the play does address the disastrous consequences
which result when various people attempt to exercise arbitrary power, and
Henry, in his weakness, is unable to stop them. In short, 2 Henry VI does
not endorse absolute monarchy, popular radicalism, democracy or
republicanism. Rather, it exhibits a cautious and tactful exploration of
dangerous and inherently contradictory historical material, and in the
process, exposes the weaknesses and inconsistencies of both official and
radical political positions. The result is an incredibly shifty piece of drama
which is indirect in its criticism and reluctant to take a position itself, but
which does affirm the need to maintain and obey the common law. If, as we
shall see, 2 Hang VI often seems at odds with itself, this is not due so much
to the inherent slipperiness of signification. as to the genuine

43

treacherousness of Shakespeare's rhetorical situation as a public dramatist
operating in a dangerous environment.

The predominant concern of Emu, respect for the law on all
levels of society, is reflected in the structure of the play, which is mainly
composed of a succession of trial scenes. There are five complete criminal
adjudications in the Folio version of the play“: the trial by combat of
Thump and Hornet, Gloucester‘s impromptu trial of Saunder Simpcox, the
inquiry into Gloucester's death which results in Suffolk‘s banishment, and
Cade's trials of the clerk Emmanuel and Lord Say. The Quarto version of the
play adds a sixth scene: the trial by Cade of one Sargent-at-law who protests
the rape of his wife by one of Cade's men. Both Quarto and Folio contain four
other scenes showing may; of the judicial process: the destruction of the
suitors' pleadings by the Queen and Suffolk, the sentencing and punishment
of the Duchess of Gloucester for treason and engaging a witch, the
arraignment of Gloucester for treason, and the arraignment of York for
treason. In addition, both Quarto and Folio contain Cardinal Beaufort“:
death-bed scene, in which he imagines himself on trial before God for his
part in Duke Humphrey's death. Both versions present the abuse by the
nobles of the judicial process, the frantic reaction of the commons to the
evident corruption in King Henry's court, and the chaos that results when
different power groups rush to fill the vacuum left by Henry's mg
abdication.

Gloucester's murder, however, is the pivotal point of the play and sets
England on an irrevocable course to rebellion, anarchy and civil war. It is
Gloucester's last long speech which welds the major theme of the play -- the
destruction, by the nobles, of law and equity -- to the constantly recurring

device of the trial scene, which Shakespeare uses to structure the play:

 

44

Foule Subornation is predominant,

And Equitie exil‘d your Highnesse Land. . . .

I shall not want false Witnesse, to condemn me,
Nor store of Treasons to augment my guilt:
(Folio H 131)

Gloucester's speech is an acknowledgement that he cannot receive a
fair trial, but more than that, it is an acknowledgment that no one in England
can receive a fair trial Power, unqualified by the enforcement of law, has
triumphed, equity is exiled. The subject of W broadly, is
government; but as Brewer and Styles have noted, government operated
through the courts, and it was there that the quality of authority made itself
felt on a popular level. The disintegration of Henry's government is charted
progressively by the way in which trials are conducted and sentences
rendered. The series of trials upon which the play is built illustrates the
progressive abuse of the judicial system first by nobles and then by the
commons, the displacement of good judges by bad ones and of due process
by the arbitrary exercise of power, until finally the pretense of trial
dissolves; the magnates go to war and the rule of law is destroyed.

13 Cl C]

The belief in providence and divine retribution against traitors which
is stressed in Elizabeth's official sermons on obedience25 is embodied,
though not without ambivalence, in the first trial scene of the play. In Act I.
iii. Shakespeare presents the treason accusations of Peter Thump, the
apprentice armorer, against his master, Thomas Horner, armorer. to the Duke
of York. In Shakespeare's hands, even at this early point in his career, the
trial scene becomes a dramaturgic device for economically developing

character, theme and plot. In short order Shakespeare is able to set before

45

his audience the effect of court rivalry and dissension on the ad ministration
of justice throughout the realm; the use of trial as a political tool; an example
of the divine retribution that traitors can expect; an ironic foreshadowing of
Suffolk's execution; and characterization through contrast of Duke Humphrey
and King Henry. In the process Shakespeare entertains his audience with
large doses of violence and comedy.

The scene opens with "three 01‘ four petitioners, Peter Thump, the
Armorer‘s man, being one," waiting to present their "supplications" to
Gloucester, the Protector. They are intercepted by Suffolk and the Queen,
however. Suffolk reads the petitions, finding that the first is against the
servant of his ally Cardinal Beaufort, as the petitioner says "for keeping my
house, and lands, and wife and all, from me." The second petition is against
Suffolk himself, by the petitioner on behalf of his entire township, for
"enclosing the commons of Melford.“ The charge of enclosure would be
particularly calculated to raise audience hackles against Suffolk, enclosure
being condemned by the clergy and legislated against by Parliament
throughout the 16th century. The third petition is Peter Thump's:

Against my master
Thomas Horner, for saying that the Duke of York
Was rightful heir to the crown. (Folio H 123)

In merely showing the presentation of the first two petitions,
Shakespeare is making a statement about the political condition of the realm
and the people‘s perceptions of who can be trusted. First, the petitioners are
seeking Duke Humphrey, the Protector. In other words, they are seeking to
present their petitions to the King's Council (out of which the later conciliar
courts of Star Chamber and Chancery developed), the strongest member of

46

which is Humphrey, rather than to several other courts which could also
claim jurisidiction, such as local manorial courts, courts of assize or Common
Pleas. The obvious implication is that Suffolk controls the ad ministration of
justice in his own dukedom, and that the petitioner for Melford has been
forced to bring his suit to Westminster, where, as a last resort, he hopes to
get an impartial hearing from Gloucester. The petition against the Cardinal's
man again stresses that England is in the grip of a few men who exercise
power with no regard to law. In this short scene, Shakespeare ties the
infighting of the nobles at court, which is certainly his central concern, to the
broader effects of faction and ambition on the English people; the vicious
pursuit of power at court is just an example of how the nobles govern
throughout the country. Shakespeare may have had to be circumspect about
presenting the grievances of the commons; he puts their problems before his
audience quickly -- but suggestively. This reticence is also evident in
Holinshed, who has little to say about the plight of the English people as
whole, and yet, in brief moments, provides a glimpse (and sometimes more

than a glimpse) into vast areas of repressed (or suppressed) history:

For whilest the French thus triumphed in Normandie, three
cruell enimies among manie (as by ciuill warre and sedition
insuing appeared) sore vrged the vtter ruin of this realme at
home. One was presumption in governance, by some that were
most vnméet to rule, as the queene with her priuie counsellors
and minions; then the deale malice and pride, with insatiable
couetise in the states both spirituall and temporall: and lastlie
the generall grudge of the people, for the universal smart that

through misgouernment euerie where they suffered; who thus

forweiried with the neise of burthens too heauie for them anie
l 2 [underlining added]

W-

47

In The End of the House of Lancaster, R L. Storey describes in detail
what Holinshed, perhaps, could not comfortably or safely describe: just how
that "insatiable couetise," the manifestation of what Rene Girard calls
"mimetic desire," 27 affected law in the English countryside in the years
preceeding The Wars of the Roses:

The Yorkist manifesto of 1461 was not exaggerating when it
said that riot, murder, robbery and the like had flourished in
the time of Henry VI. And offenders were to be found in all
ranks of society, even among those responsible for upholding
the law in their own countryside. The feuds of the nobility in
the more outlying parts of the kingdom attained the proportions
of private wars. The quarrels of gentry led to the movements
of large companies of armed men, with seizure of property or
manslaughter and sack as their ostensible objectives. . . .

The semi- military operations of nobility and gentry were
undertaken without any fear of intervention by the crown, for
it had no standing army available for police duties, and its
orders to keep the peace were contemptuously ignored. Known
offenders were sooner or later subjected to the formal
procedures of the judicial system, but there was apparently
little danger of conviction and punishment. Juries of country
gentry would not convict their own kind. Instead of keeping
order and protecting the weak, the law was more commonly
misapplied to the advange of those able to control it. The
corruption and oppression of local government was the main
burden of the Kentish rebels [ie., Jack Cade's Rebellion] of
1450.23

Neither Holinshed nor Stow dwells on how the infighting of the nobles
affected the commons and yet, unlike Hall, they both include in their
histories the articles of grievance presented by Cade and his followers to
King Henry. 0f the fifteen articles of complaint presented by Cade, seven

 

directly criticize the courts. Although Shakespeare portrays the Cade rebels

48

as illiterate louts, their articulate complaints (the first written grievances of

any "peasant rebellion") provide a subtext which illuminates the entire play:

The cognlnin' t of tne commons of Kent, Q9. causes of their
assemblie on the Blackheath. . .

5 Item, the kings meniall seruants of houshold, and other
persons, asken dailie goods and lands, of impeached or indicted
of treason, the which the king granteth anon, yer they so
indangered be conuicted. The which causeth the receiuers
thereof to inforge labours and meanes applied to the death of
such people, so appeached or indicted, by subtill meanes, for
couetise of the said grants: and the pe0ple so impeached or
indicted, though it be vntrue, maie not be committed to the law
for their deliuerance, but held still in prison, to their vtter most
vndoing 6t destruction, for couetise of goods.

6 Item, though diuerse of the poore people and commons of the
realme, haue neuer so great right, truth, and perfect title to
their land: yet by vnture claim of infeoffe ment made vnto
duierse states, gentles, and the kings meniall seruants in
maintenances against the right, the true owners dare not hold,
claime, nor pursue their right. . . .

9 Item, the shiriffes and vndershiriffs let to farme their offices
and bailiwickes, taking great suertie therefore, the which
causeth extortions doone by them and by their bailiffes to the
people.

10 Item, simple and poor people that use not hunting, be
greatlie oppressed by indictments feined & doone by the saide
shiriffes, vndershiriffs, bailiffes, and other of their assent, to
cause their increase for paieing of their said farme.

11 Item, they returne in names of inquests in writing into
diuerse courts of the king not summoned nor warned, where
through the people dailie leese great summes of monie, well
high to the vttermost of their vndooing: and make leuie of
amercements called the greene wax, more in summers of monie
than can be found due of record in the kings books.

12 Item, the ministers of the court of Douer in Kent vex and
arrest diuerse people thorough all the shire out of Castle ward,
passing their bounds and libertie vsed of old time, by diuerse
subtill and vntrue meanes and actions falselie feined, taking

 

49

great fees at their lust in great hurt of the people on all the
shire of Kent. . . .

15 Item, the people be sore vexed in costs and labour, called to
the sessions of peace in the said shire, appearing from the
furthest and vtter most part of the west vnto the east; the which
causeth to some mean fiue daies iournie: wherevpon they desire
the said appearance to be diuided into two parts; the which one
part, to appeare in one place; an other part, in an other place; in
releeuing of the greeuances and intollerable labours 6t vexations
of the said people.29

This is quite a catalog of judicial misconduct: the selling of the goods
and property of those who are accused of treason before they are even
convicted (thus ensuring that they will be convicted); the lease ("farme') of
judicial offices to people who can make them pay through extortion and false
accusations; the taking of default judgments against defendants who have
been neither summoned nor notified of suits pending against them; the lack
of convenient access to the courts, and item six. the illegal eviction of people
from their property, which is precisely the complaint, in this scene (Act 1.
iii). of the first petitioner. The picture the complaint of the commons draws
is that of a court system used daily for plundering the people. The articles
do not reflect a rebellion aimed at anarchy; rather, they display acceptance
of the laws in place and a desire to see the law enforced fairly. The reactions
of Holinshed and Stow to this complaint are instructive in their divergence.
Holinshed does not attack the articles of grievance for being inaccurate;
rather he proceeds W and calls into question Cade's motivation
for presenting the complaint. asserting that the articles "shadowed vnder a
cloke of good meaning" Cade‘s bid for mere power. Holinshed then
apologetically sets forth the articles:

bicause a full report of this insurrection mnig passe to the

50

knowledge of the readers; it is necessarie to set downe the
articles of the commons complaints touching the premisses,
whereof a copie was sent to the parle ment then holden at
Westminster, with their bill of requests concerning abuses to be
reformed. 30 (underlining added)

Holinshed's phrasing -- that “a full report . . . maie passe to. . . the readers"
is itself quite suggestive of the chilling effect of Elizabethan censorship.
Holinshed was able to present the articles as a docu ment, but that document
had to speak for itself. It is doubtful that Holinshed would have been
discouraged from disagreeing with the accuracy or justness of Cade‘s charges.

But he does not disagree.

Stow, on the other hand, gives a fleeting and somewhat ambiguous

endorsement of the document:

. . . the king sent notable men to the said Captaine [Cade] and his
fellowship, to know their purpose and the cause of their insurrection:
unto whom the Captain answered. that he and his company were
assembled there to redresse and reforme the wrongs that were done
in the realme, and to withstand the malice of them that were
destroyers of the common-weale, and to amend the defaultes of them
that were chiefe oounsellers to the king. and shewed unto them the
Articles of complaints touching the misgouvernment of the Realme,
wherein was nothing contayned but seemed reasonable, whereof a
copie was sent to the Parliament holden that at Westminster. . .31
(underlining added)

In this amphibolous statement, it is ambiguous whether the articles
seemed reasonable to the "notable men" whom the King sent to Cade, or
whether this is an editorial interpolation by Stow, or perhaps an editorial
comment which Stow could conveniently attribute to ”the notable men." But
the effect on the reader is the same: the justness of the grievances is being

affirmed by someone with "authority." In discussing the rejection of the

51

articles and the attack on the Kentishmen, neither Stow nor Holinshed
indicate that the nobles disagreed with the complaint. Rather, the articles
were disallowed and condemned "as proud and presumptuous." Then Cade
was attacked.

In W Shakespeare never directly sets the content of these
articles before his audience, but he does remind his audience that the
articles were written and submitted to Henry. In the middle of the Cade
Rebellion, in a scene which modern editors mark Act IV. iv., the Folio gives
the following stage direction: " Enter the King with a Sunnlication, and the
Queene with Suffolkes head, the Duke of Buckingham, gdthe Lord Say. "
At this point, the Quarto contains the direction, "Enter the King reading of a
Lg_t_te_r, . . Both Quarto and Folio indicate that the King is reading a

communication from the rebels and that he will send a reply:

Buc. What answer makes your Grace to the Rebells
Supplication?

King. Ile send some holy Bishop to intreat:
For God forbid, so many simple soules
Should perish by the Sword. And I my selfe,
Rather than bloody Warre shall cut them short,
Will parley with Iacke Cade their Generall,
But stay, Ile read it ouer ohm againe. (Folio H. 140)

Anyone in Shakespeare's audience who had read Holinshed or Stow would
have had the articles in mind, and would have realized what King Henry held
in his hand. There are several other instances in the play which suggest that
Shakespeare had these grievances in mind, particularly in Act I. iii. where
the suitors to Gloucester encounter Margaret and Suffolk and in the entirety
of Act IV, where Cade and his rebels put the legal system on trial.

The Quarto (1594) often emphasizes the thematic concerns of judicial

52

lawlessness more heavily than the Folio, and it is instructive to consider
some of the differences between the two versions. Both Quarto and Folio
versions of Act 1. iii. stress the bad luck of the petitioners in meeting Suffolk
before Gloucester. In the Quarto, the scene begins when both of the ‘
nameless petitioners mistake Suffolk for Gloucester, and give Suffolk their
petitions. The first petitioner, realizing the error, crys "Oh we are undone,
this is the Duke of Suffolk." (Quarto B2 r) In the Folio, the scene begins with
a conversation, between the petitioners, contrasting Duke Humphrey with
Suffolk:

1st Petitioner: My Masters,1et's stand close. my Lord Protector
will come this way by and by, and then wee may deliver our
Supplications in the Quill.

2nd Petitioner: Marry the Lord protect him, for hee's a good
man, Jesu bless him.

@th Suffolke, and Queene

Peter: Here a comes me thinkes, and the Queene with him: Ile
be the first sure.

2nd Petitioner: Come backe foole. this is the Duke of Suffolk, and
not my Lord Protector. (Folio H 123)

Both versions stress that there is really only one judge who can be
relied upon to give a disinterested verdict, and that is Humphrey. The Folio
emphasizes that Humphrey is the protector of the realm in more than title.
By inverting "Lord Protector" with "Lord protect him," stress is placed on the
indispensability of Humphrey to England and underscores popular anxiety
that Humphrey may be in danger. "My Lord Protector" is not just a manner
of formal address for these people -- it is the literal truth.

In the Folio, the Queen tears up the first two petitions after making

the following speech:

53

And as for you that loue to be protected
Vnder the Wings of our Protectors Grace,
Begin your Suites anew and sue to him. (Folio H 123)

In Quarto, it is 52% who tears the petitions, ending the encounter
with a threat:

t e a rs.
So now show your petitions to Duke Humphrey.
Villaines get you gone and come not neare the Court,
Dare these pesants write against me thus. (Quarto B2 v)

In the Folio version, the Queen at least acknowledges the possibility
that the petitioners will be able to bring their suits again. She has merely
slowed them down, since they will have to recopy the petitions and submit
them to Humphrey. Suffolk's act in the Quarto is more dangerous and
violent. He clearly desires to close the courts permanently to these
petitioners and reveals his attitude that the lower classes simply should not
be able to sue the nobles. His invitation to the suitors to "now show your
Petitions to Duke Humphrey" can be taken as an insult, a move toward direct
confrontation with Humphrey, or both.

After blocking the suits of the other petitioners, Suffolk and Margaret
are able to emphasize Thump's accusation that his master made the
treasonous statement that York "was rightful heir to the crown." The
political implications of Thump's charge against York's armorer are great, for
York and Somerset are competing for the Regency of France. Suffolk, who
backs Somerset, sees this accusation of treason as a way of discrediting York,
and throwing the regency to Somerset. In Folio and Quarto, the act of
destroying the petitions not only displays vindictiveness and a strong

indication of the despotism Suffolk and the Queen would like to establish in

54

England, but also allows them to present Thump's suit so that it will receive
all of the council’s attention, focusing suspicion on York. The action of Suffolk
and the Queen combines utter disrespect for the rule of law with real
political astuteness as to the way in which a seemingly minor judicial detail,
such as the management of the court calendar through the selection of cases,
can be used to manipulate politics. Since the value of a dramatic
presentation is not lost on Suffolk, and since Thu mp has displayed little
competence with the English language, Suffolk begins the trial by presenting

Thump's accusation himself:

Suff. Please it your Majestie, this is the man
That doth accuse his master of High Treason;
His words were these: That Richard Duke of Yorke,
Was rightfull Heir unto the English Crowne
And that your Majestie was an Usurper.

King. Say man, were these thy words?

Armorer. And't shall please your Majestic, I never sayd
nor thought any such matter. God is my witnesse, I am
falsely accus‘d by the Villaine.

Peter. By these tenne bones, my Lords, hee did speake
them to me in the Garret one Night. as wee were scou-
ring my Lord of Yorkes Armor.

Yorke.Base Dunghill Villaine. and Mechanicall,
Ile haue thy Head for this thy Traytors speech:
I doe beseech your Royall Majestie,~
Let him haue all the rigor of the Law.

Armorer: Alas, my Lord, hang me if euer I spake the
words; My accuser is my Prentice, and when I did cor-
rect him for his fault the other day, he did vow upon his
knees he would be euen with me. I have good witnesse
of this; therefore I beseech your Majestic, do not cast
away an honest man for a Villaines accusation.
(Folio H 124)

Henry's ineffectualness as a ruler is emphasized throughout the play,

55

and in this scene it is displayed in his inability to judge the case. The King‘s
reliance on The Protector, Gloucester, is a bit more emphatic in Quarto than
in Folio. In Quarto, Henry asks Gloucester: "Uncle Gloucester, what do m
think of this lcasel?" (Quarto BS v) In Folio, Henry asks, “Uncle, what shall i
we say to this in law?" (Folio H 124) The Quarto version emphasizes Henry's
desire that Gloucester decide the issue, while the second mutes that
dependency and indicates a partnership between Henry and Gloucester in
which Henry retains authority but seeks Gloucester's advice. Both versions
share one important elemen -- the determination of Henry and Gloucester
to judge according to previously established rules of law.

That Humphrey's decision is based on established law rather than his
own proclivities is explicit in both Quarto and Folio, though perhaps more so

in Quarto. Humphrey replies in the Quarto:

The law my Lord is this by case, it rests suspitious
That a day of combat be appointed,
And there to trie each others right or wrong, . . . (0 [B4] r)

In the Folio, Henry asks for Gloucester's opinion "in law." Gloucester then
renders a verdict, but he does not obviously appear to be working his way
thnpngn the law toward that verdict. Rather, 1119.; giving the verdict he
states: "This is the law, and this Duke Humphrey's doom." (Folio H 124). The

 

difference is that in Quarto, Gloucester negins by declaring he is proceeding
on the basis of legal precedent -- "the law by case" -- and then renders the
verdict This sequence comes closer to displaying the mental process that
judges would ling to believe (or at least would like others to believe) they
use in deciding cases. In the Folio, there is a slight hint that Humphrey is

reasoning backwards from a conclusion. The Folio, however, contains a very

S6

important incident in the characterization of Humphrey which is lacking in
the Quarto. In the Folio, between Thump's initial meeting with Suffolk and
Thump's presentation to the court, Gloucester leaves in a rage after being
accused of many derelictions and crimes by the Queen, Somerset, Suffolk,
Cardinal Beaufort and Buckingham. But Humphrey shortly returns to the
council, displaying the sagacity and loyalty which make him the model

subject and servant of the commonwealtlr

Now Lords, my Choller being over-blowne,

With walking once about the Quadrangle,

I come to talke of com man-wealth Affayres.

As for your spightfull false Objections,

Prove them, and I lye open to the Law:

But God in mercie so deale with my Soule,

As I in dutie Love my King and Countrey. (Folio H 124)

Gloucester's determination to decide cases on the basis of reason rather than
temper, his willingness to put the good of the commonwealth ahead of his
own, and his belief in the rule of law as a rational and fair instrument of
government establish him as the bulwark of order and good judgment in ;
Hm VI.
York, of course, in a traitor and Gloucester's judgment with regard to
the regency, though a victory of Gloucester's enemy Suffolk, is reasonable:
Let Somerset be Regent o'er the French,
Because in Yorke this breeds suspicion;

And let these [Thump and Hornerl haue a day appointed them
For single Combat in conuenient place, . . . (Folio H 124)

Suffolk accomplishes his political purpose, and the Thump-Homer suit is
adjourned until Act II. iii., in which Shakespeare presents the trial by battle.
E] C] D

 

57

In theory, trial by battle was born of the same medieval notion of
divine intervention in judicial afTairs that provided the basis for trial by
ordeal. Where proof of guilt was often impossible to obtain, or when the
only proof a judge had to consider was the word of accuser against accused,
judicial despair arose over the lack of evidence; the judge abdicated as trier
of fact and turned the proceedings over to God. Judicial duels and ordeals
are often said to form the beginnings of the law of evidence, if only as an
acknowledgment of how inadequate human investigation can be. The
theological basis for trial by battle and ordeal are substantially the same and
the invocation which was spoken at the beginning of an ordeal, as set forth
in the F mula Merowin i ' et Karo ’ ' aev' provides a good theoretical

statement for the justification of trial by battle:

0 God, the just judge, who are the author of peace and give fair
judgment, we humbly pray you to deign to bless and sanctify
this fiery iron, which is used in the examination of doubtful
issues. If this man is innocent of the charge from which he
seeks to clear himself, he will take this fiery iron in his hand
and appear unharmed; if he is guilty, let your most just power
declare that truth in him, so that wickedness may not conquer
justice but falsehood always be overcome by truth.32

Political expedience probably had more to do with maintaining the
institution of trial by combat than did evidentiary or theological
justifications. The above invocation illustrates how powerfully trial by
combat yoked the concept of divine retribution to adjudication, and
therefore, to the state; God, in effect, was placed in a position as servant to a
human court, demonstrating His support for the established power by
rooting out traitors. Trial by battle was decreed by Parliament not only in

cases where there was little proof except one man's word against the other's,

58

but also in cases involving treasonous accusations, perhaps because the proof
in such instances also generally came down to the word of accuser against
accused. In the confrontation between Thump and Horner, Shakespeare
presents the historically strongest case for trial by battle -- one in which the
issue is treason and there is no way to determine which party is lying. Since
the loser of the battle by definition had to be guilty of treason, trial by battle
always had the effect of legitimating the status quo, God having seen to it
that a threat to those in power was eliminated. Also, if government policy
was to eliminate traitors, trial by battle was not a bad solution. Given the
fact that at least one of the combatants would be killed, there was at least a
50% chance of eliminating the guilty party and even a better chance than
that of maiming him.

Of course, such pragmatic arguments in favor of trial by combat were
never made openly, and from the very beginning, trial by combat came
under attack by the church. Though the theory of judicial duel was that "a
weak, just man would defeat a strong, unjust man,"33 several medieval
authors argued, on the basis of results, that God generally seemed to be on
the side of the bigger, stronger, better trained warrior. The biblical story of
David and Goliath was often cited in rebuttal as evidence of divine sanction,
but Pope Nicholas 1, as early as the mid-ninth century attacked trial by
battle, noting that "divine authority never sanctioned it as law. . . and those
who practice it are only tempting ood."34 Though trial by ordeal, which had
long been opposed by the church, was effectively destroyed by the Fourth
Lateran Council in 1215 when clergy were forbidden to participate in the
process, trial by battle, which had never been dependent on the participation
of clergy, continued throughout the middle ages. The last judicial duel to be
fought in England occurred in 1492, although trial by battle was still

59

technically available until 1819.
Peter Thump may be cited as one of those participants who shared

Nicholas I's doubts about divine intervention in judicially declared combats:

Alas, my Lord, I cannot fight; for Gods sake

pitty my case: The spight of man preuaileth against me.
O Lord, haue mercy upon me, I shall never be able to
fight a blow: O Lord, my heart. (Folio H 125)

Gloucester's reply to this is "Sirrah, or you must fight, or else be
hang'd," a speech which is given to Suffolk in the Quarto, and which is
presumptuous (and therefore in character) coming from his mouth, since
Henry has asked Gloucester to judge. The dilemma faced by Peter between
fighting or hanging is historically accurate. Those who were doomed to
participate in a judicial duel but refused to fight were hung, as were the
defeated who clung to life long enough to be dragged to the gallows erected
beside the field of combat. After the loser was killed -- or finished off on
the gallows -- he suffered the usual fate of traitors and was drawn and
quartered.

One can only speculate about how Shakespeare's company produced
the combat between Horner and Thump, but it is probable, from the tone of
the scene, that it was milked for full comic effect. The scene begins with the
entourages of Peter and Homer entering at opposite doors. drinking heavily
to the combatants. Horner himself is drunk, and though Peter wisely
declines more drink, he might well have been played as somewhat
inebriated, though certainly not as drunk as Horner. The weapons are not
the swords of chivalrous combatants, but staves with sand-bags fastened at
the ends, suggesting that the combat resembled a Punch and Judy contest, or

a pillow fight, rather than, for instance, the chivalrous duel Bolingbroke and

60

Mowbray are prepared to fight in Richard II. The entertainment value is
not lost on the court, and Shakespeare provides a ghastly and quick piece of
characterization by having the Queen comment she has purposely left court
"to see this quarrel tried." Peter is described by York as "more afraid to
fight" than any fellow he has ever seen. Peter, however, makes a better
beginning than Horner. He prepares for death. giving away his worldly
possessions and invoking the name of God, while Horner continues to drink
and invokes the name of Bevis of Southhampton.

The "class"35 character of the Thump v. Horner battle is immediately
apparent in both Quarto and Folio. Homer and Thump enter from opposite
sides of the stage, Thump surrounded by apprentices and Homer surrounded
by "neighbors," i.e., social equals. In the Quarto, with a minor variation in
the Folio, Peter is urged by another apprentice to “fight for the credit of the
Prentises." (Quarto D v). Horner, on the other hand, is repeatedly called
"neighbor" by his neighbors, emphasizing that they are part of a distinct

group in opposition to the apprentices:

l. Neighbor: Here neighbor Hornor, I drink to you in a cup of Sacke.
And fear not neighbor, you shall do well inough.

2. Neighbor: And here neighbor, heres a cup of Charneco.

3. Neighbor: Heres a pot of good double beere, neighbor drinke
And be merry, and feare not your man. (Quarto D v)

Peter strikes the drunken Horner down and in both Quarto and Folio
Horner confesses his treason before he dies. Though York may have praised
God had Horner won, his comment to Peter on the defeat of his armorer is an
attempt to cast doubt on providential interventiom “Fellow, thanke God, hing
thg good wine in thy master's way." (Folio H 129). This bit of skepticism is

not contained in the Quarto, and in Folio it underscores York's refusal to

61

accept the outcome of the trial as a divine judgment which also attaches to
himself. Those bent on finding divine causation, of course, could easily
attribute Horner's drunkeness to divine intervention, and Peter and the King,
following true to theory and their own temperaments, take Horner's defeat

as an act of God:

Peter. 0 God, haue I overcome mine Enemies in this
presence? 0 Peter, thou hast preuaiyled in right!
King: Goe, take hence that Traytor [Hornerl from our sight.
For by his death we doe perceiue his guilt,
And God in justice hath reueal'd to us
The truth and innocence of this poore fellow,
Which he had thought to have murther‘d wrongfully.
(Folio H 129)

The King, of course, fails to read the malice between the lines of York's
comment to Peter, and apparently confirmed in the belief that God will
protect him, does nothing to protect himself. He is more interested in
divinity than politics, a trait which is emphasized again and again through-
out the play.

After Peter's victory, the apprentices have a significant line which
does not appear in the Folio. As a chorus they shout: "Ho well done Peter,
God saue the King," (0 D r) affirming the primacy of this group's loyalty to

the King, rather than to the group represented by Homer and his neighbors.

 

Thus Shakespeare, both in Quarto and Folio, but particularly in Quarto,
emphasizes (as his sources do not) the class character of the conflict
between Peter Thump and Hornet, and, in a way which is especially
flattering to the loyalty and bravery of apprentices, makes Peter the
surrogate victor of the entire group of apprentices.

For Shakespeare's audience, perhaps the most provocative aspect of

62

the Thump v. Horner trial would have been the status of the parties -- an
apprentice challenging his master. Considering the subordinate relation of
apprentices to masters in the partriarchal society of Elizabethan England, the
situation itself would have been controversial. The "Ho well done," that the
apprentices shout (in Quarto) is, after all, in response to a kind of patricide,
Peter's killing of his own master -- the Oedipal desire at least partly fulfilled.
One wonders how many apprentices in Shakespeare‘s audience would have
vicariously enjoyed that fantasy, how much repressed anger would have
been galvanized by that scen -- and how many masters may have secretly
shuddered. Also, considering the numbers of apprentices in London, the
thought of group insubordination, as suggested by Peter's supporters, would
have been more than disquieting.

Such uneasy thoughts had led in 1563 to the major piece of
Elizabethan legislation governing apprentices, the Statute of Artificers. This
broad piece of Elizabethan social legislation not only regulated
apprenticeships in all guilds and crafts, but attempted to exert control over
that unruly group of peopl -- male adolescents. A major purpose of the act
was to inhibit "vagabondage" by limiting the geographic mobility of labour.
Under the act, local officials had the power to place into apprenticeships:
orphans, children from poor households, and vagrants. Each year thousands
of boys came to London to be apprentices36 and apprenticeships generally
lasted seven years, as was required by statute.

Once apprenticed, the boy became part of an extended "family"
possibly including the master's wife, children, and other servants and
apprentices. “Relying on his master for instruction as well as food, clothing
and shelter, the apprentice became a part of his master‘s household, and

ideally lived under him as he would have under his own father."37

63

The importance of the family unit was fundamental and the power of

the father within the unit, supreme:

At the heart of [the] conception of order was the patriarchal
family. The authority of husbands over wives, of parents over
children, of the partiarchal head over subordinate members of
the household -- servants and apprentices as well as
blood-relations -- was the central axiom on which all else
depended. Its divine origin justified, by analogy, the authority
of clergy over laity, of gentry over dependents, of kings over
subjects. The sonorous message of the Elizabethan Homily on
Obedience, incessantly reiterated in the teaching and catechizing
of the young and in sermons to their elders, was sustained by
the whole majesty of church, law, and government. 8

The partriarchal nature of the master-servant relationship was set
forth in several guidebooks 39 which recognized "the master's responsibility
for disciplining his apprentices, and the apprentice's obligation to render
complete obedience and faithful service," 40 In addition, the duty of the
apprentice was spelled out in his articles of indenture, which usually stated
that the apprentice would serve seven years "during which term the said
apprentice his said master well and truly shall serve, his seggts kegn close,
his commandments lawful and honest everywhere he shall willingly do: hnnt

 

Within this context, the dis-ease which the Thump v. Horner scene
might cause becomes apparent, and is further emphasized by three factors.
First, apprentices had a sense of group identity and solidarity which was a
potential threat to the patriarchal social structure and made group political
action on their part a genuine possiblity. Their potential for disruptive
conduct made the central government, and perhaps to a lesser extent the

city government, uneasy. Second, in the early 1590's, when the play was in

64

all probabililty being written and performed (The Quarto version was
registered in 1594.) apprentices did take part in several disturbances which
sometimes brought about violent reactions from city officials and the crown.
The government had genuine reason to beware of the capacity of apprentices
to make trouble, and worse, to take political action as a group. Third,
Shakespeare's apparent inversion of the partriarchal social order directly
contradicts all historical sources dealing with the Thump v. Homer incident.
First, let us consider the status of apprentices as a separate and
cohesive category of persons. According to Steven R. Smith, "apprentices
thought of themselves and were thought of as a separate order or
subculture." 42 They took pride in their identity. As Smith explains, they
had their own heros (Dick Worthington, Simon Eyre, George Barnwell, for

example), their own literature, and their own sense of social purpose:

They saw themselves as moral agents, defending the right,
whether it were the "right" Protestant religion, or the "right"
behavior of London's prostitutes, who were frequent targets of
apprentice riots throughout the [seventeenth] century. But
perhaps their greatest value was "fraternal affection",
something not unlike the class solidarity urged by labour
leaders of a later age and the youth solidarity urged by student
leaders in the twentieth century.

The "fraternal affection" which Shakespeare captures in the hearty
and loyal group of apprentices who cheer on Peter Thump may have been as
threatening to some parts of Shakespeare's audience as it was inspiring to
others. "Adolescents and youths were seen by many as the primary
instigators of disorder. Youthful illicit sex, and other aspects of personal
misbehaviour that could produce a breach of the peace, were regarded as a

sign of the failure of household discipline." 44 More significant than this

65

general attitude toward adolescence is the part apprentices took in some
serious public demonstrations and disturbances. Penry Williams provides a
long sample of the tensions involved and contemporary attitudes toward the
conduct of apprentices. I quote at length from Williams“ description so that
apprentice disorder in the early 1590s can be appreciated as a developing

and growing phenomenon:

London, which had been quiet and orderly since the Evil May
Day of 1517, began in the late 15803 to take on a more violent
aspect. At first the main threat to the composure of the city
fathers and the central government came . . . from a
combination of disbanded solders and sailors with masterless
men and vagabonds. But early in the 15903 the serving—men
and apprentices of London itself began to add their
discontented voices to the protests of unpaid troops. In 1590
some apprentices broke into a lawyer's office in Lincoln's Inn.
The following year saw a riot set off by Hackett, the sectary,
which ended in his torture and execution. More serious was the
'tumult' which broke out in Southwark during June 1592.
According to the Lord Mayor it was caused by the unnecessarily
provocative behaviour of the Knight Marshal's men in serving
warrants. But discontent seems also to have been stimulated by
resentment against foreign artisans. The Privy Council,
apprehensive of further outbreaks, ordered that all servants be
kept indoors on Midsummer Eve and Midsummer Night, and
that no play nor public pastimes be allowed which might “draw
together the baser sort of people.‘ The Lord Mayor, while
promising that he and his colleagues would punish offenders as
an example, 'with such caution as is meet to be used in
proceeding against multitudes', asked that justice be
even-handed and that some disciplinary action be taken also
against the men of the Knight Marshal. In the following October
there was a riot in Holborn after the execution of a man who
had killed an officer. The Privy Council's comments suggest
some tension between the central government and the city
fathers, whom the council criticized for giving bail to offenders.
The most serious troubles occurred in June 1595. When a

66

silk -weaver went to the Lord Mayor's house and criticized his
government, the Mayor, evidently astounded at such
presumption, decided that he was mad and ordered him to be
committed to Bedlam. On the way he was rescued by a crowd
of two or three hundred apprentices. In the next week there
were riots about butter and fish, followed by another rescue of
a prisoner. On this occasion, a serving-man, angered by his
brother's ill treatment by his master, attacked the master and
broke open his head. After he had been arrested and sent to
the Counter, he was forcibly released by a crowd of apprentices.
The man was again arrested together with some of his rescuers
and put in irons. After the Mayor had gone to the prison to
order their close confinement, he was passed on his return by
an apprentice who refused to take off his cap; he too was sent to
the Counter for insubordination. Next day a report came in
that some apprentices had conspired with disbanded soldiers,
who said to them 'you know not your own strength‘. Trouble
seems to have rumbled on for some years, although in the end
no disaster occurred.

The tensions and dissatisfactions underlying these
disturbances have yet to be revealed. There was certainly some
resentment against foreign artisans. By 1595 this had been
accentuated by hostility among the apprentices towards the city
government, especially towards John Spencer, then Lord Mayor.
High prices of foodstuffs can hardly have been relevant in the
early stages, since the cost of living was relatively low in 1592,
but had certainly become a major grievance by 1595. 45

The actions of Thump and his supportive band of apprentices not only
represent the potential threat of mass political action. but also of betrayal.
Dispersed through the households of the realm, possessed of an officious
moralism and patriotism, the apprentices could have served as a
frighteningly accessible source of information about their masters. No one
has yet fully examined the psychological and sociological effect of the mass
of treason legislation enacted under the Tudors and the crown's great

willingness to use it as a means of destroying its enemies. But it certainly

67

must have contributed to the lack of trust between people which Lacey
Baldwin Smith describes as one of the period‘s most characteristic features.
Failure to report treason was itself treason, and against the Tudor craving for
order and stability must be set the Tudor fear of betrayal by members of

one‘s household:

In the Mg :9; of Magistrates, the fate of the second Duke of
Buckingham is presented as a lesson in misplaced trust. By
trusting his servant and his King, the Duke was betrayed and
executed. . .

Secrecy was a social and political obsession which was
regarded as one of the basic laws of nature, for the whole world
knew that 'wild beasts dwell in dens, fishes bed in mud, and
birds in nests; and a wise man is wrapped up in secrecy“. Sir
Thomas Elyot warned his noble reader to take great care ‘whom
he may use as his familiars and safely commit to them his
secrets', . . .

In such an atmosphere the advice offered by the three
most ruthlessly pessimistic fathers of late Elizabethan society --
Sir William Wentworth, Sir Walter Raleigh, and Henry Percy,
ninth Earl of Northumberland -- can no longer be regarded as
deplorable oddities of the age, but must be accepted as highly
quotable confirmation of the paranoid climate of opinion held
by all parents, educators, and moralists. The three men not
only shared a devastatingly low view of human nature but they
also urged a common theme upon their offspring: ‘Ever fear the
worst.‘ Wentworth advised his son to 'be very careful to govern
your tongue, and never speak in open places all you think‘ and
’in matters of great importance trust none'. . . . Raleigh was in
agreement. ‘Be advised', he told his heir, ‘what thou doest
discourse of, what thou maintainest whether touching religion,
state, or vanity; for if thou err in the first, thou shalt be
accounted profane; if in the second, dangerous; in the third,
indiscreet and foolish.“‘6

Thus, to the Elizabethans, the most disquieting suggestion of 2 Henry VI

68

may well have been that one was not safe to speak his mind even in his own
house, that loyalty to the family and loyalty to the statewere in fact at odds,
and that, while a state could not exist without stablity in the family, the
state's very efforts to purge itself of treason were undermining the harmony
of family life, and in the long run, the state itself.

The Thump v. Horner episode demonstrates how Tudor treason
legislation created a situation in which state security could only be
maintained at great expense to the family. Anyone could prosecute a family
grudge under the mere color of a treason accusation. Anyone could be an
informer. Peter not only m reveal his master's secrets (in conformity to
the treason laws but against the articles of the typical indenture), but he
kills the man who figures as his father -- again breaching the typical articles
of indenture: "hurt nor damage against his master he shall none do." Despite
the treason laws, which made it treason not to report treasonous sayings, one
would doubt that Shakespeare's audience greeted this conduct with
unqualified approbation. The histories which deal with the incident accuse
the apprentice of falsely accusing his master, though one can speculate that
this is a bit of calumny arising from outrage at the apprentice's disloyalty.
Whatever really happened between the armorer and his apprentice, the
outrage at this challenge to the social structure is evident in Shakespeare's
sources.

The battle between the ar morer and his apprentice appears in the
histories of Holinshed, Stow, and Hall. In all three histories, the apprentice
indeed vanquishes his master, but that is where the similarity between the
sources and the play ends, for in all of the histories, the apprentice is a lying

scoundrel. Stow gives the most detailed account:

69

Iohn David appeached his master William Catur, an armorer
dwelling in S. Dunstons parish in Fleetstreet of treason, a day
being assigned them to fight in Smithfield, & master being
welbeloved, was so cherished by his friends at plied so with
wine, that being therewith ouercome was also unluckely slaine
by his seruant: but that false seruant (for he falsely accused his
master) lived not long unpunished, for he was after hanged at
Tyborne for felony.4

Hall also notes that the apprentice was hanged at lyburne, and describes
him as "a coward and a wretch," 48 but does not indicate that the apprentice
had falsely accused his master. Holinshed‘s comment is that the master "was
slaine without guilt. As for the false servant, he liued not long unpunished,
for being conuict of felonie in court of assize, he was iudged to be hanged,
and so was, at Tib urne."49 But the most vitriolic and personal moral lesson

to be derived from this incident is set forth by Stow:

Let such false accusers note this example 6: looke for no better
and without speedie repentance. Myself have had y like
servant y likewise accused me of many articles. He liveth yet,
but hath hardly escaped hanging since. God make him
penitent.So

It is evident that Shakespeare's sources provide from the beginning a
situtation which is highly problematic. Not only does the servant in
challenging his master also challenge that basic building block of Elizabethan
society, the family, but he also makes a mockery of the trial process. God
does not give the innocent party victory —- rather it goes to the liar. One can
always argue, as do Stow and Holinshed, that God will not be denied, and
that the apprentice was punished later at Tyb urne, but this still leaves the
problem of dead Mr. Catur, the master -- where was justice there? What

happens to the master‘s now fatherless family? And how does the servant's

70

eventual execution redress the abuse of judicial process, in which the master,
though innocent, is legally killed and then, in all probablity, drawn and
quartered with his head set upon London Bridge as an example? The
gloating of Stow and Holinshed over the apprentice‘s execution seems a
rather ragged attempt to extract some kind of order out of an incident which
threatens the foundations of Elizabethan cosmology and social structure.

The main issue here is whether Shakespeare‘s revision of his sources
removes these contradictions or makes the incident any more palatable.
Would it have been more comfortable for Shakespeare's audience to see (1) a
“true“ servant who informs on and kills his treasonous master. or (2) a false
servant who informs on and kills his loyal master, but who is later hanged?
Allowing Peter to triumph is more effective dramatically. It capitalizes on
the p0pular David v. Goliath situation and resolves the incident in one short
scene. Making Peter the villain would necessitate either another scene, in
which he gets his just desserts, or at least a report of such an incident.

Either would impede the play's progress. Second, Shakespeare's version
seems to affirm (I) that God in in charge and that traitors will be punished
and (2) that one‘s primary loyalty is to the King -- not one's immediate
master. Since the law in Shakespeare‘s time was that failure to report
treasonous speech was itself treason, Peter is merely obeying the law, at the
risk of his own life and at the cost of his position as apprentice. However,
the price which Shakespeare pays for affirming loyalties to God and King
comes at the expense of the immediate family and Peter‘s indentures. After
all, Peter's master has merely made a private comment -- how much danger
does this armorer really present to the crown? In the end Horner confesses
treason and Peter‘s victory appears to be a miracle, but the implications of

the scene remain: given the broad scope of treason legislation any servant or

71

apprentice, rightly or wrongly, could accuse his master, and any son his
father, of treason, and be supported by the government in forcing the issue
to a life and death struggle. Treason legislation, ostensibly a crucial tool for
preserving social order, could be used as a wedge to destroy the family, the
fundamental unit of political order. Simply by putting this scene on stage,
Shakespeare shows the capacity for self-destruction which was built into the
society of Henry VI -- and Elizabeth.

Given the contemporary climate of apprentice class "disorder," the
government‘s general attitude of dis-ease toward apprentices as a group, and
the contrary thrust of Shakespeare's sources, what could Shakespeare,
particularly in the Quarto version, have been aiming at in this scene
glorilying an apprentice's killing of his master? Was the Quarto version
written for an audience in which there were large numbers of apprentices or
people favorable to apprentices? (This is less likely if Anne Jennalie Cook is
correct about the composition of Shakespeare's "privileged" audience.51 )
Was the Quarto scene an apology for apprentices directed toward a
privileged audience? (One doubts that Henry VI would have been so
popular had Shakespeare served his audience didactic lessons with
unpalatable political implications.) Was the scene written for an audience of
quite mixed social standing which would have reacted to it in various ways?

These questions may be impossible to answer, but the very difficulty
of linking audience composition to dramatic content may be the most
important clue to the social dynamics of Shakespeare's theatre and
demonstrates how hopelessly inadequate it is to label Shakepeare or his
audience "conservative." For what is it that Shakespeare and his audience
are conserving? If loyalty to the crown is conserved, it is only at the

expense of loyalty to the family, and if the actions of Peter are odious to

72

some portion of the audience, is it not because they would conserve family
loyalty at the expense of the crown? More importantly, if loyalty to the
crown and to the family were h9t_h_ required to make Elizabethan society
work, is not the impossibility of satisfying both requirements the nlo_st

radical conjecture Shakespeare could have set before his audience? The

 

Thump v. Horner trial scene indeed seems to be the "fictional realization of a
question,"52 and a disquieting one. The very popularity of Hem VI
suggests that the Elizabethans were not put off by the difficulty of such
questions. Side by side with a penchant for order, Shakespeare's audience
apparently had a large capacity to appreciate and endure the tension posed
by the contradictions of their own culture.

[J D U

Interposed between Gloucester's order that Homer and Thump settle
their dispute through a judicial duel (Act 1. iii.) and the actual combat (Act
11. iii) are two critical events: the trial of Saunder Simpcox, which
demonstrates the absolute indispensability of Duke Humphrey to King Henry;
and the first step in Duke Humphrey's fall -- the arrest and conviction of his
wife Eleanor Cobham for treason and consorting with witches. The later is a
variation on the theme established by the Thump v. Horner trial, in which
various factions exploit criminal charges to further their political ends. The
Simpcox trial, in contrast, provides a comic interlude and a model of judicial
conduct.

A great deal of audience pleasure in watching a dramatized trial
comes from the battle of wits between lawyers, witnesses and judges.
Shakespeare‘s love of “a set of wit“ finds expression in several of his trial
scenes, but the first instance in which Shakespeare portrays trial as a game

of wit occurs in Act 11. i. of 2 Hgnry V1 with Gloucester's cross-examination

73

of Saunder Simpcox. John Henry Wigmore, 53 asserted that cross-
examination was "beyond any doubt the greatest legal engine ever invented
for the discovery of truth." Gloucester demonstrates the engine at full
power. His examination of Simpcox illustrates the importance of rationality
in adjudication, providing a foil for the loss of rationality which is to follow
his murder.

The aspect of trial as game, and of cross—examination particularly as
the stalking of evasive quarry, is emphasized by situating the Simpcox trial
in the midst of a hunting expedition. While the Royal party -- the King,
Queen, Gloucester, Cardinal Beaufort and Suffolk -- are hawking near St.
Albans, a messenger enters, proclaiming a miracle. Saunder Simpcox, . . a
blinde man at Saint Albones Shrine/Within this halfe houre hath receiu'd his
sight,/ A man that ne‘re saw in his life before." (Folio H 126)

King Henry displays the credulous piety that characterizes him
throughout the play: "Now God be prays‘d, that to beleeuing Soules/Giues
Light in Darknesse, Comfort in Despaire“ (Folio H 126) The King, like the
commoners of St. Albans, wants to believe in the miracle. The platitudinous
language that he uses throughout the scene demonstrates his mode of
operation in the world, searching for the religious meaning of experience,
though not in a penetrating way, reflexively applying moral captions to the
scenes in which he does not participate. Gloucester takes a skeptical and
probing approach to Simpcox from the very beginning; the proclamation of
the miracle is a signal to Gloucester to begin the hunt, his first impulse being
to test the truth of Simpcox‘s claim. As soon as Simpcox enters, born on a
chair by the commoners, Shakespeare provides the audience with the
different responses of King and Protector. The King, whose first impulse is to

draw a moral from the event, refers to John 9: 41:

74

Great is his comfort in this Earthly Vale,
Although by sight his sinne be multiplyed. (Folio H 126)

Henry proceeds to play into Simpcox's hand by feeding Simpcox leading

questions which can only elicit answers in support of Simpcox's claim:

Good-fellow, tell vs here the circumstance,

That we for thee may glorifie the Lord.

What, hast thou beene long blinde, and now restor‘d?
(Folio H 126)

Even the little jingle between "Lord“ and "restored" suggests that Henry's elation
Henry is always looking for an occasion to glorify God and he wants Simpcox to
provide it.

Gloucester, on the other hand, skeptically evaluates the testimony as it

comes in;

Simpcox: [l was] Borne blinde, and‘t please your Grace

Wife: Ay, indeede was he.
Suffolk: What Woman is this?
Wife: His Wife, and't like your Worship

Gloucester: Hadst thou been his Mother, thou could'st haue
better told. (Folio H 126)

Gloucester learns immediately that Simpcox's wife m to prove that
he was blind from birth -- wants to prove it badly enough that she will not
let her husband‘s words speak for themselves, but like a chorus, intensifies
his testimony with her own. This, together with the improbability of the
miracle, elicits Gloucester's sardonic comment that Simpcox‘s mother "could
have told better“ whether he was blind at birth. The wife‘s testimony is

hearsay, a form of evidence mistrusted though not excluded in the courts of

7S

Tudor England.

As the scene continues, Simpcox reveals that he is from Berwick in the
north -- far enough away so that witnesses to Simpcox's childhood blindness
are conveniently unavailable. Though the King still attempts to make a
sermon out of the "miracle," Simpcox's story is continually undermined by
the improbability of his wife's embellishments; she even hears the same

voices that Simpcox hears in his sleep:

King: Poore Soule,
Gods goodnesse hath beene great to thee:
Let neuer Day nor Night vnhallowed passe,
But still remember what the Lord hath done.
Queen: Tell me, good -fellow,
Cam‘st thou here by Chance, or of Deuotion
To this holy Shrine?
Simpcox: God knowes, of pure Deuotion,
Being call'd a hundred times, and oftner
In my sleepe,by good Saint Albon:
Who said; Symon, come, come, offer at my Shrine,
And I will helpe thee.
Wife: Most true, forsooth:
And many time and oft myself haue heard aVoyce,
To call him so. (Folio H 126)

In Thg Institutio Oratio, a popular Renaissance book on trial practice,
Quintillian notes that, in the examination of witnesses, "the first essential is to
know your witness. . . for a timid witness may be terrorized, a fool outwitted, an
irascible man provoked and vanity flattered."54 Gloucester takes Simpcox for a
fool, but finds that he is a cagey one, for while Gloucester seeks to rend the fabric
of Simpcox's testimony by attacking its inconsistencies, Simpcox as quickly patches

the story back together again:

Cardinal: What, art thou lame?

Simpcox:
Suffolk:
Simpcox:
Wife:

Gloucester:

Simpcox:

Gloucester:

Simpcox:
Wife:

Gloucester:

Simpcox:

Gloucester:

76

1, God Almightie helpe me.

How cam'st thou so?

A fall off of a Tree.

A Plum-tree, Master.

How long has thou beene blinde?

O, borne so Master.

What, and would'st climb a Tree?

But that in all my life, when I was a youth.

Too true, and bought his climbing very deare.
'Mass, thou lou'dst Plummes well, that would'st
venture so.

Alas, good Master, my Wife desired some
Damsons, and made me climbe, with danger of my
Life.

A subtill Knaue, but yet it shall not serue:
(Folio H 126)

The above speech is missing from Quarto (as is the character,

Simpcox's wife) and it increases the suspense by making Gloucester's first

attempt to trip Saunder a failure. Gloucester at this point is engaged in the

most difficult task of any cross-examiner: getting a witness to prove out of

his own mouth that he is perjuring himself. Gloucester's first attack is not

completely successful because, though Simpcox testimony is farfetched, there

is still a possibility that it could be true. Since the King is obviously attracted

to the f arfetched and miraculous, to convince the King of Simpcox's perjury,

Gloucester has to meet an absolute standard of proof. He has to show that

Simpcox statements are lngically impossible, because even the King will not

believe that contradictory propositions can be true at the same time.

Gloucester lays a trap that capitalizes on Simpcox's tendency to gild the lily.

Feigning doubt about Simpcox ability to see even after the miracle,

Gloucester elicits Simpcox objection that now he can see just fine, and

Simpcox forgets there are certain things which a man who has just received

his sight could not possibly know:

Gloucester: Let me see thine Eyes; winck now, now open them,
In my opinion, yet thou seest not well.
Simpcox: Yet, Master, cleare as day, I thank God and St. Albones.
Gloucester: Say‘st thou me so: what Colour is this Cloake of?
Simpcox: Red Master, Red as Blood.
Gloucester: Why that‘s well said: what Colour is my
Gowne of?
Simpcox: Black, forsooth, Coale-Black, as let.
King: Why then, thou know'st what Colour Iet is
of?
Suffolk: And yet 1 thinke, let did he neuer see.
Gloucester: But Cloaks and Gownes, before this day, a
many.
Wife: Neuer before this day, in all his life!
Gloucester: Tell me Sirrah, what's my Name?
Simpcox: Alas Master, I know not.
Gloucester: What‘s his Name?
Simpcox: I know not.
Gloucester: Nor his?
Simpcox: No, indeede, Master.
Gloucester: What's thine owne Name?
Simpcox: Saunder Simncoxe, and if it please you, Master.
Gloucester: Then, Saunder, sit there,

77

The lying'st Knaue in Christendome.

If thou hadst beene born blinde,

Thou might‘st as well haue knowne all our Names,
As thus to name the seuerall Colours we doe weare.
Sight may distinguish of Colours:

But suddenly to nominate them all,

It is impossible. (FolioH 126-7)

Gloucester has used Simpcox to construct a valid syllogism which
disproves Simpcox’s own testimony and has concealed his attack by working
inside out, from the minor premise, which Simpcox supplies, to conclusion
and major premise, which Gloucester supplies. The minor premise is that

Simpcox can associate colors with their names -- a bit of information

78

Simpcox provides because Gloucester has led him to believe it will support
Simpcox's claims. The major premise, which is clear to everyone in the royal
party, is that a person who has just received his sight could not associate the
names of colors with colors. The conclusion, of course, is that Simpcox has
not recently received his sight, and the implication is that there is no
miracle. The scene exemplifies one of Abraham Fraunces's conclusions in

The Inawiers ngike. Exemplifying the Praecents of Lngike by the Practicse of
' the Common Lawe (1588): "Neither let any man thinke, that because in

 

common meetings and assemblies the wordes and tearmes of Logike bee not
named, therefore, the force and operation of Logike is not there used and
apparent."55 Gloucester's examination is brilliant; he sees where he wants to
take Simpcox and leads him there -- a difficult feat to accomplish in so little
time.

Gloucester's shrewdness does not end in disproving Simpcox's
blindness. He orders Simpcox whipped, and when Simpcox pleads that he
cannot stand, Gloucester notes: "Well sir, we will have you find your legs."
Whether Simpcox is actually lame has not been strictly disproved, but
Gloucester plays the odds. Since Simpcox has lied about being blind, he has
probably lied about his lameness. Of course, when the first lash f alls,
Simpcox jumps out of his chair and runs off the stage.

Gloucester‘s order that Simpcox be whipped through every village
between St. Alban and Berwick invites consideration. In Quarto, Simpcox is
simply designated ”Poore M an," and in the Folio, in a bid for mercy,
Simpcox‘s wife tells Humphrey, "Alas Sir, we did it for pure need.“ Gloucester
does not respond to this at all; he simply issues the order that Simpcox be
whipped and that "this Drab" be taken away. The order accomplishes two

things: it certainly punishes Simpcox, but it also widely publicizes, in a

79

society with poor communications, that Simpcox is a fraud, making it more
likely that he will not be able to work the "miracle" scheme in a different
area. By modern standards the deterrent seems extreme, but it did not to
John Foxe, who commented, "By this it may be seen how Duke Humphrey
had not only an head to discern and disserver truth from forged and feigned
hypocrisy, but study also and diligence likewise was in him to reform that
which was amiss."56 Apparently, Humphrey's actions are also approved by
the commoners on stage, for a direction indicates that as Simpcox runnes
away, he is pursued by the others, who cry "A Miracle."

The King (in Folio) rounds off the episode with another platitude: "O
God, seest Thou this and bearest so long?" (Folio H 127) In Quarto, the King
simply remains silent, which may be a more eloquent statement of
disappointment. King Henry does not reflect on the quality of Gloucester's
cross-examination, as do Gloucester‘s wiser enemies, the Cardinal and
Suffolk. Nor does he learn anything about the analysis of men or situations.
The scene demonstrates Humphrey's indispensability to Henry because of
Henry's incapacity to find the truth and take appropriate action. In Quarto

and slightly different form in Folio, the following exchange appears:

Suffolke: My Lord Protector hath done wonders to day,
He hath made the blinde to see, and the halt to go.
Humphrey: I but you did greater wonders, when you made whole
Dukedoms flie in a day. (Quarto C2 v)

After this, Henry has a line which appears in Quarto but not Folio: "Haue
done I say, and let me here no more of that." (Quarto C2 v). The Quarto line
may indicate Henry‘s irascibility after being denied his miracle, his anger at
Humphrey for hinting that Henry was at fault in marrying Margaret (for

whom those Dukedoms were exchanged), his simple exhaustion with keeping

80

the bickering members of his court under control, or all three. The absence
of the command in F0110 is more consistent with Henry's weakness as a
leader. But either through silence, or his stated unwillingness to consider
past mistakes, Henry demonstrates his lack of capacity for rational thought
or leadership.
(I) D D

Shakespeare uses the apprehension (1. iv.) and punishment (II. iv.) of
Eleanor Cobham, Duchess of Gloucester on charges of witchcraft and treason
for several dramatic purposes. Eleanor, whose ambition to place Gloucester
on the throne is made clear from the beginning of the play, is essentially
entrapped by Suffolk, who tempts her to witchcraft and treason through the
provacateur Hume, and then sets spies to catch her in the act. Eleanor's
conviction is the first step in Suffolk‘s play to discredit Gloucester and
re move him as Protector. After Eleanor's conviction, the nobles do their best
to raise suspicion against Gloucester, and immediately after Eleanor‘s
sentencing, Henry asks Gloucester to step down as Protector, thus re moving
the last prop that holds up his throne. The Folio and Quarto versions of
Eleanor's sentencing are significantly different. The Folio emphasizes
Henry‘s mercy to Eleanor, who could have been executed for both treason
and witchcraft:

King: Stand forth Dame Elianor Cobham,
Glosters Wife:
In sight of God, and vs, your guilt is great,
Receiue the Sentence of the Law for sinne,
Such as by Gods booke are adiudg'd to death.
You foure from hence to Prison, back againe;
From thence, vnto the place of Execution:
The Witch in Smithfield shall be burnt to ashes,
And you three shall be strangled on the Gallowes.

81

You Madame, for you are more Nobly borne,
Despoyled of your Honor in your Life,

Shall, after three dayes open Penance done,
Liue in your Countrey here, in Banishment,
With Sir mm in the Ile of Man.
(Folio H 128)

In Quarto, Eleanor alone is addressed. Her punishment is not
contrasted with that of her confederates, and so Henry's mercy is not so
apparent -- and neither is the way in which the criminal law incorporates
arbitrary class distinctions, sending some to a horrible death and reprieving
others, merely on the basis of birth.57 However, for a Duchess to be so
humiliated was, at the time, quite shocking.58 While in Folio, Henry speaks
politely, even apologetically to Eleanor, in Quarto Henry‘s language is

heavier, almost brutal:

Stand forth Dame Elnor Cobham Duches of Gloster,
and here the sentence pronounced against thee for these Treasons,
that thou hast committed gainst vs, our States and Peeres.

First for thy hainous crimes, thou shalt two daies in London do
penanace barefoote in the streetes, with a white sheete about thy
bodie, and a waxe Taper burning in thy hand. That done, thou
shalt be banished for euer into the Ile of Man, there to ende thy
wretched daies, and this is our sentence erreuocable. Away with
her. (Quarto D r)

The Quarto and Folio emphasize different reactions to Eleanor‘s
banishment. In the Quarto, the King has the first speech after Eleanor exits,
and it is similar in orientation to the speech Henry will give after Peter
Thump‘s victory: he dwells on the connection between divine and human
justice, noting that Henry is lucky Eleanor was apprehended, for God's

retribution sometimes fails on innocent bystanders as well as the guilty:

82

Greeue not noble vnckle, but be thou glad,

In that these Treasons thus are come to light,

Least God had pourde his vengeance on thy head,

For her offenses that thou held so deare. (Quarto D r)

The King's acknowledgement of Gloucester's love for Eleanor increases the
pathos of the scene, but it also ties Eleanor to Gloucester so closely that it may
indicate the King has some unease about Gloucester's loyalty. This impression is
avoided in Folio by giving Gloucester the first speech after Eleanor‘s exit, a speech

which does not occur in Quarto:

Elinor, the Law thou seest hath judged thee,

I cannot iustifie whom the Law condemnes:

Mine eyes are full of teares, my heart of griefe.

Ah Humfrey, this dishonor in thine age

Will bring thy head with sorrow to the ground. (Folio H 128)

In this speech Humphrey affirms his loyalty not to Henry, though that
is implied, but to the Law as a supra-human entity which has its own,
independent existence and to which Humphrey feels his fore most obligation.
This is the entity to which common lawyers felt all government officials, and
the king himself, were subject. Once again, the law of treason forces a
character into the dilemma of choosing between family or national loyalties.
But in Humphrey's case the choice is more complicated, for he is not just
choosing between his sovreign and his family, but between his family and
more abstract ethical obligations. Humphrey‘s self-sacrifice demonstrates
his willingness to apply the laws indifferently, even when the consequences
to himself and those he loves are tragic. Humphrey's decision to let the law
take its course with Eleanor, putting the good of the realm ahead of personal
happiness, defines the essence of political ethics in this play and creates a

standard which Henry (in his marriage to Margaret) and the other nobles fail

83

to meet.

The histories which deal with Eleanor‘s crimes make little mention of
her relationship with Humphrey. Stow, apparently in an attempt to save
Humphrey‘s good name from the tarnish of association states that Eleanor
had used witchcraft to get Humphrey to marry her.59 Shakespeare,
however, needs a Humphrey who has a choice to make and the free will to
make it with Thus from the beginning Shakespeare emphasizes Humphrey‘s
love for Eleanor. In Act 1. it, when Eleanor tells Humphrey her treasonous
dream, he becomes angry, but when she assures him that it is but a dream,
he is ready enough to forgive her, and when he sees her doing penance,
walking barefoot through the f linty streets on her way to exile, she is still

hin duchess and. her pain is his:

Tenne is the houre that was appointed me,

To watch the com ming of my punished Duchesse.
Vneath may shee endure the Flintie Streets

To treade them with her tender-feeling feet.

Sweet Mall, ill can thy Noble Minde abrooke

The abject People, gazing on thy face,

With enuious Lookes laughing at thy shame,

That erst did follow thy prowd Chariot-Wheeles,
When thou didst ride in triumph through the streets.
But, soft, I thinke she comes, and Ile prepare

My teare-stayn‘d eyes, to see her Miseries. (Folio H 129)

Humphrey is tempted by his men and by Eleanor to use force or
influence to free her, and the way he meets this temptation actualizes the
thematic core of the play. When Humphrey's servant offers, "50 please your
grace,.we‘ll take her from the sheriff," once again, Humphrey demonstrates
his commitment to legal process rather than private justice by replying: "No,

stirre not for your liues. Let her passe by." Eleanor tries to use shame to

84
force action by Humphrey:

Ah. Gloucester teach me to forget my selfe.

For, whilst I think I am thy married Wife

And thou a prince, Protector of this Land,
Methinks I should not thus be led along,

Mayl'd vp in shame, with Papers on my back,
And follow‘d with a Rabble, that reioyce

To see my teares, and heare my deepe-fet groanes. . . .
Sometime Ile say, I am Duke Humphrey‘s Wife,
And he a Prince, and Ruler of the Land:

Yet so he rul‘d, and such a Prince he was,

As he stood by whilest I, his forlorn Duchesse,
Was made a wonder and a pointing-stock

To euery idle Rascall follower. . . . (Folio H 129)

 

Both Eleanor and his men encourage Humphrey to adopt the tactics of
the worst characters in the play, but Humphrey's refusal to exercise illegal
power provides a pattern for ethical political behavior. Humphrey replies
that if he were to rescue her, she would yet be guilty and then he also would
be "in danger for the breach of Law." (Folio H 130); This phrase has two
senses The most obvious is that if Humphrey rescues his wife, he will have
broken the law, and he will be in danger of punishment. The comparable
line in Quarto [“Should I attempt to rescue thee from hence,/ I should incurre
the danger of the law." (Quarto D2 v)] also allows that meaning. The Folio
line, however, can be given an additional twist: that Gloucester would be in
danger of breaching the Men of law, the rnlg of law, causing fundamental
damage to the body politic. The breach of Law as an entity and the
. consequences of that breach is the subject of the 2 Henry VI and certainly a

major concern of both Shakespeare‘s tetralogies, Measure for Measure and

 

The Merchant of Venice. Mixed with Humphrey's admirable self-restraint,

however, is a fundamental misconception about the power of innocence:

85

Ah Nell, forbeare; thou aymest all awry.

I must offend before I be attainted:

And had I twentie times so many foes,

And each of them had twentie times their power,
All these could not procure me any scathe

So long as I am loyall true and crimelesse.
Would‘st haue me rescue thee from this reproach?
Why, yet thy scandall were not wipt away,

(Folio H 129-30)

Though Gloucester's ethical commitment is ad mirable, it has a naive
aspect, which is not totally in character. Gloucester apparently believes in
Law as a natural or divine entity which through the human agency of trial
distributes infallible justice. Gloucester's concept of law in this speech is
similar to the medieval theory on which trial by battle was founded -- God
will take an active role in the process of adjudication, vindicating the
innocent and punishing the guilty. Peter's doubts and York‘s irony
challenged that concept and Gloucester's arraignment and murder will
challenge it further, as Shakespeare brings medieval concepts of order into
collision with machiavellian pragmatism. The lesson suggested by
Humphrey's murder is that the rule of law is always in danger of slipping
away, and mere innocence is no guarantee of an acquittal. Defendants must
defend themselves vigorously. Shakespeare's continuing concern with the
vulnerability of innocence is demonstrated by its recurrence in the late play,
Henny VIII, in which Henry VIII warns Cranmer not to rely on innocence as

a defense:

Cranmer: Most dread liege,
The good I stand on is my truth and honesty. . . .
I fear nothing
What can be said against me.

86

King: Know you not
How your state stands 1‘ th‘ world, with the whole
world?
Your enemies are many, and not small; their practices
Must bear the same proportion, and not ever
The justice and the truth 0' th' question carries
The due 0' th‘ verdict with it. At what ease
Might corrupt minds procure knaves as corrupt
To swear against you? Such things have been done.
You are potently oppos‘d and with a malice
Of as great size. Ween you of better luck,
I mean in perjur'd witness, than your Master,
Whose minister you are, whiles here he liv'd
Upon this naughty earth? Go to, go to!
You take a precipit for no leap of danger,
And woo your own destruction. (V. 1. 121-40)

Humphrey, as an experienced judge, should know more of "this
naughty earth" than anyone in the play. Yet he goes, with little struggle,
toward his destruction, exhibiting a passivity which seems out of character.
Of course Humphrey's belief in the law is never completely contradicted, for
he is murdered before he gets to trial. But the point is that Humphrey's
innocence will help him only in a fair trial, and in England, fair trial has
become extinct.

D E] I]

The arraignment of Gloucester, in Act III, scene I, is the turning point
of the play. The King's failure to immediately dismiss proceedings against
Gloucester, despite his confidence in Gloucester‘s innocence, proves that he is
too weak to rule. In Folio, there are 92 lines before Gloucester enters and is
accused by Suffolk of treason. Those lines, which begin Gloucester's
arraignment, consist of arguments by the Queen, Suffolk, the Cardinal, York

and Buckingham against Gloucester's loyalty. The persuasive strategies

adopted by the speakers reveal their skill in rhetoric, their knowledge of the

87

king‘s weaknesses, and their disregard for the truth. Their main aim is to
establish the probability that Gloucester is seeking the throne by developing
the topics of Motive and Manner of Life, which Pseudo-Cicero sets forth in
Ad Herrenium. The motive, that Gloucester has "the hope . . . of winning

advantages“ 60

is assumed and then "every effort [is made] to relate the
defendant‘s manner of life to the motive.“ 61

Although previously the Queen had accused Gloucester of ambition
(II. 1. 32) and described him as "surly" and "haughty" (1. ii. 49 and 69), now
that it serves her turn, she emphasizes the humility of his manner before his
wife's trial, urging that "the change“ in Gloucester's character indicates

treason is brewing in his mind:

Can you not see? Or will ye not obserue

The strangenesse of his alter‘d Countenance?

With what a Majestie he beares himselfe,

How insolent of late he is become,

How prowd, how peremptorie, and vnlike himselfe?

We know the time since he was mild and affable. (Folio H 130)

Her following arguments are that Gloucester is dangerous ("Humfrey is
no little Man in England") partly because "by flatterie he hath wonne the
Commons hearts"; that he is next in line for the crown, “And should you fall,
he is the next will mount" The inference the Queen wishes the King to draw,
of course, is that anyone next in line of succession is probably plotting
treason -- that ambition is a natural law which cannot be suspended by the
exercise of reason or restraint. In making this argument, the Queen simply
projects her own passions onto Gloucester. Suffolk supports the argument
with reference to Eleanor's “devilish practices“ -- Gloucester must either

have encouraged her or known of the practices because he had a crown to

88

gain if they worked. It's not a bad argument -- quite similar to Gloucester's
argument that Horner's treason breeds fear of suspicion in York. The
difference is in the response being sought. Gloucester merely disqualified
York for a particularly sensitive public office, making no attempt to indite
him merely on the basis of association. Suffolk seeks Gloucester‘s life.

At this point, Suffolk's argument takes a completely illogical turn.
While the Queen premised Gloucester's treason on his current insolence and
proud, peremptory behavior, Suffolk premises it on Gloucester's current

sub missiveness:

Smooth runnes the Water where the Brooke is deepe
And in his simple shew he harbours Treason.

The Fox barkes not, when he would steale the Lambe.
(Folio H 130)

Thus. the Queen and Suffolk argue from opposite and
contradictory premises to the same conclusion, grabbing at any
possible interpretation of the facts to support their argument. This
inconsistency, however, is not easy to spot, since several arguments
intervene between the Queen's assertion of Humphrey's change from
humility to haughtiness and Suffolk's assertion of Humphrey‘s
continuing, but false, humility The Cardinal, York and Buckingham
add nothing to the argument against Humphrey but rhetorical

questions and unsupported predictions:

Cardinal: Did he not, contrary to forme of Law,
Deuise strange deaths for small offenses done?
Yorke: And did he not, in his Protectorship

Leuie great summes of Money thorough the Realme,
For Souldiers pay in France, and neuer sent it?
By meanes whereof, the Townes each day reuolted.

89

Buckingham: Tut, these are pretty faults to faults vnknowne
Which time will bring to light in smooth Duke Humfrey.
(Folio H 130)

The King is less convinced by these arguments than overpowered by
the solid wave of opposition to Humphrey. His reaction to Somerset‘s news
of the loss of France, which preceeds Humphrey‘s entrance, typifies the
fatalistic attitude he will take to Gloucester: "Cold Newes, Lord Somerset: but
God‘s will be done." (Folio H 131)

With Gloucester present to defend himself, the weakness of the case
against him becomes obvious. The accusations against him are based on

mere speculation, which Gloucester points out in reply to York:

York: ‘Tis thought, my Lord,

That you tooke Bribes of France.

And being Protector, stay'd the Souldiers pay,

By meanes whereof, his Highnesse hath lost France.
Gloucester: Is it but thought so?

What are they that think it?
(Folio H 131)

As Gloucester implies, anything can be thought. "What are they that
think it“ has a double meaning: Why don‘t you produce these witnesses and
what is the quality of high; loyalty? Gloucester simply destroys the case
against him by demanding that proof be brought forth:

So helpe me God, as I have watcht the Night

1, Night by Night, in studying good for England.

That Doyt that ere I wrested from the King

Or any Groat I hoorded to my vse,

Be brought against me at my Tryall day. (Folio H 131)

Like many treason defendants, Gloucester wants witnesses and proof

90

produced so that he may at least have a chance to refute the charges -- to
confront the case against him, but York implies in his next charge that
Gloucester does not deserve procedural fairness, for he himself did not treat
criminal defendants fairly, but "did deuise/Strange Tortures for Offendors,
never heard of,/That England was defam‘d by Tyranny." (Folio H 131) Of
course, York is assuming the very point at issue, Gloucester‘s guilt, for the
purpose of denying him procedural fairness -- not an unfamiliar argument
for Tudor prosecutors of treason to use, and one which, as we shall see in
chapter three, Coke used against Raleigh during Raleigh's treason trial.
While Gloucester refutes, one by one, the charges against him, the King
stands helplessly by. Henry abdicates authority in this scene. He does not
respond to Gloucester's greeting and remains silent for forty-three lines
while the nobles make accusations against Gloucester. Though he should be

in command, he has only three lines during the whole proceeding:

My Lord of Gloster, 'tis my speciall hope
That you will cleare your selfe from all suspense.
My Conscience tells me you are innocent. (Folio H 131)

Gloucester seems to realize that at this point, England is on an
irrevocable course toward disaster. In Gloucester‘s parting speech to Henry
there is no evidence of the idealism Gloucester had displayed in leaving

Eleanor:

Ah gracious Lord, these dayes are dangerous:
Vertue is chokt with foule Ambition,

And Charitie chas'd hence by Rancours hand;
Foule Subornation is predominant,

And Equitie exil'd your Highnesse Land. . . .

I, all of you haue lay'd your heads together,
My selfe had notice of your Conuenticles,

91

And all to make away my guiltlesse Life.

I shall not want false Witnesse, to condemne me,

Nor store of Treasons, to augment my guilt:

The ancient Prouerbe will be well effected,

A staff is quickly found to beat a Dogge. (Folio H 131)

Beaufort's response is again typical of treason prosecutors. The
defendant should not be listened to since, if he were innocent, he would not

be a defendant:

My Liege, his rayling is intolerable.

If those that care to keepe your Royall Person

From Treasons secret Knife, and Traytor‘s Rage

Be thus Vpbraided, chid, and rated at,

And the Offender graunted scope of speech,

'Twill make them coole in zeale unto your Grace. (Folio H 131)

The argument is obviously circular, but Henry does not come to Gloucester's
defense as Henry VIII, a strong king, comes to the defense of the innocent
Cranmer. Henry VI's passivity, his incapability of protecting the ad minis-
tration of law or filling the role of judge, guarantees that Gloucester will
come to a bad end, with disastrous results for the kingdom, and for Henry

personally. As Gloucester predicts:

Ah. thus King Henry throwes away his Crutch
Before his Legges be firm to beare his Body. (Folio H 131)

Henry gave up his crutch, ironically, when he first accepted the staff from
Gloucester. In De Renublica Anglorum (1583), Thomas Smith defined a King
as a person who "by succession or election commeth with the good will of
the people to that governement, and doth ad minister the common wealth by
the lawes of the same and equitie. . 62 While Richard II and Richard III go

92

wrong through their own assertion of arbitrary power, Henry VI goes wrong
through his failure to ad minister the laws of the commonwealth, and hence,
to m; the assertion of arbitrary power. The two Richard's become
tyrannts, but Henry VI fails as guardian.

At this point, Humphrey's doom is not quite sealed. The plotters have
a dilemma. It would look better if Humphrey were condemned under the
color of legality. The problem is, their case is weak, Humphrey is a

dangerous opponent, and Henry V1 is not convinced of his guilt:

Cardinal: That he should dye is worthie pollicie;

But yet we want a Colour for his death:

"I‘is meet he be condemn‘d by course of Law.
Suffolk: But, in my minde, that were no pollicie.

The King will labour still to saue his Life,

The Commons haply rise, to saue his Life;

And yet we haue but triuiall argument,

More than mistrust, that shewes him worthy death.

(Folio H 132)

The conspirators recognize the danger to them of rational inquiry into the
indictment, and Suffolk's anxiety over their "trivial argument“ emphasizes
the argument, which pervades the play, that the rule of law nan work, but
only if the king exercises power to preserve the laws and procedural

fairness.
Cl C) [3

Under the direction of Suffolk and Beaufort, and with the complicity of
Margaret, and York, Gloucester is murdered just before his trial. The
discovery of the murder by a pale Suffolk (who demonstrates the utility of
acting talent in politics) begins an informal inquest into Humphrey's death
which soon turns into a more formal legal proceeding in which the King,

acting as judge, banishes Suffolk. The episode once again demonstrates

93

Henry‘s inability to rule as he is bombarded with competing interpretations
of Humphrey's death by power groups that would like to exercise the office
of judge: Margaret and Suffolk, Salisbury and Warwick, and the commons.

Margaret's "interpretation“ is mainly aimed at protecting herself and
Suffolk and raising enough red herrings to distract Henry from the real issue
at hand, which is the guilt of Suffolk, Gloucester‘s avowed enemy. First,
Margaret directs Henry's attention to the most easily falsified evidence in
favor of her own and Suffolk's innocence -- their innocent de meanors; then
she asserts how she vignLd act if only it could bring Gloucester back, a

statement about her own capacity to play a part which is suspicious in itself:

Why do you rate my Lord of Suffolke thus?

Although the Duke was enemie to him,

Yet he, most Christian-like, laments his death:

And for myselfe, Foe as he was to me,

Might liquid teares or heart-offending groanes

Or blood-consuming sighes recall his Life;

I would be blinde with weeping, sicke with groanes.
Locke pale as Prim-rose with blood-drinking sighes,
And all-to haue the Noble Duke alive. (Folio H 133-4)

Margaret then attempts to anticipate arguments that she herself is guilty of
the murder. Margaret‘s probable guilt, like Suffolk's, lies in her motivation
to kill Gloucester, so Margaret, superb rhetorician that she is, makes the very
obviousness of her motive her defense. Why would she want to endure the
public suspicion and calumny that will be sure to fall on her as a result of
Gloucester‘s death? The very public knowledge of her hatred of Gloucester

makes it improbable that she is involved in his death:

What know I how the world may deeme of me?
For it is knowne we were but hollow Friends:

94

It may be iudg‘d I madethe Duke away:

So shall my name with Slanders tongue be wounded,
And Princes Courts be fill'd with my reproach:

This get I by his death: Ay me, vnhappie.

To be a Queene and Crown‘d with infamie (Folio H 134)

The second wing of Margaret's strategy is that noted by Rosalind in A;
Y_ou_ MM: "that woman who cannot make her fault her husband‘s
occasion, let her never nurse her child herself, for she will breed it like a
fool!" (Act IV. i. 173-6) Once Margaret proclaims that she will be blamed for
Gloucester's death, and gets no response from‘Henry, who is focusing all his
attention on the loss of Gloucester, she has an opportunity to berate him for '
disloyalty to her and for not sympathizing with her wronged innocence. It is
not a reasoned argument, but it is shrewdly calculated to cloud Henry's mind

with guilt and to immobilitze him:

Is all thy comfort shut in Glosters Tombe?

Why, then, Dame [Margaret] was neere thy ioy.
Erect his Statue, and worship it,

And make my image but an Ale-house signe.

Was I for this nye wrack'd Vpon the Sea,

And twice by aukward winde from England‘s banke
Droue back againe vnto my Native Clime. . . .

Aye me, I can no more: Dye [Margaret]

For Henry weeps that thou dost live so long.

(Folio H 134)

The second interpretation of Duke Humphrey's death comes from the
commons, who, apparently on the basis of the well-known antagonism of
Suffolk and Beaufort for Gloucester, have already made up their minds --
correctly -- that Suffolk and Beaufort are guilty and that no one has made
any strenuous inquiry into Humphrey‘s death. Warwick sums up the

interpretation of the commons:

95

It is reported, mighty Souereigne,

That good Duke Humfrey Traitorously is murdred
By Suffolke and the Cardinall Beaufords meanes:

The Commons like an angry Hiue of Bees

That want their Leader, scatter up and downe,

And care not who they sting in his reuenge.

My selfe haue calm‘d their spleenfull mutinie,

Vntill they hear the order of this death. (Folio H 134)

The interpretation of the commons is supported by that of Warwick,
who at King Henry's request, views the body of Gloucester. Gloucester‘s

corpse becomes a text in which Warwick, as coroner, reads murder:

. . . his face is blacke, and full of blood:
His eye-balles further out, than when he liu‘d,
Staring full gastly, like a strangled man:
His hayre vprear‘d, his nostrils stretcht with struggling:
His hands abroad display‘d as one that graspt
And tugg'd for Life, and was by strength subdude.
Locke, on the sheets his haire (you see) is sticking,
His well-proportion'd Beard, made ruffe and rugged,
Like to the Summers Come by Tempest lodged:
It cannot be but he was murdred heere,
The least of these signes were probable. (Folio H 134)

Warwick’s choice of words -- that the least of the signs on Gloucester
"were probable" evidence of his murder is important, because certainty is
never available to any fact finder. The actions of judges, and kings, can only
be based on probability. Yet Henry makes no decision. He is only
comfortable with the "certainty" of his religious belief s, not the probabilities
of government. It is only the com mons' threat to lynch Suffolk that forces
Henry to act by finally banishing Suffolk. The willingness of the commons to

exert extreme pressure on their king indicates the widespread awareness of

96

how Henry's government has broken down. This perception sets the stage
for the Cade Rebellion. With no power to support the law, the realm
becomes lawless. ,

Act III ends with a standard Tudor reminder of the ultimate mn-
sequences of plotting against the King. Cardinal Beaufort, stricken with guilt,
despairs and takes poison. He dies a suicide, sure of damnation. "And
therefore whosoever rebelleth agaynst any ruler either good or bad,
rebelleth against God, and shalbe sure of a wretched ende: For God cannot
but maintein his deputie." On his deathbed, in his final moment, Beaufort
imagines himself on trial, as a defendant before God. The presence of Henry,
God's deputy on earth, the fountain of justice, and therefore, the ultimate
judge, seems to conjure in Beaufort's brain the final accounting he will have
to make after death. Even under these circumstances, the Cardinal, in his

delerium, tries to lie his way out of trouble:

Bring me vnto my Triall when you will.

Dy'de he not in his bed? Where should he dye?

Can I make men liue where they will or no?

0 Torture me no more, I will confesse.

Aliue againe? Then shew me where he is,

Ile giue a thousand pound to looke Vpon him.

He [Gloucester] hath no eyes, the dust hath blinded them.
Combe downe his haire; looke, looke, it stands vpright,
Like Lime-twigs, set to catch my winged soule:

Giue me some drinke, and bid the Apothecarie

Bring the strong poyson that I bought of him. (Folio H 136-6)

Beaufort's death, and his damned soul, caught on the lime twigs of
murdered Gloucester's hair, provided Shakespeare‘s audience with the
standard Tudor emblem for the fate of traitors. It is no doubt satisfying to

watch Cardinal Beaufort get his just desserts and perhaps Shakespeare and

97

his audience found it necessary to pay homage to the Tudor government's

position on treason before proceeding to the blackly comic treatment of

Cade‘s Rebellion. ~
(:1 D E]

In Act IV of 2 Henry VI, which encompasses the Cade Rebellion. three
trials occur in Folio: there is an inquiry into Cade's paternity, and Cade
himself twice puts humanism and law on the dock, first in the trial of the
clerk, Emmanuel, and then in the trial of the judge, Lord Say. In Quarto, the
law and lawyers are additionally put on trial in the person of one
Sargeant-at-Law. To appreciate the significance of these trials, we need to
understand the responses of Shakespeare's audience to the Rebellion as a
whole. Arriving at n Tudor interpretation of the Cade Rebellion, however, is
no easy task. Shakespeare's portrayal of the Cade Rebellion is complex, and
from the very beginning invites multiple, sometimes conflicting,
interpretations. The ideology which Cade offers in support of his rebellion is
at times so patently absurd and at odds with itself and Cade's own actions,
that many critics have viewed Shakespeare‘s presentation of the rebellion as
a straight forward piece of Elizabethan propaganda, holding up to ridicule
those of the lower orders who would presume to rise above their assigned
places and challenge the government.63 However, although Shakespeare‘s
portrait of Cade is very black indeed, and far less charitable than that of Hall
or Holinshed, Shakespeare's treatment of Cade‘s followers, and the
grievances which Cade articulates, are far more complicated than can be
explained by a theory that Shakespeare merely followed the official line
against rebellion.

Cade's followers display such a volatile mix of sagacity and stupidity,

radical egalitarianism and habitual subservience, that one often does not

98

quite know what to make of them. In addition, though the rebels articulate
their grievances only in the most absurd ways, it would have been evident
to Shakespeare's audience that they have legitimate grievances. Abuses of
the legal system such as benefit of clergy, the granting of licenses and
patents to royal favorites, and the oppressiveness of social stratification
galled not only Cade‘s rebels but many Elizabethans. Any interpretation that
the Cade Rebellion functions simply as a conservative lampoon of plebean
ignorance and manners founders on two obvious points: First, the Cade
Rebellion is presented as a mdu_ct_ of the aristocracy, the abuses of the
nobles having generated the anger which powers the rebellion and the Duke
of York having commissioned Cade to foment the uprising. Second, the
nobles offer no superior standard of conduct by which the rebels can be
judged. Like children picking up on their parents' mannerisms, Jack Cade
and his rebels reflect in more grotesque and obvious behavior, the actions
and ideological posturing of their feuding Yorkist and Lancastrian rulers.“
On the other hand, it is also impossible to read the Cade Rebellion as a
mere subversion of aristocracy, since Cade seems intent on setting up his
own aristocracy in the same speechs in which he proclaims that all shall be
held in common. The incoherence of Cade‘s program of political reformation
is perhaps its most obvious characteristic. The main planks in Cade's
platform are egalitarianism, democracy, and communism -- hierarchy,

tyranny and monopoly :

Be braue then; for your Captaine is Braue, and

Vowes Reformation. There shall be in England seuen
halfe peny Loaues sold for a peny: the three-hoop‘d pot,
shall haue ten hoopes; and I wil make it Fellony to drink
small Beere. All the Realme shall be in Com mon, and in
Cheapside shall my Palfrey go to grasse. (Folio H 138)

99

Despite his pledge that everything will be held in common, Cade himself
wants to be king, and at the conclusion of the above speech, Cade's followers
shout "God save your Majesty!" Cade concludes that he will abolish
distinctions in rank supported by sumptuary laws, but again, contradicts his
ideology of egalitarianism in one breath: “There shall bee no/ mony, all shall
eate and drinke on my score, and I will/ apparrell them all in one Liuery,
that they may agree like/ Brothers, and worship me their Lord." (Folio H
138; underlining added). Cade plays on the legitimate grievances of the
commons while at the same time promising to pertetuate those grievances
himself. Though the aristocracy which Cade promises to abolish is supported
by licences and monopolies, Cade begins to establish his own aristocracy by
granting Dick the butcher a monopoly for his valiant actions in behalf of the

revolution, going so far as to rearrange the calendar on Dick's behalf.

Cade: Where's Dicke, the Butcher of Ashford?
Butcher: Heere, sir.
Cade: They fell before thee like Sheepe and Oxen, &
thou behaued'st thy selfe as if thou hadst beene in
thine own Slaughter-house: Therefore thus will I
reward thee,the Lent shall be as long againe as it is, thou
shalt have License to kill for a hundred lacking one.
Butcher: I desire no more.
Cade: And, to speake truth, thou deseru'st no lesse.
(Folio H 139)

The edge of this satire cuts in two directions. The Cade rebellion
becomes a running satirical commentary on itself, as it progresses, but it also
satirically undermines the conduct of the nobles by mirroring it in a social
order to which the nobility thinks itself superior. Most immediately, Cade

demonstrates the duplicity and venality of his own rebellion. That monopoly

100

is inconsistent with an economy that lacks currency -- or in which all people
eat and drink on the government‘s score -- does not apparently arouse any
sense of unease in Cade‘s followers. Furthermore, in Elizabethan terms, Cade
is attempting to do the twentieth century equivalent of repealing the law of
gravity. He is subordinating divine law, which would determine the length
and character of Lent, to a human positive law, manipulating church seasons
at will. Yet divine law was universally recognized in Europe as being
superior to any human decree. At the same time, however, that Cade in his
ignoble manner makes these mistakes blatant and ridiculous, he merely
recapitulates the actions of artistocracies which reward their own generals
(or "butchers") with titles and monopolies, and devise church calendars and
create saints with political advantage in mind. When Cade performs it, the
granting of monopolies can be seen not only as the act of an ignoble person,
but as an ignoble act. In this light, Cade‘s grant becomes a critique of

Elizabeth‘s increasing unpopular economic policy:

. . . hostility to patents mounted towards the end of the
[sixteenth-] century. Robert Bell had protested against them in
the Parliament of 1571; but at that time his seems to have been
an isolated voice. In the 15803 and 15903 objections were
made by J.P.s, town corporations, the Grocers' Company, and the
City of London. Strong protests were lodged in the
parliamentary session of 1597. The Crown promised reform
and a few patents were withdrawn. It was not enough.
Monopolies became the main issue in the Parliament of 1601,
occupying four full sessions and two meetings of committee.
One member said that the grievance of monopoly ‘bringeth the
general profit into a private hand; and the end of all is beggary
and bondage to the subject“. Monopolies were thought odious
because they raised prices and brought unemployment. No
member tried to defend them on principle.

lOl

Elizabeth's granting of monopolies, as monarch, may have lacked the comical
inconsistency of Cade‘s economic policy, but on the basis of venality, there is
little to distinguish them.

The Cade rebellion could more easily be interpreted as a simple piece
of artistocratic propaganda if there were a virtuous aristocracy to serve as a
foil to Cade and his men. But there is none, and the result is that Cade's
rebellion collectivizes and democratizes only one thing: the responsibility for
English civil war. Greed, ambition and stupidity know no class boundaries in
2 Henry VI. The Cade rebellion has a leveling effect, collapsing the moral
basis of the Tudor hierarchical scheme and placing everyone on the same
animalistic level where reason is overcome by appetite, but appetite knows
no bounds. The difference between Suffolk, Somerset, Margaret, York and
Cade is one of style only.

Of course, Cade does go farther than anyone else in the play in
attempting to set up an absolute monarchy. He even kills one of his own
men for failing to address him as king. In fact, Dick the Butcher's suit to

Cade is that Cade assume the powers of a tyrannt:

Butcher: I haue a suite unto your Lordship.
Cade: Bee it a Lordshippe, thou shalt have it for that

word.
Butcher: Onely that the Lawes of England may come out of
your mouth. (Folio H 140)

Cade‘s claim to royalty discredits the sincerity of his rhetoric from the very
beginning, and the play seems to demonstrate that the craving for status and
wealth will assert itself despite human rhetoric or effort to the contrary --
that although social difference breeds strife, the desire for the status based

on difference is as indelible a part of human nature as original sin, dooming

102

the human beings to rebel against systems which it is their destiny to
perpetuate. The Cade Rebellion, like the Wars of the Roses, is in many ways
just another manifestation of the "mimetic desire,"66 to get what someone
else has, simply because someone else has it.

Given their own tendencies toward social stratification, the rebels
attempt to wipe clean the social slate so that a new Utopia can be erected
becomes all the more ironic. The first step in the process is the destruction
of all printed records, especially laws. Thus Cade issues the order:

"80, sirs: now go some and pull down the Sauoy2/Others to'th lanes of Court:
downe with them all." (Folio H 140) But merely erasing the written memory
of the law is not enough, since there are lawyers alive who possess
unwritten memories. Dick's suggestion.'“l‘he first thing we do, let‘s kill all the
Lawyers," and Cade‘s response, "Nay, that I meane to do," indicate that the
the erasure of human memory is also part of their program to clear a
discursive space for whatever law Cade wants to impose. In this instance,
what Shakespeare is putting on stage resembles much more closely the John
Ball rising of 1381 and suggests that Shakespeare was not merely relying on
historical accounts of the Cade rebellion, but was conflating the rebellions of
1381 and 1450 to create a paradigmatic rebellion of the type which still
threatened Elizabeth, but failed to occur on a large scale during her reign.
Rodney Hilton‘s description of how the 1381 rebels treated lawyers

furnishes a subtext for Shakespeare's portrayal of Cade:

When the rebels in London attacked the Temple. . . it was
already tenanted by lawyers, whose records they burnt. They
attacked not only the lawyers themselves -- attorney, pleaders,
clerks of the court -- but others closely associated with the
judicial processes. . . . This hostility to lawyers and jurors and to
legal records was not of course peculiar to the Londoners. The

103

widespread destruction of manorial court records is well known.
The Essex rebels beheaded jurors acting on . . . inquests. . . .
[Tlhere was a general threat against all involved in the
processes of the law 'not only apprentices [that is barristers
below the rank of serjeant] but also old justices and all the
kingdom‘s jurors'.

The supposed confession of Jack Straw. . . contains a statement
that having eliminated (among others) the learned, that is the
lawyers, the rebels would make law at their own will by which
everybody would be ruled. Many of the other chroniclers noted
the rebels' hostility to lawyers. The Evesham author of the life
of Richard II took the view that the killing of the men of law
was intended to guarantee that no one would survive who
would have knowledge of either the old or the new. These
indications of rebel opinion, insofar as the reports of the hostile
chroniclers are not to be dismissed as mere hysteria, suggest an
unusually radical attitude to existing law, which as we have
seen, was sometimes thought by the peasants to be a shield
rather than a weapon turned against them. But the rebels'
actions in 1381 fit in with these suggestions that some of them
were thinking of creating a new law, and that even more of
them wanted to destroy all relics of the old. There was
wifespread destruction of manorial records from Norfolk to
Kent; the books and records of the lawyers in the Temple were
burnt; lawyers and juror were killed or their houses pillaged
wherever they could be found.68

Superficially, the rebels seem blissfully unaware that they are
beginning the cycle of law making once more, and will inevitably end in the
same or worse position after the revolution. Perhaps the knottiest mystery
in Shakespeare's dramatization of the Cade Rebellion, however, is not the
inconsistencies of Cade's egalitarian rhetoric, nor the failure of some of Cade's
followers to see those inconsistencies, but rather the willingness of several
men to participate in the rebellion, even thongh they do see the
W. From the very beginning of the Rebellion, Dick the Butcher

and Smith are n0t taken in by Cade's speeches. They know too much of the

104
truth, as they reveal in their asides:

Cade: My Father was a Mortimer.

But: He was an honest man, and a good Bricklayer.

Cade: My mother a Plantagenet.

But: I knew her well, she was a Midwife

Cade: My wife descended of the Lacies.

But: She was indeed a Pedlar's daughter, 8:. sold many
mes.“

Cade: Therefore am I of an honorable house.

But: I by my faith, the field is honourable, and there
was he borne, vnder a hedge: for his Father had
neuer a house but the Cage. . . .

Cade: I fear neither sword nor fire.

Smith: He neede not feare the sword, for his Coate is of
proofe.

Dick: But me thinks he should stand in feare of fire, be-
ing burnt i‘ th' hand for stealing of Sheepe.
(Folio H 138)

When the Butcher pr0poses that the laws of England only come out of Cade's
mouth, the response of the rebels to Cade is anything but unified. John and
Smith, two other rebels, completely undermine the the notion that the rebels

are blind, uncritical followers of Cade:

John: Masse ‘twill be sore Law then, for he was thrust
in the mouth with a Speare, and 'tis not whole yet.
Smith: Nay I_o_h_n, it wil be stinking Law, for his breath
stinkes with eating toasted cheese.
Cade: I haue thought vpon it, it shall be so. Away,
burne all the Records of the Realme, my mouth shall be
the Parliament of England.
John: Then we are like to haue biting Statutes,
anesse his teeth be pull'd out. (Folio H 140)

The very incoherence of Cade's rhetoric and the contradictory

105

response of the rebels makes a simple interpretation of the Rebellion
impossible. Weimann succinctly describes the structure of "Jack Cade's
political Saturnalia" as “a case of the mocker mocked, the inversion of the
inverter." 69 That Cade the inverter is himself inverted, however, does not
render invalid everything he has to say. Because of this complexity, the
"meaning" of the rebellion can be interpreted in many ways. Indeed,
Shakespeare presents some of these interpretations nn m, as several
characters (nobles, such as Clifford and the Staffords, Lord Say, the rebels, as
we have seen) comment on the action. Each of these interpretations is
inadequate as a complete explanation of the rebellion, but as each
interpretation is set in tension with the others, a fuller understanding of
rebellion and its consequences is made available to the audience. It seems
likely that contemporary audiences could have seen Shakespeare's Cade
Rebellion as:

(I) A send-up of uneducated commoners comically but dangerously
out of place in their presumption to govern England better than the nobility
and to set up a democratic government;

(2) A satire of the nobles themselves in the form of a comic
anti- masque, in which the actions of feuding magnates are reflected in the
rebellion of the common rabble;

(3) A violent display of plebean anger and retribution, fueled by
legitimate grievances, which operates (consciously or unconsciously) for at
least part of Shakespeare's audience as dramatic wish fulfillment;

(4) A serious examination of what happens to a political body when
central government fails and appetite, in the form of ambition and greed,
triumphs over reason, and

(5) An examination of law, language and dress as instruments and

106

markers of social differentiation whose value as signifiers is utterly
dependent on political power.

This last interpretation sounds like a modish capitalization on
deconstructive theory. However, it is a historical com monplace, barely worth
repeating, that Shakespeare‘s society placed tremendous emphasis on
hierarchy and status -- on fine gradations of social "difference," and that
threats to the system of differences which defined the structure of society
(such as actors who doned “royal" garments in seeming disregard of the
sumptuary laws, revellers who went too far in poking fun at the nobility, or
at a later time, Quakers who would not doff their hats) were often put down
brutally. The paradoxical theme which most consistently runs through the
Cade Rebellion is that it is an attack on social difference, not merely when
Cade is belting out communist and egalitarian dog ma, but even when Cade is
demanding that he be called Lord, asserting his own ancestral claim to the
throne via the Mortimers, and granting monopolies.

Given the recognized potential of drama for making political
statements, and the desire of playwrights and actors to protect themselves
from the consequences of politically dangerous interpretations (even when
such interpretations may have been intended) there is a genuine possibility
that Q of these multiple and perhaps contradictory interpretations of 2
Hengg VI were available to its audiences. It is not improbable that
Shakespeare intended this range of meanings or that the audience
recognized them in whole or in part. That Shakespeare and his audience
were conscious of multi-layered meaning, and particularly political meaning,
is amply demonstrated by the topical readings which Shakespeare‘s
contemporaries often gave to plays,70 and also by Shakespeare‘s own

examination of the uses and dangers of drama in such instances as the

107

Mechanicals' production of "Pyramus and Thisbe" and Hamlet's production of
"The Murder of Gonzago." Hamlet's “Murder of Gonzago“ demonstrates the
use of drama as a way of making indirect accusations and political
statements, and Claudius, as audience, demonstrates a willingness to "read"
the play as political "allegory," recognizing himself either in the murderer
(who pours poison in the ear of a king), or the murdered (who is killed by
his nephew) or both. The Mechanicals recognize the danger to an acting
company of such readings, and employ various dramaturgic devices to
deflect interpretations which could offend their royal audience and result in
their own executions.

The Mechanicals make the lion in "Pyramus and Thisbe" less mimetic,
because "a lion among ladies is a most dreadful thing. For there is not a
more fearful wildfowl than your lion living." (111. i. 27-9) The solution is
that Snug the joiner will let his face show, growl meekly, and assure the
ladies that he is only an actor. The parody which "Pyramus and Thisbe"
unintentionally becomes (at least, from the Mechanicals standpoint) protects
the Mechanicals from a potentially fatal audience response. Parody can also
intentionally be used for the same purpose, for what more dangerous
wildfowl was there to set on stage before the Tudor censors than that of
popular rebellion? In the first scene of the Cade rebellion, the Lord
Chamberlain's men appear to be employing the same strategy as the
Mechanicals, for as Cade puts on the mask of Mortimer, George Bevis and
John Holland continually remove the mask, assuring the audience that Cade
is not really Mortimer, undermining the credibility of Cade's rhetoric through
comic asides, assuring the audience that after all, this is not a nenl rebellion.
In this way, the continuation in Shakespearean drama of the medieval nla_te_n

and locus dialectic, as described by Weimann, becomes a way of protecting

 

108

drama itself.71 According to Weimann, the Liana section of the medieval
stage was the area in which “expressive" acting took place. It was the realm
of clowns and commoners who commented on the representational action
taking place on the elevated portion of the play area, which Weimann refers
to as the Inch; Although the architectural distinction between n_la_ten and
Inch; does not necessarily carry over into Shakesperean theater, Weimann
argues that it still operates as a functional distinction between different
kinds of onstage characters, speeches and actions. The Mnhen aspect of the
Cade scenes, in which characters comment on the rebellion almost as if it
were a game, sets the tone of parody, ridicule and lack of reality which may
have been the necessary requirement for putting the more mimetic aspects
of the Cade rebellion (i. e., those Weimann would associate with the gun) on
stage at all.

Since Bevis and Holland, actors in the Lord Chamberlain's men, are not
even given fictional names in Folio or Quarto, but are referred to under their
real names, one can speculate that perhaps on stage their character as actors
was directly revealed in some way, as Snug the Lion revealed his identity as
Snug the actor. This, of course, would further emphasize the "make-believe"
qualities of the "rebellion." But if this kind of comedy is understood to be at
least partially a mask itself -- a dramaturgic defense against the censor --
then other levels of the play can be reached, and this requires no more effort
than that of Duke Theseus, who is willing to amend the Mechanicals'
production through imagination.

Having established the "playfulness“ of this Rebellion, the Lord
Chamberlain's Men render rebellion a safe (or at least, safer) t0pic for
examination, and other levels of interpretation become available. Most

obviously, the asides of Holland and Bevis act to deflate the fictionalized

109

ancestry upon which Cade bases his claim to the throne. Cade's followers do
not swallow his claim to noble ancestry.

Cade's claim to the throne can also be taken as a comic inversion of
York's claim. Earlier in the play, for Salisbury and Warwick, York had traced
his claim to the throne as ancestor of Edward III‘s third son, the Duke of
Clarence. Henry VI claimed through John of Gaunt, Edward III‘s fourth son.
York had concluded "So, if the Issue of the elder Sonne/Succeed before the
younger, I am King." (Folio H 128) The trouble with York's argument is that
in the fifteenth-century it had not been established that those claiming the
crown through the bloodline of the elder brother would necessarily have
precedence in right to the crown. (The deposition of six kings, from Edward
II to Richard III made it difficult to establish , by precedent, that the crown
passed by primogeniture.) The point simply had not been established. And
in order to prosecute his claim, which is shaky to begin with, York must
throw the whole kingdom into civil war. Considering the cost to the kingdom
of this legal dispute. and considering that John of Gaunt's line has been on
the throne for three generations, York's claim has little more validity than
Cade‘s. Thus the moral difference between York the aristocrat and Cade the
Kentish boor is greatly narrowed -- their arguments are equally specious
and have similarly disastrous consequences for England.

The difference between the aristocracy and the plebeans is further
narrowed by the scene in which Cade knights himself to encounter Sir
Humphrey Stafford as an equal -- once again tracing his ancestry as a

"Mortimer," and again deflating claims to the throne based on ancestry:

Micheal: Fly, fly, fly! Sir _1_I_t_lmfrey Stnfford and his brother
are hard by, with the Kings Forces.
Cade: Stand, Villaine. stand, or Ile fell thee downe: he

110

shall be encountred with a man as good as himselfe. He
is but a Knight, is 'a?

Messenger: No.

Cade: To equall him, I will make my selfe a knight pre-
sently; Rise Vp Sir john Mortimer. Now have at him.

Enter Sir Humfrey Stafford and his Brother,
with Drum and Soldiers

 

Stafford: Rebellious Hinds, the filth and scum of Kent,
Mark‘d for the Gallowes: Lay your Weapons downe;
‘ Home to your Cottages, forsake this Groome.
The King is mercifull, if you reuolt.
Brother: But angry, wrathfull, and inclin'd to blood,
If you go forward: Therefore yeeld, or dye.
Cade: As for these silken-coated slaues I pass not.
It is to you good people, that I speake,
Ouer whom (in time to come) I hope to raigne,
For I am rightfull heyre unto the Crowne.
Stafford: Villaine. thy Father was a Playsterer,
And thou thy selfe a Shearman, art thou not?
Cade: And Adam was a Gardiner. (Folio H 139)

The production of Adam as proof of ultimate equality of ancestry --
and of the nobility of manual labor -- was a rhetorical commonplace among
dissident craftsman and labourers. "When Adam delved and Eve span, Who
was then the gentleman?" was a popular question in the 1640s, but has an
ancestry which goes back at least into the fourteenth-century. 72 Cade's
comment calls into question any claim based on inheritance and when Cade
defeats the King‘s forces and kills Stafford, he demonstrates that one can
create himself a knight, and hold on to that title, at least for a short period of
time, simply through the exertion of power. What Cade does is after all what
Bolingbroke did for himself in assuming the crown, and what Bolingbroke's
son and grandson are also able to sustain for only a limited period of time.

The Elizabethan line was that against such evanescent glory, the cost to the

111

kingdom of asserting any claim to kingship, no matter how valid, was
prohibitive. Shakespeare sometimes seems to be following that line. But in
order to follow it, 2 Henry VI simultaneously undermines claims of
hereditary right that are also fundamental to the Elizabethan system. Cade‘s
hereditary claims function as a parodic deflation of York's hereditary claims,
supporting Tudor propaganda that- no challenge to the status quo -- even if
based on hereditary right -- was justifiable. But this undermining of
hereditary right threatens to collapse class differences -- a contradiction
which Elizabethan society and Shakespeare, whether consciously aware of it
or not, cannot seem to escape. On one side of the dilemma lies civil war
generated by the competition for status among the nobles, on the other,
popular uprising supported by the rhetoric of equality. Each threatens to

. destroy the system of hierarchy in place.

Despite Cade's continual gestures to egalitarianism, he is always
asserting his own nobility, which rests on a family tree of his own
manufacture, the validity of which is as impossible to disprove as to
establish. The family tree becomes merely the necessary boilerplate to
Cade‘s bid for leadership. No one seems to believe in it —- but it also seems
that no one would follow Cade unless he made the claim. Cade once again
asserts his family tree when he confronts Stafford. This, in effect, amounts

to a legal proceeding -- an inquiry into Cade's claim to nobility:

Cade: . . . Edmund Mortimer Earle of March
married the Duke of Clarence daughter, did he not?
Stafford: I sir.
Cade: By her he had two children at one birth.
Brother: That's false.
Cade: I, there‘s the question; But I say 'tis true:
The elder of them, being put to nurse,
Was by a beggar-woman stolne away

112

And ignorant of his birth and parentage,
Became a Bricklayer, when he came to age.
His sonne am I, deny it if you can. (Folio H 139)

The ramifications of this proceeding are manifold. Most obviously,
Cade's rascality is being portrayed. But the butts of the joke are also the
Staff ords, lesser aristocrats who are helplessly confronted with the ultimate
impossibility of disproving Cade‘s claims to nobility, and by implication, of
wing their own Cade‘s argument is a threat to the whole concept of
nobility and hierarchy, and by presenting the argument, Shakespeare puts

before his audience a threat to the Tudor status guo with which they would

 

have been quite familiar. The breakdown of “difference“ which sustained the
hierarchical society of Shakespeare's day accelerated most notably during
the reign of James I. when knighthoods were granted by the hundreds and
the title of baronet was created partly in response to the debased status of
knighthood. However, the collapse of social difference, which Cade
demonstrates when he knights himself and claims noble ancestry, had begun
early in the reign of Elizabeth. The manufacture of bogus genealogies was a
booming business throughout the 15803 and 903.73 The fictional lineage
which Cade asserts on stage was probably no different qualitatively from the
genealogies that many of the new gentry in Shakespeare's audience had
themselves purchased from the imaginative College of Heralds. While the
nouveux riche gentry of the day valued and wanted to maintain the status of
the class they were moving into, the rapid increase of "gentle men" debased
the value of the station. Thus Cade undermines the concept of hierarchy not
only by his egalitarian rhetoric but by his own debased claims to gentle
status, and it is paradoxically the widespread assertion of bogus claims to

gentle status that in 1595 was going farther to undermine the social

113

structure than any'direct attack on privilege. Ironically, those status seekers
most intent on creating a lineage, and ultimately, most responsible for
undermining the sytem, would have been most strident in their defense of

privilege:

In illiterate societies, changes in the composition of the
higher ranks of society are made respectable, and indeed are
concealed from public view, by altering the genealogies handed
down by oral tradition. The growth of written records,
however, makes such a process much more difficult, since more
is required than a conveniently feeble memory; fraud, and even
forgery, have now to be employed. This thankless task had in
1417 been placed in the hands of the College of Heralds, whose
duty it was to smother new wealth beneath a coat of arms and a
respectable pedigree. Since the heralds made their living by
the issue of these certificates of gentility, and since the number
of aspirants was increasing at a tremendous pace, it is hardly
surprising if a large element of venality soon crept in. . . . The
result of rapid changes in land ownership was an
unprecedented torrent of claims for arms in the early
Elizabethan period. In the thirty years between 1560 and
1589, over 2,000 grants were made, followed by at least
another 1,760 from 1590 to 1639. 74

Cade's fictionalization of royal ancestry, and his knighting of himself,
demonstrate the forces at work in Elizabethan society, which, in a half
century more, would weaken respect for the aristocracy to such an extent
that civil war became possible. 75 Status only has meaning in a system in
which differences are preserved, but the very desire for that status
threatens to destroy the system, through f actional strife when difference is
maintained, and through collapse of difference itself when the ranks of the
noble (gentlemen or better) are allowed to swell. In 2 Henry VI the system

is shown to be under attack from both sides, magnates struggling for

114

preeminence and commoners rebelling under an inconsistently asserted
banner of egalitarianism. These are the poles of destruction inherent in the
English system of heirarchy, and between which England oscillated from the
Wars of the Roses in the fifteenth—century to the Civil War in the
seventeenth.

D E] E]

The Cade Rebellion not only shows the collapse of "difference“ on a
social level, but a collapse of the differentiating faculty -- reason. Act IV of
2 Henry V1 is bracketed by two beheadings: those of Suffolk and Cade.
Aside from emphasizing the divine justice that traitors can expect to meet,
the symmetrical beheadings of Act IV function as graphic metaphors for the
severance of mind from body, and of reason from the English body politic.
What happens to several characters on a microcosmic level happens
macrocosmically to the whole kingdom. Once Gloucester is removed as
Protector and then murdered, the government, and hence the realm, is left
largely without the capacity for reason. With reason all but extinguished,
there is little check on mere appetite, and men prey on each other like
"monsters of the deep." That Suffolk has helped to bring about the demise of
reason, and that Cade has capitalized on the situation makes the justice of
their own endings all the more appropriate; having maimed reason in
England, they lose their own "reason" in a poetically just and emblematic
manner. However, it is not only the villains who are beheaded, but also
those few who represent the remainder of England's capacity for reason.
Lord Say, a judge and educator, is beheaded along with his son-in-law James
Cromer. The clerk of Chartham, Emmanuel, is hung on the charge of literacy,
a "crime" of reason which figures largely in the execution of Lord Say. The

wounding of reason in the form of Gloucester's murder speeds the event of

115

civil war, and the gathering momentum of civil war sweeps away what is left
of reason. The destruction of reasoned judgment is most obviously
portrayed in the trial scenes of Act IV, in which Cade acts as judge.

The trial of the clerk Emmanuel presents an implicit attack on the
legal defense of benefit of clergy with an explicit attack on literacy in
general. A3 Shakespeare does throughout Act IV., he shows the rebels
making faulty generalizations which lead them to blanket condemnations of
entire classes, professions, and bodies of knowledge. Thus, literacy as a
whole is condemned because writing is used in the creation of unfair
contracts and reading allows guilty clergymen, and anyone else who could
read Latin, one free crime.

The first indication of how Emmanuel will be judged is Dick‘s
statement, '"The first thing we do lets kill all the Lawyers." (Folio H 138) The
Kentish rebels and the people of England in general, had good cause to hate
the legal profession and the courts. Judicial extortion and maintenance, as l
have noted, were notorious during the time of Henry VI. The idea that a
nation can live without lawyers or a legal system demonstrates the
ignorance of the rebels and guarantees that their government will be no less
arbitrary and unjust than what has come before. The anger directed toward
the lawyers, however, has legitimate roots in the foul practices of the day.

The second statement which sets the stage for Em manuel's trial is
Cade's attack on written contracts, which will be extended, in Emmanuel's

case, to writing in general:

13 not this a lament-
ble thing, that of the skin of an innocent Lambe should
be made Parchment; That Parchment, being scribeld ore,
should vndoe a man? Some say the Bee stings; but I say,
‘tis the Bee's waxe: for I did but seale once to a thing, and

116

I was never mine own man since. (Folio H 138)

As a blanket condemnation of contract, this appears ridiculous, but as a
popular expression of anger at sharp dealing and unfair contracts, it
undoubtedly still strikes a chord. (Shakespeare's portrayal of the rebels
attitude toward writing indeed distorts historical fact, since the Cade
rebellion was the first popular uprising in which written petitions of
grievance were sent to the King and circulated by the rebels for propaganda
purposes.)

In this context Emmanuel the clerk is hauled into the court of Jack
Cade. Emmanuel's trial becomes a dramatic reversal of benefit of clergy -- a
fact which Emmanuel perhaps does not realize until sentence is passed and
he is hung with his pen and ink horn about his neck. A3 a whole, however,

the trial is staged as an attack on the entire humanist program of education:

Cade: How now? who's there?

Weaver: The Clerke of Chartam: hee can write and
reade and cast accompt.

Cade: O monstrous!

Weaver: We tooke him setting of boyes Copies

Cade: Here's a Villaine.

Weaver: He‘s a Booke in his pocket with red Letters in‘t

Cade: Nay then he is a Coniurer

Butcher: Nay, he can make Obligatons and write Court
hand.

Cade: I am sorry for't: The man is a proper man of
mine Honour: vnlesse I finde him guilty, he shall not die.
(Folio H 139)

Emmanuel‘s trial demonstrates that the rebels are no less arbitrary in their
adjudications than the royal government. When Dick tells Cade that Em manual

‘can make obligation and write court-hand," and Cade extends the illusory

117

safeguard "Unless I find him guilty he shall not die" -- arbitrariness is rhetorically
inflated to sound like due process. Emmanuel, who quickly proclaims that he can
read and write, simply does not realize that he has now entered a jurisdiction in

which the law of benefit of clergy has been inverted:

Cade: Come hither sirrah, I must examime thee: What is thy
name?

Clearke: Emanuell.

Butcher: They vse to writ it on the top of Letters: 'Twill
go hard with you.

Cade: Let me alone: Dost thou vse to write thy name?
Or hast thou a marke to thy selfe, like a honest plain dea-
ling man?

Clearke: Sir I thanke God, I haue bin so well brought
Vp, that I can write my name.

All. He hath confest: away with him: he's a Villaine
and a Traitor. (Folio H 139)

The rebels anger at the institution of benefit of clergy is well founded. It
often allowed the guilty to escape, and the innocent illiterate to be executed.
It was invoked with a regularity that continually displayed the unfairness of

the system to the people:

Stone has suggested that 47% of the criminal classes of
Jacobean London could read', since they successfully pleaded
benefit of clergy. The Middlesex records in fact show 32% of
the capital felons in the reign of Elizabeth and 39% in the reign
of James successfully claiming clergy, a somewhat lower
percentage than cited by Stone.

That Emmanuel should have to pay for the sins of the system. of
course, is unfair and his trial dramatizes humanism's worst nightmare.

Implicit in the humanist commitment to recover knowledge which had been

118

suppressed or lost after the fall of Rome is the fear that another such
disaster could occur, that literacy and learning themselves would be directly
attacked and once again, the course of civilization set back. Em manuel‘s
name, meaning "God be with us" is especailly pregnant in an age when the
printed English bible was becoming the presence and authority of God in the
homes of England. The hanging of Emmanuel becomes an emblematic
execution of literacy Alli religion, religion for the English protestants being
largely impossible without literacy. The rebels, however, are not portrayed
as the only ele ment working to the dissolution of religion and civilization. In
the context of the whole play, it is the lawlessness of the nobles, portrayed in
the first three acts, that has inexorably led the realm to the brink of

ignorance and barbarism. In Richard II royal despotism which will not

 

recognize legal limitations on its power poses the threat to the
commonwealth, but in 2 Henry VI it is the inability of central government to
restrain the despotism of local warlords which results in rebellion and
anarchy and poses the threat to civilization.
D E] D

Cade's trial (occurring in Quarto only) of one Sargeant-at-law is a
comic inversion of Suffolk‘s and Margarets treatment of the suitors in Act 1.
iii. and continues to develop the theme of rebel animosity to lawyers and the
law. In Quarto the first suitor had complained that the Cardinal‘s man "hath
stole away my wife,/ And th'are gone together, and I know not where to
finde them.“ (Quarto BZ r) In Folio, the complaint is more inclusive: "against
John Goodman, my Lord Cardinals Man, for keeping my House, and Lands,
and Wife and all from me." (Folio H 123) As I have previously noted, the
suitor‘s charge is an example of the general complaint made by the historical

Cade and his followers of various ways in which the courts were used to

119

dispossess true owners of their holdings. (See pages 48-9 for the grievances
of the Commons of Kent, items six and twelve.) The situation is inverted
when a Sargeant-at-law, certainly one whom the Kentish rebels would have
seen as being most deeply implicated in abuse of the judicial system,

complains to Cade of his own "dispossession":

Sargiant: Iustice. iustice, I pray you sir, let me haue iustice of
this fellow here.
Cade: Why, what has he done?
Sarg: Alasse sir, he has rauisht my wife.
Dicke: Why my Lord he would haue rested me,
And I went and entred my Action in his wiues paper house.
Cade: Dicke follow thy sute in her common place.
You horson Villaine, you are a Sargiant youle,
Take any man by the throate for twelue pence,
And rest a man when hees at dinner,
And haue him to prison ere the meate be out of his mouth.
Go Dicke take him hence, cut out his toong for cogging,
Hough him for running and to conclude
Brave him‘with his own mace
(Quarto 62 v)

This brief scene emblematizes law as rape and again, inverts the
actions of the nobility. The courts, under the control of Suffolk, have failed
to provide a remedy for the abduction of the first suitor's wife,
countenancing adultery and possibly rape. Under these circumstances, it is
metaphorically appropriate that Cade's man "Dicke" likens rape to the
serving of legal papers, entering his "Action," in the Sargeant's wife's "paper
house." The law has become what it has been used to legitimate, and this
being widely recognized, there is no longer any need to cloak rape with a
veneer of legality -- one simply proceeds directly to the rape, rape having

become the law. The way in which Cade picks up on Dick's metaphor

120

emphasizes his intense hatred and vindictiveness toward the judicial system
and his sentence of the Sargeant is a kind of castration. The Sargeant is to be
deprived of that piece of anatomical equipment which he most relies upon to
commit legal "rapes" -- his tongue. He is to be “houghed” to keep from
“running," which also has a double sense. "Houghing" is the clearing of one's
throat a lawyer might be expected to do before making a long speech --
“running" on. But it is also the cutting of the "hough-sinew," the tendons
behind the knee, an operation which was performed on cattle to keep them
from running off. Thus, the threat to the established order is quite graphic,
and it is leavened with none of the remorse which Cade admits (in Folio
only) when he sentences Lord Say. Rather, the joys of metaphoricity are
connected to the joys of mutilation in a manner which may have been quite
hilarious to the audience, and quite gratifying for some of them as political
wish fulfillment. In this context of mutilation, Cade's final order that the
Sargeant be braved with his own mace carries the implication of real
castration But metaphorically the Sargeant has already received poetric
justice, for he Min been braved with his own mace -- the law as Cade's
Dicke.

U D E]

The trial of Lord Say amplifies many of the issues raised by the trial
of Emmanuel and utterly destroys audience sympathy for the rebels. Say is
accused of giving up Maine and Normandy, speaking French, promulgating
literacy, hanging those who cannot read, enforcing the criminal and tax laws,
and putting an elegant footcloth on his horse. Again, the rebels' charges mix
anger at legitimate grievances with large doses of comic -- but dangerous --
ignorance. The rebels are particularly concerned with the loss of France, and

they have legitimate reason to be angry, as Englishmen in general, and more

121

personally, since many of them appear to be veterans of French campaigns.
(1 have in mind Clifford's reminder to the rebels of "The fearful French,
whom m late vanquished," and several references to the rebels, by Cade,
Clifford, and Henry VI, as "soldiers." Of course, one could speak of the
English nation as a whole vanquishing the French, and since the rebels have
fought and defeated Stafford, that might account for calling them soldiers.
Yet, the nu minous conjuration of Henry V by which Clifford ends the
rebellion seems to be based on a very strong appeal to the military service
of the Kentishmen.) Dick the Butcher says, "We'll haue the Lord Sayes head
for selling the Dukedome of Mni_nn. " (Folio H 139), and when the messenger
arrives shouting that Lord Say has been captured, he says "heere‘s the Lord
Say which sold the Townes in France." (Folio H 140). In Cade's
extemporaneous indictment of Say, the first charge involves France: "What
canst thou answer to my Majesty for gluing up of Nor mandie unto Mounsieur
Basimecu, the Dolphine of France?" (Folio H 141) Yet, it is evident from the
very beginning of the play that if anyone is to be credited with the loss of
Maine, it is Suffolk, who has traded Maine and Anjou to bring Margaret to
England. Somerset's ineffective government has cost the English Normandy.
There is no indication in the play of any involvement by Say. The rebels
simply assume, with no proof at all, that Say is responsible and the simple
ignorance of the rebels with regard to the true political situation subverts
their claims to rule.

The displacement of the rational by the irrational, and learning by
ignorance is further emphasized by rebel errors in logic. The accusation
against Say for speaking French forms the major premise of an erroneous

syllogism which is set forth in this exchange between Cade and Stafford:

122

Cade: . . . he [Say] can speake French, and therefore hee is
a Traitor.

Stafford: O grosse and miserable ignorance!

Cade: Nay, answer if you can: the Frenchmen are our
enemies; go to then, I ask but this: Can he that speaks
with the tongue of an enemy be a good Councellour, or
no? (FolioH 139)

Of course, Cade uses speaking "with the tongue of an enemy" in a
double sense -- an example of "the four terms fallacy" which in much of
Shakespearean word play would simply be good fun, but which in this
instance prefaces a grave political and judicial error. This exchange can also
be analyzed in terms of another elementary error in syllogistic logic, that of
the excluded middle: Say speaks French; Our enemies speak French;
Therefore, Say is our enemy. Either way, Stafford's comment, “0 grosse and
miserable ignorance," (Folio H 139) is an accurate evaluation of the formal
errors in Cade's reasoning, and is perhaps inserted to make sure the
audience gets the point. Cade's ignorance and illogic seem to be a '
straightforward exemplification of the Elizabethan line that the great herd of
pe0ple are incapable of political participation -- that democracy is indeed the
worst form of government.

But there is complicating factor. Cade seems to know exactly what he
is doing. His use of fallacies may be a willful rhetorical strategy which Cade
uses to manipulate his followers, and yet, the effect of fallacious argument
on his men his questionable. As I've indicated, the play clearly shows that
many of Cade‘s followers -- including Dick -- know that Cade is a fraud and
that he is speaking garbage. But they do not seem to care. It is not that the
rebels are duped by illogical arguments. Logic or illogic, truth or falsity,
often do not seem to matter to them. Whatever the reasons for the

def lationary comments of Cade's own men, their continual deconstruction of

123

Cade also has the effect of deconstructing the general argument that the
commons are too stupid to govern the country. All of the asides made to the
audience work at cross purposes with what seems to be a simultaneous
demonstration of the people‘s ignorance and gullibility. A pure
deconstructionist might conclude that this is simply another instance of the
way discourses inevitably unravel and contradict themselves. But if the
asides were included to appease censors who were afraid that the audience
would take Cade seriously, then we have the ironic situation of having to
demonstrate the perspicacity of Cade‘s people in order to demonstrate their
stupidity. From the perspective of the audience, there must have been those
who felt the play indeed demonstrated once again the evil of the "many
headed monster," the multitude. But there must have also been those who
noticed the civil war within the form of the discourse itself and who received
a very ambivalent message about the people's capacity to govern. And that
ambivalence -- that measure of doubt in relation to the Elizabethan line --
would itself have been radical.

. Cade's next charge against Say, for promulgating literacy, recapitulates
the main charge against Emmanuel, and thus doubly emphasizes the rebels‘

attack on literacy and learning:

Thou hast most traiterously corrupted the youth of
the Realme in erecting a Grammar Schoole: and where-
as before, our Fore-fathers had no other Bookes but the
Score and the Tally, thou hast caus'd printing to be vs'd,
and contrary to the King, his Crowne, and dignity, thou
hast built a Paper-Mill. It will be prov'd to thy Face,
that thou hast men about thee that usually talke of a
Nowne, and a Verbe, and such abominable words as
no Christian eare can endure to heare. (Folio H 141)

124

The direct attack on literacy, of course, continues the personification of
the rebels as Ignorance attacking Learning. It is doubtful that this could
have been received by Shakespeare's audience with any sense of
approbation. Perhaps as much as 50% of the population of London was
literate at this time, and valued the printed word in religion and for practical
purposes.” Though Shakespeare's audience may have been mixed, it seems
likely that they had some appreciation of language, or they simply would not
have purchased a ticket. However the scene may have had two additional
significations for Shakespeare's audience. The first is satirical. Cade's comic
use of the inflated legal style to bring literacy to the bar not only shows his
failure to appreciate the inconsistencies of his own rhetoric, but underscores
the way legal language is often used to elevate and legitimate the most
sordid actions -- in this instance, legal language being used to abolish written
communication (an occurrence not unfamiliar to anyone who has tried to
read an insurance policy or the tax code). Shakespeare is able to burlesque

Cade while at the same time taking a swipe at the misuse of legal language

 

-- a factor which again points to legitimate grievances. Even if the
"remedial" action the rebels intend to take -- wiping out grammar schools ~-
is absurd, they still have legitimate grounds for complaint. The second
signification is that the scene articulates real humanist fears of how learning
would suffer at the hands of a popular rebellion which associated literacy
with oppression. Erasmus had early voiced the fear that education, man‘s
best hope for civilization and enlightenment, would be swept away in violent
rebellion and nationalism.78 This possibility haunted English humanists
from the beginning of the sixteenth century through to the civil war.
Christopher Hill describes Bruno Ryve's summary of lower class opinion in

Chelmsford on the eve of civil war as "slanted," but basically accurate:

125

Cade continues to emphasize the way in which the judicial system has
abused language and particularly the way in which language has been used

as a tool by the courts to oppress the poor:

. . . Thou hast appoin-
ted Iustices of Peace, to call poore man before them a-
bout matters they were not able to answer. Moreouer,
thou hast put them in prison; and because they could not
reade, thou hast hang'd them; when (indeede), onely for
that cause they haue beene most worthy to liue. (Folio H 141)

The comic edge to Cade's charge is, of course, that the poor men were
not able to answer because indeed, they were guilty. But as I have set forth
in the introduction of this dissertation, the procedural handicaps which
criminal defendants labored under were formidable. Ignorance of the law
and the simple incapacity to provide a coherent answer to the judge could
easily result in conviction of the innocent. And releasing those accused
because they could read (benefit of clergy) is. in effect, not very much
different from hanging people because they cannot read. Cade‘s
preoccupation with benefit of clergy once again emphasizes the misuses of
learning which threaten learning itself.

The final charge against Say puts at issue the great disparity in wealth
between the nobility and the lower echelons of English society by examining
another widely unpopular Tudor policy -- the sumptuary law. The statute

‘l‘l. all 0 tetw IDOIO _'C‘ :twne Which

126

Elizabeth had attempted to enforce numerous times, was aimed at "excess"

and "pride“ -- but only of those people below a certain level of income:

[Flor the necessary repressing . . . of the inordinate excess daily
more and more used in the sumptuous and costly array and
apparel accustomably worn in this realm, whereof hath ensued
. . . such sundry high and notable inconveniences as be to the
great manifest and notorious detriment of the commonweal, the
subversion of good and politic order in knowledge and
distinction of people according to their estates preeminences
dignities and degrees, and to the utter improverishment and
undoing of many inexpert and light persons inclined to pride
mother of of all vices. . . [no person worth less than £100 a year
may wear] any satin damask silk chamlet or taffeta in his gown

coat with sleeves or other outer most apparel.80

As they did in the case of benefit of clergy, the rebels once again challenge a
law because it is used to enforce class distinctions, and once again Cade

inverts the law to convict those pepple it was designed to protect:

Cade: Thou
doest ride in a foot-cloth, dost thou not?
Say: What of that?
Cade: Marry, thou ought'st not to let thy horse weare
a Cloake, when honester men than thou go in their Hose
and Doublets.
But: And worke in their shirt too; as my selfe, for ex—
ample, that am a butcher. (Folio H 141)

The gentry have targeted themselves by the very distinctions in dress
they have attempted to impose on the rest of the population. Say can afford
to dress his horse better than the rebels can afford to dress themselves. In
the Arden edition of 2 Henry VI the editor notes that a foot-cloth was “often

made of velvet, and embroidered with gold lace, and thus specially

127

obnoxious to Cade and his followers.“ 81 The reference to the quality of the
cloth worn by Say's horse picks up a "thread" of imagery first displayed in

the speeches of Bevis and Holland at the beginning of the rebellion:

Bevis: I tell thee, Iacke Cade the Clothier meanes to
dresse the Com mon-wealth, and turne it, and set a new
nap vpon it.

Holland: So he had need, for 'tis threadbare. Well, I say,
it was neuer merry world in England since Gentlemen
came up.

Bevis: O miserable Age: Vertue is not regarded in
Handy-crafts men. (Folio H 138)

Say‘s arraignment makes it clear that setting a "new nap" on the common-
wealth is not merely metaphorical Cade promises to dress everyone "in the
same livery," thus repealing the sumptuary laws of the realm. Bevis
complaint that virtue is not regarded in handicraftsmen vocalizes the
outrage of artisans that they, the producers of the realm, have less status
and money than gentlemen, who essentially produce nothing. To the rebels,
the sumptuary laws invert the true value of subjects to the commonwealth,
the drones being given the privilege to dress better than the workers. The
handicraftsmen have more chance of their value being recognized if the
sumptuary laws are destroyed completely.

Holland's line, "It was neuer merry world in England since Gentlemen
came up," accurately states the attitudes of many poor Englishmen. The
rebels anger at class distinction and economic disparity closely resembles
that expressed in the only major Tudor rebellion, Kett‘s Rebellion of 1549,

another uprising of rural “handycraftsmen”:

In 1549 Protector Somerset faced more determined and
widespread popular opposition than any other Tudor

128

government, caused by exasperation at his failure to combine
good intentions to relieve want and poverty with effective
action. . . . In this situation the harmony of Tudor society
collapsed and class hostility flared up in several areas. 'All
have conceived a wonderful hate against gentlement and taketh
them all as their enemies‘, wrote Somerset. Alexander Neville
recounted that in Norfolk '30 hated at this time was the name of
worship or gentleman that the basest of the people, burning
with more than hostile hatred, desired to extinguish and utterly

cut off the gentry.‘82

Though there were no great popular uprisings against Elizabeth, the threat of
such uprisings was a constant source of anxiety to the government,
particularly in the 15903. when large numbers of returning soldiers and poor
artisans were perceived by the government as a significant threat. The
composition of Cade's “troops," artisans and disillusioned soldiers who had
received little support during the wars against France, thus matches the
composition of the group that gave Elizabeth's government the most disquiet
-- artisans, and disillusioned soldiers who had received little support during
England's war with Spain.

In his defense, Say becomes a spokesman for humanism. He denies
having sold Maine or lost Normandy and asserts his dedication to political

service, judicial integrity and learning:

Iustice with fauour haue I alwayes done;

Prayres and Teares haue mou'd me, Gifts could neuer.
When haue I ought exacted at your hands,

Kent to maintaine, the King, the Realme, and you?

Large gifts haue I bestow'd on learned Clearkes,

Because my Booke preferr'd me to the King,

And seeing Ignorance is the curse of God,

Know1edge the Wing wherewith we flye to heaven,
Unlesse you be possess'd with diuelish spirits,

You cann0t but forbeare to murther me. . . (Folio H 141)

129

In this exchange, the dominant motif of the revolution, ignorance and
chaos versus humanism, becomes evident. Say makes the same mistake as
Gloucester, who had asserted to Eleanor that his innocence would defend
him: "I must offend before I be attainted." Earlier, Say had been urged by
the King to leave London, but he had decided to stay, albeit secretly, and had
proclaimed, "The trust I haue is in mine innocence/And therefore am I hold
and resolute." (Folio H 140) But innocence only has a chance of prevailing
when trial is based on rational inquiry, and Cade's trial of Say is the
antithesis of rationality, guided only by the desire to vent rebel anger on Say
as scapegoat. Say‘s first handicap is that he attempts to defend himself with
elevated forensic rhetoric that the rebels simply do not understand, because

they have little capacity for abstract thinking:

Say: You cannot but forbeare to murther me:
This Tongue hath parlied vnto Forraigne Kings
For your behoofe.
Cade: Tut, when struck'st thou one blow in the field?
Say: Great men haue reaching hands: oft haue I struck
Those that I never saw, and strucke them dead.
George: 0 monstrous Coward! What, to come behinde
Folkes? (Folio H 141)

This exchange with Say inverts the usual situation facing a criminal
defendant. Say the judge is put in the position of the typical uneducated
criminal defendant who has no counsel, no knowledge of Cade's law, no copy
of the indictment against him, and no grasp of judicial language, as employed
in Cade‘s "court." Say, ineffect, does not know the rules of the game. and
must grope his way blindly through his own defense, trying to learn the

language of the tribunal and the rules of procedure as he goes. But Say

130

proves his adaptibility, and in his last speech, where he finally abandons

abstract language for the more literal and denotative language of the rebels,

he nearly saves himself:

Say:

Tell me: wherein haue I offended most?

Haue I affected wealth or honour? Speake.

Are my Chests fill'd up with extorted Gold?

13 my Apparrell sumptuous to behold?

Whom haue I injur'd that ye seeke my death?

These hands are free from guitlesse bloodshedding,
This breast from harbouring foule deceitful thoughts.
0! let me liue.

Cade: I feele remorse in my selfe with his words: but

Ile bridle it: he shall dye, and it bee but for pleading so
well for his life. (Folio H 141)

The rebels treatment of Say finally puts them into the same league

with Beaufort, Suffolk, and the other murders of Gloucester. In their

taunting and physical abuse of Say, the rebels demonstrate a heartlessness

which seems calculated to extinguish any audience sympathy in their behalf:

Say:
Cade:

Say:

Cade:

These cheekes are pale with watching for your good.
Giue him a box 0' th' eare, and that wil make 'em
red againe.

Long sitting, to determine poore men's causes,

Hath made me full of sicknesse and diseases.

Ye shall haue a hempen Candle then, at the help

of hatchet.

Butcher: Why dost thou quiuer, man?

Say:
Cade:

The Palsie, and not feare, prouokes me.

Nay, he noddes at vs; as who should say, Ile be
euen with you: Ile see if his head will stand steadier
on a pole or no. (Folio H 141)

Like Gloucester, Say functions as a representative of measured,

131

reasonable judgment, and when the rebels behead Say the loss of
reason in England is once again emblemized. But the rebels go even
farther than the nobles, and revel in this triumph of brutality over
reason. They take sadistic pleasure in baiting an old, palsy stricken
man and monumentalize their contempt for reason by beheading Say,
putting his head, and the head of his son-in-law Cromer on poles,
bringing the heads along, in parade, and dipping the poles so the
heads can "kiss" at every corner. For the humanists, rebellions of the
Cade type represented an even greater threat than civil war among
the nobles. for they saw in popular uprising a threat to the entire
humanist endeavor -- the sacking of the libraries and a new dark age.
E) E] El

Given the legitimate grievances of Cade and his men about the
partisan nature of English law, one well could ask whether the rule of law
valued and represented by Duke Humphrey was worth trying to preserve.
If 2 Henry VI (and, for that matter, the other plays in Shakespeare's two
tetralogies) does display, as I have argued, a high regard for the rule of law,
and concomitantly, a monarchy strong enough to enforce the law but also
limited by the law, does this make the play simply another apology for the
ruling class? If one follows certain Marxist lines, such as the one described
by E. P. Thompson as "schematic Marxism," the answer would seem to be

“yes":

From this standpoint the law is, perhaps more clearly than any
other cultural or institutional artifact, by definition a part of a
‘superstructure' adapting itself to the necessities of an
infrastructure of productive forces and productive relations. As
such, it is clearly an instrument of the de facto ruling class: it
both defines and defends these rulers‘ claims upon resources

 

132

and labour-power -- it says what shall be property and what
shall be crime -- and it mediates class relations with a set of
appropriate rules and sanctions, all of which, ultimately,
confirm and consolidate existing class power. Hence the rule of
law is only another mask for the rule of a class. The
revolutionary can have no interest in law, unless as a
phenomenon of ruling-class power and hypocrisy; it should be
his aim simply to overthrow its-7’

In other words, Cade was right, and the purpose of modern
Shakespeare criticism, from a Marxist perspective, might be to exploit the
legitimate grievances of Cade's followers as a way of deconstructing
Gloucester's position in the play as exponent of the rule of law. On the other
hand, if one is not convinced that destroying the rule of law will precipitate
the millennium -- or that 2 Henry MI, as a Whole, can be reasonably
interpreted or utilized to support that position -- then a middle ground of
interpretation, between absolute monarchy and popular revolution becomes
possible. This is my reading, which views the play as being grounded in the
discourse of the common law, which. with all its warts and class bias,
presented the most durable obstacle to tyranny in English history. In
support of the last half of that conclusion, I can find no better authority than

B. P. Thompson:

It is inherent in the especial character of law, as a body of rules
and procedures, that it shall apply logical criteria with reference
to standards of universality and equity. It is true that certain
categories of person may be excluded from this logic (as
children or slaves), that other categories may be deb arred from
access to parts of the logic (as women or, for many forms of
eighteenth-century [and sixteenth] law, those withom certain
kinds of property), and that the poor may often be excluded.
through penury, from the law's costly procedures. All this, and
more is true. But if too much of this is true, then the

133

consequences are plainly counterproductive. Most men have a
strong sense of justice, at least with regard to their own
interests. If the law is evidently partial and unjust, then it will
mask nothing, legitimize nothing, contribute nothing to any
class's hegemony. The essential precondition for the
effectiveness of law, in its function as ideology, is that is shall
display an independence from gross manipulation and shall
seem to be just. It cannot seem to be so without upholding its
own logic and critieria of equity; indeed, on occasion, by actually
b_ei_ng just. And furthermore it is not often the case that a
ruling ideology can be dismissed as a mere hypocrisy; even
rulers find a need to legitimitze their power, to moralize their
functions, to feel themselves to be useful and just. In the case
of an ancient historical formation like the law, a discipline
which requires years of exacting study to master, there will
always be some men who actively believe in their own
procedures and in the logic of justice. The law may be rhetoric,
but it need not be empty rhetoric. Blackstone's Commentaries
represent an intellectual exercise far more rigorous than could
have come from an apologist's pen. . . .

. . . rulers were, in serious senses, whether willingly or
unwillingly, the prisoners of their own rhetoric; they played the
games of power according to rules which suited the m, but they

could not break those rnles or the whole game wonld be thrown

339732.84

In 232111111. Shakespeare portrays a period in which the whole
game very nearly was thrown away. But 2.11M does n0t prove that the
rule of law ought to be destroyed. It merely shows that the rule of law _c_nn
be destroyed, and Shakespeare quite graphically depicts the result of that
destruction throughout his first tetralogy. Though Gloucester displays the
arrogance of his position in his treatment of Peter Thu mp, and perhaps an
unfeeling severity in his punishment of Saunder Simpcox, he does not bend
the law in favor of himself or those he loves and he does not resist the law

when it works against him. Gloucester's own imperfections mirror the

134

imperfections of human justice in a "naughty world," but they are balanced
against real strengths. Considering the alternatives to the rule of law, we
may find it, even with its imperfections, the more endurable option.

The two plays which I will next discuss, The Merchgnt of Ve_n_i_ne and

Measure for Measure set forth threats to the rule of law which arise from

 

the clash of competing values within the legal system itself. Since these
plays are comedies, it will come as no surprise that they provide a better
resolution of the forces which threaten law and society than does a history
such as 2 Henry VI. Yet, the victories achieved by the rule of law in 113
Merchant of Venice and Measure for Measure are tentative, imperfect, and
temporary. They demonstrate how difficult it is to preserve the rule of law,

even in the theoretical exercise provided by ideal comedy.”

CHAPTER 2

Contexts of Play and Earnest: Construing Shylock's Bond

The flesh-bond story of the Merchant of Venice as far as scholars
know, begins in the ancient Mahabharata of India, in which King Usinara
"saves a dove from a hawk by giving its weight from his own flesh instead."1
The story continues through many variations in the Middle Ages, the most

famous being the Gesta Romanorum and the Cursor Mundi both of the 13th

 

century, and into the sixteenth-century Italian story, Il Pecorone.2 Lhn

Merchant of Venice therefore, has roots sunk deep in the realm of folklore

 

and allegory. But despite the timelessness of the story, it provided a vehicle
for addressing some of the most pressing economic and legal issues of
Shakespeare‘s day: the place of usury in a Christian society (or from another
point of view, the place of Christian ethics in an economy that was hungry
for capital); the inadequacy of a legal system that had grown excessively
rigid and formal; and the slippery position of the aristocracy and aristocratic
values in a society where the ignoble began to amass fortunes and'the noble
began to lose them. The struggle in the play, among money-lenders,
merchants and aristocrats and between the values of law and equity,
commerce and charity, is fought with language over the control of language.
The victors, however temporary, are those who can control the meaning
given to words, and the power which thatmeaning can release. Though the
trial of Shylock‘s action against Antonio provides the play‘s most intense
struggle over the signification of words, contests over the meaning and effect
of language take place throughout the play. The trial scene can best be
understood as but one instance of a motif that continues throughout the play:
the struggle of characters to control events by controlling the signification of

136

language. Most of these struggles to control meaning fall into two often
overlapping categories: (1) playful interpretations of language are pitted
against earnest interpretations and (2) commercial interpretations against
interpretations governed by love in its various manifestations as eros,
friendship and Christian charity.

The language of commerce and the language of love come into
immediate collison in the first act of The Merchant of Venice. Venice is
portrayed as a society in which commercial language and concerns have all
but displaced the language of love. Antonio's depression is interpreted
immediately by Salerio and Solanio as concern for his trading ventures.
Salario proclaims that if he were in Antonio's position, every object, every
normal human action, "my wind cooling my broth,“ "the sandy hour glass,"
"the holy edifice of stone," would conjure up images of shipwreck and loss.
The second possibility, that Antonio is in love, is given faint consideration by
Solanio, who is easily put off by Antonio‘s "Fie fie," and concludes, ‘Not in
love neither." This opening dialogue sets the foundation for one of the main
themes of the play, which is the relationship between love and commerce:
the place of love in a commercial society and the place of money in a loving
relationship.3 ‘

The tension between the language of love and money becomes readily
apparent in Bassanio‘s first conversation with Antonio. A3 Bassanio begins
his request for a loan, he mixes the language of love and commerce in such a
way that love becomes com modified. Love is given an exchange value, and
Bassanio, perhaps only half-consciously, implies that the love he owes
Antonio is, like the monetary debt he also owes, a burden he would like to
be rid of:

137

To you, Antonio,
I owe the mogt in money nn§_in_lnyn,

And from your love I have a warranty
To unburden all my plots and purposes

How to get clear of Q the dghts I owe.4
(1.1. 130-4; underlining added)

Antonio's response seems to integrate love, honor and commerce as
complementary features of a unified social consciousness, but it is so
magnanimous, it suggests Antonio's fear of losing his relationship with

Bassanio. Antonio, apparently, does not want Bassanio out of his debt:

I pray you good Bassanio let me know it,

And if it stand as you yourself still do,
Within the eye of honour, be assur'd

My purse, my person, my extremest means
Lie all unlock'd to your occasions. (I. i. 135-9)

Antonio's response is an invitation for Bassanio to answer in the
language of love. After all, Antonio has offered nygmhing. Bassanio,
however, answers in the language of commerce. If Antonio will but risk one
more loan of 3000 ducats, then he will stand a chance of recovering all the
money he has previously lent to Bassanio, for Portia is rich Bassanio simply

wants capital to regain the loss of capital:

In my school days, when I had lost one shaft,

I shot his fellow of the self-same flight

The self-same way, with more advised watch,
To find the other forth; and by adventuring both
I oft found both. I urge this childhood proof
Because what follows is pure innocence.

I owe you much, and like a wilful youth,

That which I owe is lost; but if you please

To shoot another arrow that self way

138

Which you did shoot the first, I do not doubt,

As I will watch the aim, or to find both

0r bring your latter hazard back again

And thankfuuy rest debtor for the first. (I. i. 140-52)

Though this is a picturesque way of asking for a loan, the request is not
couched in the language Antonio had hoped to hear. Whether Bassanio
makes a conscious choice to thwart Antonio's expectations and to use the
language of commerce rather than love cannot be decided finally by
reference to the language of the play. If Basssanio intentionally chooses not
to give Antonio the kind of speech Antonio wants, then what will appear on
stage is a covert struggle between Bassanio and Antonio to control the
language of the conversation, with Bassanio deliberately distancing himself
from Antonio through the impersonal language of commerce. But even if
Bassanio is portrayed as being merely unperceptive about Antonio's signal to
respond in the language of love, there is still remains a one-sided attempt by
Antonio to force the conversation out of a commercial mode and into a loving

one:

Antonio: You know me well, and herein spend but time
To wind about my love with circumstance,
And out of doubt you do me now more wrong
In making question of my uttermost
Than if you had made waste of all I have (I. i. 153-7)

Antonio‘s speech is fairly coercive, and in his next reply, Bassanio
comes around, but only a bit, by verbally linking himself to Antonio ("0 my
Antonio") and by emphasizing the min motivations of his suit to Portia
rather than the erotic. Bassanio describes Portia in the language of the
market place, likening her hair to the golden fleece, noting her value in

comparative terms and acknowledging the demand she evokes as a

l 39
commodity:

Her name is Portia, nothing undervalu'd
To Cato's daughter, Brutus‘ Portia,
Nor is the wide world ignorant of her worth (I. i 165-6)

Wooing Portia has its own attractions, but Bassanio emphasizes that

competing with Portia's suitors is also a good business venture:

O my Antonio, had I but the means

To hold a rival place with one of them,

I have a mind presages me such thrift

That I should questionless be fortunate. (I. i. 173-7)

Thus, although the topics of the conversation are Portia, and
Bassanio‘s request 01' a loan for courtship expenses, the subtext reveals a
conflict about the choice of language Bassanio and Antonio will use with each
other: the language of love, appropriate to close friends, or the language of
com merce, appropriate to arm's length dealing. There is no clear cut victor
in this contest because each of the participants has leverage against the '
other. Antonio has the money (or at least the credit rating) that Bassanio
needs, and Bassanio‘s love is something that Antonio needs. Neither, it
seems, gets completely what he wants. Antonio does not get an unequivocal
statement of love or devotion from Bassanio and Bassanio, though he gets
Antonio as a surety, increases his obligation in terms of love. Yet, by
demanding that Bassanio use a particular kind of discourse in order to get
the loan. Antonio does at least get one loving reply: "0 my Antonio.“

In Act 1. iii a second instance 01‘ conflict between rival discourses
occurs. Bassanio asks Shylock for the loan of 3000 ducats, and the following

exchange about Antonio, as surety, occurs:

140

Shylock: Three thousand ducats for three months, and
Antonio bound.

Bassanio: Your answer to that.

Shylock: Antonio is a good man.

Bassanio: Have you heard any imputation to the con-
trary?

Shylock: Ho no, no, no, no: my meaning in saying he is a good
man, is to have you understand me that he is suffi-
cient. .. (1. iii. 9-15)

There is a temporary breach in communication between Shylock and
Bassanio, which Shylock recognizes immediately and corrects. The breach
occurs when Shylock says that "Antonio is a ggo_d man," and Bassanio
responds indignantly, ”Have you heard any imputation to the contrary?" The
problem, as Shylock points out, is that he and Bassanio have attached
different meanings to the word ""g,ood Bassanio interpreting Shylock‘s
comment as an ethical statement and Shylock intending it merely as a
commercial evaluation. The misunderstanding demonstrates the habitual
modes of operation of both Shylock and Bassanio. Shylock, the man of
commerce, the usurer, immediately consults the balance book before making
a decision on whether a man is "good"; Bassanio, the aristocrat, attaches to
the word "good" a whole complex of ethical standards including generosity,
hospitality, reputation, keeping one's word, noblesse oblig -- the complex of
virtues contemporary Englishmen associated with Philip Sidney and which
composed the aristocratic concept of LEM-5 But the issues raised by this
miscommunication are not fully resolved by the fact that Shylock and
Bassanio are used to dealing in different worlds and in different languages.
Although Bassanio may be unfamiliar with com merical diction, he certainly

realizes that he is involved in a commercial transaction. Why does he

I‘ll

assume that Shylock is making an ethical evaluation of Antonio? The
answer, I believe, is that Bassanio (naively, from Shylock's point of view)
assumes that the honor of the borrower is a criterion which the lender would
find relevant in deciding whether to make the loan. Bassanio is not a
complete stranger to commercial speech, as his preceeding conversation with
Antonio demonstrates. But Bassanio is not fluent in the language ol‘ .
commerce, so he misunderstands "good." Shylock finds Bassanio's mistake
so absurd that he is moved to an explosion of laughter and correction: "Ho no,
no, no: my meaning in saying he is a good man, is to have you understand
me that he is sufficient." Shylock thus empties the word "good" of its ethical
content, and since he has the upper hand in this transaction, seizes control of
the language in which the loan will be negotiated, displaces the language of
honor with the language of commerce, and returns immediately to an

evaluation of Antonio‘s business ventures:

. . he hath an argosy bound to Tripolis, another to the
Indies, I understand moreover upon the Rialto, he bath a
third at Mexico, a fourth for England, and other
ventures he hath squand'red abroad, —- but ships are
but boards, sailors but men, there be land-rats, and
water-rats, water-thieves, and land-thieves, (I mean
pirates), and then there is the peril of waters, winds,
and rocks: the man is notwithstanding sufficien, --
three thousands ducats, -- I think I may take his bond.
(1. iii. 16- 25)

At this point, a quibble occurs which Shylock uses to once again
impress upon Bassanio who is in control of the language, and therefore, the
negotiation. Bassanio replies "Be assured you may [take Antonio‘s bondl,"
using gauged in the sense of "satisfied, told for certain." Shylock replies, "I
will be assur'd I may: and that I may be assured, I/will bethink me." (1. iii.

 

 

142

27-7).

Bassanio's use of the imperative, “E assured," puts a subtle pressure
on Shylock to stop quibbling and accept Antonio's bond. It also may indicate
Bassanio's impatience and frustration at being in a less powerful position
than Shylock. Shylock, who in this negotiation is very sensitive to language,
immediately senses the pressure that Bassanio would like to exert, letting
Bassanio know that he will not "be assured" simply because Bassanio says he

should, but also changing the sense of assured to a commerical one,

 

"assurance" being Antonio's sufficient guarantee of the loan. Shylock will not
be diverted from the meaning that he will attach to words and to a
remarkable degree, he forces Bassanio to accept commercial meanings and to
negotiate in a language system informed by values that are largely
unfamiliar to Bassanio. Shylock's superior commercial position gives him the
power, initially, to impose a language on Bassanio.

Languages of love and commerce, play and earnest, also clash
significantly in the casket game set up by Portia's father. In the game for
Portia‘s hand, the 'Vvill of a living daughter" seems to be "curb'd by the will
of a dead father," for it is the father 's interpretation of the gold, silver and
lead caskets, and the inscriptions on the caskets, which will‘determine who
gets Portia's hand. Even from the grave, Portia's father exerts an
interpretive force that works to control events. Morocco and Arragon
approach the game with languages of interpretation which are unsuited to
decode the meaning of the caskets and their inscriptions. Morocco's first
mistake is that he he wants to exclude the language and dynamics of play
from the process of interpretation. He initially complains to Portia-

If Hercules and Lichas play at dice
Which is the better man, the greater throw

 

143

May turn by fortune from the weaker hand. (11. 1. 32-4)

Morocco's complaint already indicates that he lacks the spirit necessary
to pick the correct casket, which bears the inscription, "Who chooseth me
must give and hazard all he hath." Morocco does not want to give or to
"hazard," and Portia, knowing this, may be mockingly dropping a hint that
she knows Morocco will not perceive when she responds: "First forward to

the temple, after dinner/Your hazard shall be made." When Morocco picks

 

the gold casket, which promises "what many men desire," the language of
commerce and superficial appearance wins over the language of love. As
Frank Kermode notes, "Morocco supposes that Portia cannot be got by any
casket save the golden one, tacitly confusing her living worth with that of
gold, the value of gentleness with that of the best breeding metal."6 Arragon
chooses the language of commerce, the quid pro guo of fair dealing, over the
language of love, by choosing the silver casket, which promises him "as much
as he deserves." His presumption, in assuming that he deserves Portia, and
that he should get what he is entitled to, is mere arrogance (One wonders
whether Shakespeare intended such a play on Arragon's name.) Arragon‘s
long speech to himself about what he deserves also demonstrates a
defensiveness born of insecurity; Arragon erects his arrogance against the
uncertainty of life, but that uncertainty requires a playful rather than
fearful attitude. Only Bassanio, who in this instance is able to combine the
qualities of play and love, is able to choose the right casket. To be able "to
hazard" is to be able to play -- to participate in the gambles and
uncertainties of life with a lightness that Morocco and Arragon lack. To be
able to "give and hazard" is to possess the ability to sacrifice which is a
component of the ability to love. Thus, the ability to love and play are

married in the inscription of the lead casket, and the game of interpretation,

144

created by Portia's father for the earnest purpose of getting her a good

husband, filters out those suitors whose lives are governed by attitudes of

acquisitiveness, and insecurity.

One more example, perhaps, will confirm the importance in 1113

Merchant of Venice of the contest between playful and earnest

interpretations of language. This is the scene, significantly preceding the

trial of Act IV., in which Lorenzo, against all odds, tries to give a command to

Launcelot to serve dinner. Launcelot refuses to interpret Lorenzo‘s request

-- or his assertion that Launcelot has gotten one of the household servants

pregnant -- in anything b_lg a playful manner:

Lorenm:
Launcelot:

Lorenzo:

Launcelot:
Lorenzo:

Launcelot:
Lorenzo:
Launcelot:
Lorenzo:

Launcelot:

. . . the Moor is with child by you Launcelot!
It is much that the Moor should be more than
reason: but if she be less than an honest woman, she
is indeed more than I took her for.
How every fool can play upon the word! I think the
best grace of wit will shortly turn into silence, and
discourse grow commendable in none only but par-
rots: go in sirrah, bid them prepare for dinner!
That is done sir, they have all stomachs!
Goodly Lord, what a wit-snapper are you! then bid
them all prepare dinner!
That is done too sir, only "cover" is the word.
Will you cover then sir?
Not so sir neither, I know my duty.
Yet more quarrelling with occasion! wilt thou show
the whole wealth of thy wit in an instant? I prathee.
understand a plain man in his plain meaning: go to
thy fellows, bid them cover the table, serve in the
meat, and we will come in to dinner.
For the table sir, it shall be serv‘d in, -- for the meat
sir, it shall be cover'd, -- for your coming in to dinner
sir, why let it be as humours and conceits shall
govern. (III. v. 35-57)

I45

Humors and conceits indeed seem to be governing here, and we never
find out whether Lorenzo and Jessica get their dinner. Lorenzo contends that
Laucelot is merely an example of a more general social malady in which
communication is intentionally frustrated or diverted by turning'earnest
communication into joking word play. In the trial of Act IV, the process is
also demonstrated to work in reverse. While Launcelot stubbornly perverts
the meaning of an earnest request for dinner with a playful interpretation,
Shylock seeks to give a playful agreement a deadly earnest interpretation.

D D D

Shylock sows the seeds of his own destruction when he attempts to
wrest the legal/commerical system of Venice to extra com merical purposes.
In Venice, all ducats are created equal. 50 long as a person has money, his
status as the member of a minority religion or as an alien will be tolerated.
So long as a person does not break the law (which would interfere with
commercial activity) and gears his actions to the making of money, his
conduct and motives will be accepted by the state as "reasonable," though
some may judge him as morally odious. Shylock, however, in taking
Antonio's bond, is not motivated by the desire to make money, and in fact,
creates a bond which makes a monetary profit from the transaction
impossible. Both the circumstances of the band's creation and the language
of the bond remove the document from the sphere of commercial dealing in
Venice. Shylock abandons the com merical language that he had forced upon
Bassanio, and adopts the languages of play and love:

Shylock: I would be friends with you, and have your lgle,
Forget the shames that you have mind me with,
Supply your present wants, and take no doit
Of usance for my moneys, and you‘ll not hear me, --
This is 51941 offer.

Bassanio:

Shylock:

Antonio:

Bassanio:

Antonio:

Shylock:

Antonio:
Shylock:

Antonio:

146

This were kindness.

This kindness will I'show,

Go with me to a notary, seal me there

Your single bond, and (in merg: amt)

If you repay me not on such a day

In such a place, such sum or sums as are
Bxpress'd in the condition, let the forfeit

Be nominated for an equal pound

or your fair flesh, to be cut off and taken

In what part of your body pleaseth me.
Content in faith, I'll seal to such a bond,

And say there is much kindess in the jew.

You shall'not seal to such a bond for me,

I'll rather dwell in my necessity.

Fear not man, I will not forfeit it, --

Within these two months, that's a month before
This bond expires, I do expect return

Of thrice three times the value of this bond.

0 father Abram, what these Christians are,
Whose own hard dealings teaches them suspect
The thoughts of others! Pray you tell me this, --
If he should break his day what should I gain
By the exaction of the forfeiture?

A pound of man's flesh taken from a man,

Is not so estimable, profitable neither

As flesh of muttons, beefs, or goats, -- I say
To buy his favour, I extend this friendship, --
If he will take it so, -- if not, adieu,

And for my l_o_vg I pray you wrong me not.
Yes Shylock, I will seal unto this bond.

Then meet me forthwith at the notary‘s,

Give him direction for this merry bond --

And I will go and purse the ducats straight,
See to my house left in the fearful guard

or an unthrify knave: and presently

I'll be with you.

Hie thee gentle Jew.

The Hebrew will turn Christian, he grows Lind.
(III. i. 135-74;.underling is mine)

147

H. B. Charleton contends that Shylock, at this point, does not have an
intention to use the bond as a way to get revenge against Antonio.7 Rather,
Shylock makes a gesture of forgiveness and only later, after Jessica leaves
with Lorenzo, does Shylock seize upon the bond as a way of getting revenge.
On the other hand, given the following aside by Shylock, spoken just before
the band's formation, Shylock could be hoping from the beginning that

Antonio will default:

How like a fawning publican he looks.

I hate him [Antonio] 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.

If I can catch him once upon the hip,

I will feed fat the ancient grudge I hear him. . .
. . . Cursed be my tribe

If I forgive him. (I. iii 38-48)

Whatever Shylock's private intentions are, his stated intention is that
the forfeiture provision is merely a joke. Shylock twice calls the bond a
"merry bond" and the whole transaction a "merry sport". 8 Shylock even
pokes fun at Bassanio for suggesting that Antonio is putting himself in
danger by agreeing to forfeit a pound of flesh. Antonio also seems to
understand that the bond is in fact, a no interest loan, the pound of flesh
clause being but a jest: "I‘ll seal to such a bond,/And-say there is much
kindness in the Jew." A contract, or part of a contract, which is recognized
by the parties as being but a joke, and not part of an agreement which either
party intends to enforce, is simply n_ot enforceable. Neither an Elizabethan
nor a twentieth-century English court would even regard such an agreement

as a contract, because there is no serious mutual intent by the parties to be

148

bound by the agreement.

The context of the bonds formation is not only one of jest but of love.
Shylock says he wants to b_uy Antonio's love, demonstrating an unfamiliarity
with the discourse of love which complements Bassanio's unfamiliarity with
the discourse of commerce. But Shylock is clearly m to use the language
of love. Antonio may have a subterranean urge to martyr himself for
Bassanio‘s sake, but superficially he agrees to the bond because there is a
tacit understanding between him and Shylock that the bond will be
interpreted charitably, rather than literally. The entire transaction is framed
by two statements. Shylock begins by saying, "I would be friends with you
and have your love. . . This is kind I offer," and Antonio ends the
conversation with, "The Hebrew will turn Christian, he grows kind."

The dialogue of love and game which forms the context of the band's
creation is ephemeral and vanishes like the sound waves that sustain the
speech of the parties. As soon as Shylock, Bassanio and Antonio go their own
ways, the verbal context vanishes but the written product remains. The
bond is a text which has an ascertainable range of meaning within the ~
context of its creation, but may have another outside of that context. The
persistence and mobility of the bond as a written text allows Shylock to
radically decontextualize the bond, and to construct a different meaning by
placing the bond in a completely different context of interpretation. The
bond, essentially, will pass from an interpretive environment governed by
merry sport and love to a more restrictive environment governed by
literalness, legality, and the values of commerce, i. e., the environment of the
courtroom. In order to understand how Portia, as judge, deals with this
bond, it is necessary to take a brief diversion into sixteenth-century English

views of usury, the common law, and equity.

149

D D C)

With regard to usury, the social psyche of England was split during the
sixteenth century, as was that of Europe as a whole. The need to borrow and
the temptation to lend coexisted at once with a palpable fear of usury in
particular and the sin of avarice in general. As in so many other aspects of
their lives, the people of Renaissance England had one foot planted in the
medieval world, and anotherjfoot, more tentatively set in the modern. R. H.

Tawney summarizes the difference between the two perspectives as follows:

The most fundamental difference between medieval and
modern economic thought consists, indeed, in the fact that,
whereas the latter normally refers to economic expediency,
however it may be interpreted, for the justification of any
particular action, policy or system or organization, the former
starts from the position that there is a moral authority to which
considerations of economic expediency must be subordinated.9

In the early medieval economy, which was essentially static and
which was characterized by strong monopolies, the ban on usury tended to
make economic sense, and was supported from the pulpit with reference to
texts such as Deuteronomy xxiii: l9-23, Exodus xxii: 25, and Leviticus xxv:
35-7. ‘0 In an expanding, capital hungry economy, such as has generally
characterized Europe since the late middle ages, outright bans against all
forms of usury made little sense, and were often circumvented with all the
creativity that financial and legal minds could muster. The experience of
Florence was typical of the back and forth war between conscience and

expediency which engaged governments trying to develop a policy on usury:

Florence was the financial capital of medieval Europe; but even
at Florence the secular authorities fined bankers right and left

150

for usury in the middle of the fourteenth century, and fifty
years later, first prohibited credit transactions altogether,
and then imported Jews to conduct business forbidden to
Christians. 11

The experience of England in the sixteenth-century was as
schizophrenic as that of Florence. In 1487, an act was passed prohibiting the
taking of interest, but was easily circumvented because of ambiguity.12 An
act of 149 5 again forbade interest, attempting to broaden and strengthen the
definition so that certain devices by which the first law was evaded (e.g. an
agreement to sell something to the "lender," and then buy it back on a
specific date at a higher price) would be outlawed. The act of 1545 allowed
the taking of interest up to 10:, but those who charged more were subject to
damages in treble the value of their profits and were to be punished with
imprisonment. The act drew great blasts from the pulpit and from an
aristocracy which was rapidly sinking into debt.13 In 1552 the 1545 act
was repealed, and the taking 01' interest for any rate was outlawed. The
1552 ban proved to be utterly unenforceable. The demand for capital was
simply too great. In 1571 the 1552 act was repealed, and the 1545 act
revived, with certain qualifications. The taking of interest over 10x was
illegal, and all such agreements were void. Interest under 10% was allowed,
with the following qualifications: the debtor had the right to refuse to pay
the interest, or to recover interest paid. What seems like a very minor
concession toward usury was in fact major. Though a debtor technically had
the right to renege on his creditor and return only principle, such an action
would effectively destroy the debtor's credit. Those who needed loans from
time to time, as did many merchants, would not dare take legal action that
sealed them off from financial markets.

151

As R. H. Tawney notes, in sixteenth-century England, books against
usury were legion, and this proliferation of anti-usury discourse continued
into the seventeenth-century. In Tawney“: introduction to A Discourse Um
I_J_sury by Thomas Wilson (1572) a sampling is provided: A General Discourse

against the damnable sect of Usurers (1578) The Death of Usury, or the

Disgrace of Usurers (1594) A Tract ggaynst Usurie, Presented to the High
court of Parliament (1621), Usurie arrggn’ ed and condemned (1625) and

Usury is injury (1640). The topic of usury was not particularly hot in 1596
when Shakespeare appears to have written The Merchant of Venice. Usury
was simply a subject of continuous emotional attention. At the time, the
Jewish population of Britain was insignificant,1 4 and as far as is known, did
not participate in usury. If Shylock was a focus for the animous of
Shakespeare's audience, it was an animous generated by the Christian money
lenders of England, people like Hugh "the great" Audley, who made a fortune
during the reign of James I as a usurer and was not above charging
exorbitant interest when he could get away with it.15

Despite contemporary abuses of usury, the audience of the Merchant
of Venice was not likely to have been uniformly united against usury pe_r
s_e, and I do not believe that we can assume an automatic reaction against
Shylock simply because he is a usurer. There may well have been usurers
in Shakespeare‘s audience, merchants who dealt with usurers to no great
detriment and who were happy to obtain loans, aristocrats deeply in debt
who hated usurers, and a whole spectrum of people inbetween. Tawney
delineates two differing theological attitudes toward usury in the
sixteenth-century, and people in Shakespeare‘s audience probably reflected

this division:

152

Conservative writers took advantage of the section in the [1571]
Act declaring that "all usurie being forbidden by the lawe of
God is sinne and detestable," to insist that the statute had, in
reality, altered nothing. . . . Men were subjects . . . of the Church
as well as of the State; the law of the church condemned all
interest as usurious. . . The more liberal theologians, working on
the tradition which had started with Calvin. . . continued to
reply to them with arguments designed to show that, since land
and capital were interchangeable investments, interest was
ethically as justifiable as rent, and that the crucial point was not
the letter of the law which condemned the breeding of barren
metal, but the observance of Christian charity in economic as in
other, transactions. 16

Given the liberal Christian position toward usury, there is some logic
in making Shylock a Jew. If usury is only acceptable within a Christian
context, then the status that Shylock lacks is perhaps as important as the
Jewish status that he has. In this respect, Shylock could as well be a Moslem,
or an atheist. But his Jewishness immediately conjures up the Christian
paradigms of Jewish legalism versus the Christian freedom that Paul sets
forth, for example, in Romans 8 and 13, and Galatians 5.17 The Christian
position toward the law is that it is impossible to obey perfectly, that men
are saved by God's love, rather than their own attempts to obey the law, and
that the law is but an imperfect attempt to embody the rule of love. The
theological opposition of the Old Testament Old Law and the New Testament
New Law, which is love.18 finds a parallel contrast in the English system of
law and equity. The common law courts tended to be governed by the
mechanical application of rules, but equity, especially in its early days, was
governed by a respect for the spirit of the law. It sought to achieve results
which conformed to broad notions of fairness, and to temper the rigor of

legal rules with mercy. Thus equity was often seen as a more “Christian"

 

153

branch of the English judicial system than was the common law. The liberal
position toward usury called upon love, as a higher law, to ameliorate
unloving conduct that is often legal. Broadly speaking, this was also the
"equitable" as opposed to the "legal" position. Shylock's Jewishness would
probably be an immediate stimulant to the anxieties of Shakespeare's
audience, for how could one expect a non-Christian -- and particularly a Jew,
faithful to the Old Law of the Old Testament» to exercise that Christian
charity which ameliorates the evils of law in general and usury in
particular? Shakespeare's audience, of course, did not deal with Jewish
usurers. Shylock's Jewishness would have been significant mainly as an
emblem of the un-Christian conduct of Christian usurers the audience
actually dealt with.

The liberal argument that usury could be tolerated, so long as the
parties governed themselves by Christian charity, existed as more than a
theoretical contention. Elizabethan policy was to encourage the settlement of A
disputes between debtors and creditors out of court, using ministers, justices
of the peace and prominent members of the community as mediators who
encouraged the parties to settle as Christians. The spirit in which this was
done recalls that with which Paul had advised the Corinthians to stay out of

court:

The very fact that you have lawsuits among you means you have been
completely defeated already. Why not rather be wronged? Why not

rather be cheated? 19 (I Corinthians 6: 7-8)

According to R. H. Tawney, the general policy of the Privy Council with

regard to creditor and debtor disputes was

154

to try to secure the settlement of disputes out of court through
the good offices of a friend, an influential neighbour, or when
necessary, an arbitrator appointed by itself. The justices of
Norfolk are instructed to put pressure on a money-lender who
has taken 'yery unjust and im moderate advantage by way of
usury." The Bishop of Exeter is advised to induce a usurer in his
diocese to show "a more Christian and charytable consideration
of these his neighbours.“ . . . It is evident that under Elizabeth
the government kept sufficiently in touch with the state of
business to know when the difficulties of borrowers threatened
a crisis, and endeavoured to exercise a moderating influence by

bringing the parties to accept a compromise.20

In addition to the liberal and conservative theological positions on
usury, Tawney identifies a third position which had obtained a great deal of
strength by James‘ reign, and this is the "modern" position that the spheres
of business and religion occupy separate realms -- a "dissociation of

sensibility" of profound consequences:

[Wihether theologians and moralists condemned all interest, or
only some interest, as contrary to morality, the assumption
implicit in their very disagreement had been that economic
relations belonged to the province of religion. That buying and
selling, letting and hiring, lending and borrowing, and all other
economic transactions were one department of ethical conduct
and to be judged, like other parts of it, by ethical critieria; that
whatever concessions the State might see fit to make to human
frailty, a certain standard of economic morality was involved in
membership of the Christian church; that it was the function of
ecclesiastical authorities, whoever they might be, to take the
action needed to bring home to men their economic obligations. .
. . It was precisely this whole conception of a social theory
based ultimately on religion which was being discredited.
"Merchants' doings," said the man of business in Wilson's
dialogue [Thomas Wilson's AW] "must not be
overthrown by preachers and others that cannot skill of them."
While rival authorities were discussing the correct

155

interpretation of economic ethics, the flank of both was turned
by the growth of a body of opinion which argued that economics
were one thing and ethics another. The creed of the commercial
classes was a doctrineless individualism. By the reign (1' James
I they had almost come to their own. . .

"Doctrineless individualism" not only characterizes Shylock's belief that he
should be allowed to sacrifice Antonio, because according to a contract, he
owns a pound of Antonio's flesh, but as Shylock himself indicates, it

characterizes Venice:

You have among you many a purchased slave,
Which like your asses and our dogs and mules
You use in abject and in slavish parts,

Because thou bought them. Shall I say to you,
'Let them be free! Marry them to your heirs!
Why sweat they under burdens? Let their bed
Be made as soft as yours, and let their palates
Be seasoned with such viands'? You will answer,
The slaves are ours." (IV. i. 90-8)

If in the end, Shylock becomes a scapegoat for the sins of Venice, he reflects
as much sin as he is forced to bear.
Cl E] El

Today, the action which Shylock brings against Antonio for the
enforcement of the bond would be known as an action for summary
judgment. There is no question of fact for the court to decide, the only fact
being the language of the bond, which both Antonio and Shylock concur is
the language they agreed to. The only question for the court is legal: How
should the language of the bond be interpreted, or more precisely, what legal
effect should the court give the language? Thus, there is a contest, once

again, over the meaning which language will carry. The interests involved in

 

 

 

156

the contest are manifold, and of great political importance, as Portia
recognizes when she concedes the constraints on her interpretation of the
bond. The primary interest of Venice is to preserve its reputation as a
center of trade and commerce in which all nationalities are welcome to do
business. All ducats are created equal. Although the Duke does not want to
see Shylock cut a pound of flesh out of Antonio, he is perfectly willing to let
Shylock go ahead, if that is what is necessary to sustain the commercial
reputation of Venice. Portia acknowledges the constraint when Bassanio

urges her to avoid it:

Wrest once the law to your authority, --
To do a great right, do a little wrong, --
And curb this cruel devil of his will. (IV. i. 211-3)

But if the law becomes unpredictable, and prejudiced in favor of
Venetians, then Venice will lose its position as the premier financial center
of the Mediterranean. The ducats will go elsewhere. Portia's response,
essentially, is that she must follow the law, for the very basis of Venice’s
existence is that business will be conducted according to settled rules upon

which the parties involved can rely:

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. (IV. L 214-218)

For the reasons that Portia alludes to, Venice in fact was a model of

the "inexorable administration of justice."22 For Venice, justice paid. In

|ames I and the Politics of Literature, Jonathan Goldberg argues that

 

157

Englishmen may have had a more positive view of Venetian government —-
the view that Venice was an ideal state in which the wheels of justice ground

even-handedly and rationally, albeit somewhat impersonally:

The Venice known to Englishmen at the opening of the
seventeeth century was a compound of. . . facts and . . . myth.
[The Commonwealth and Government of Venice, by Contarini
and translated by Lewes Lewkenor in 1599 was, according to
J. G. A. Pocock) the most "mythical" of accounts of Venice: '"l‘he
mito de Venezia consists in the assertion that Venice possesses
a set of regulations for decison-making which ensure the
complete rationality of every decision and the complete virtue
of every decision-maker. Venetians are not inherently more
virtuous than other men, but they possess institutions which
make them so. . . to an Elizabethan mind, Venice could appear a
phenomenon of political science fiction."

Venice, Contarini writes, is a paragon of "institutions and
lawes". . . Man as a naturally political animal finds his
fulfillment in Venice, where law is the product of consultation,
rationality overcomes private desire, and the state, in its
complex interlocking of princely rule in the doge, aristocracy in
the senate, and democracy in the council of citizens presents the
perfect order of the Polybian mixed state. . . a mirror of perfect
government, uncorrupted justice.23

The "myth of Venice" is that a machine of justice can be devised that
will always yield the correct legal results despite the fallibility of those who
operate the machine. This is also the myth that the English common law
system, particularly under the guidance of Edward Coke, tried unsuccessfully
to foster: that it was a system of pure rationality and justice. The bind in
which Venice finds itself, when Shylock demands the enforcement of his
bond, is a satirical deflation of the myth of Venice and of the English
common law. What is lacking in the Venetian and English common law
systems, obviously, is mercy -- the recognition that fixed rules, rigidly

 

158

applied, often lead to injustice. The significance of this to W
_Y_e__n_i_ce is that Portia, as judge, must uphold the myth of Venetian justice
and infallibility, and therefore must never be perceived as wresting the law
to her authority, as Bassanio would have her do. Yet, the mercilessness of
enforcing the bond would also be an embarassment to the Venetian legal
system. It is upon the horns of this dilemma that Portia appears to be stuck.
Portia‘s first tactic, therefore, is to avoid making any legal ruling at all. She
tries to do just what the Privy Council of England would have suggested: get
the parties to settle amicably, out of court.

Portia‘s famous speech on mercy, which many critics have associated
with the law of equity, can be understood as an attempt to return the text of
the bond to its original environment of interpretation -- the discourse of love

in which the bond was formed:

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,
"I‘is 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 heart 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,

 

159

Which if thou follow, this strict court of Venice
Must needs give sentence ‘gainst the merchant
there. (IV. i. 180-202)

In this passage, Portia examines the intimate connection between
language and action. It is the language of mercy -- prayer -- that teaches
"us all to render/The deeds of mercy." Using the proper language is a
prerequisite for committing the proper action. The language of justice is an
inferior discourse because it is unmitigated by love, and those who are
habituated to the language of justice can only produce loveless acts. Rather
than being able to give and hazard all, they are limited to the morality of
guid pro guo. Portia implies, of course, that Jews, characteristically, are so
habituated: ("therefore Jew/ though justice be thy plea") and in this would
have been echoing Anglican com monplaces regarding the opposition of
Christian charity and Jewish legalism. She forcefully argues that the context
in which Shylock would like the bond to be interpreted -- the community
and language of justice -- is less appropriate than the language of love. She
gives Shylock a chance to put the bond back into the context of its formation,
and to give it's language the effect of a "merry bond," one in which (the "kind"
offered by Shylock is indeed the "kindness" which Bassanio and Antonio
understood Shylock to be offering (Act 1. iii. 138-40)

A modern court, or an Elizabethan court of equity (Chancery),
interpreting a contract would initially attempt to give the language of the
contract the effect that the parties intended when the contract was drafted,
the parties‘ statements as to their intention being given great weight. If the
intentions of the parties were impossible to determine, the court would
attempt to give the contract a reasonable interpretation given the business

customs of the community. In effect, Portia follows these steps. Her plea to

 

160

Shylock to be merciful, if successful, would yield the same result as
interpreting the bond according to the expressions of "love," "friendship,"
"kindness," "merry sport," "merry bond," and "forgiveness," which Shylock
himself used to gain Antonio's agreement to the flesh-bond.

Shylock, however, blocks Portia's attempt to reconstruct the
interpretive environment within which the bond was first written. The
implication is that in the literal and legalistic world of Venice, proof as to the
intent of the parties (i.e., proof of what they said at the time the bond was
formed) would not be allowed by the court -— but that the intent of the
parties could only be urged in settlement negotiations. This also would have
been the case in English court of common law, pursuant to the Statute of
Frauds, which severely limited proof of oral contracts or oral portions of
contracts. Portia's next step therefore is to persuade Shylock to give the

bond an interpretation that is commercially reasonable:

Portia: Shylock, there's thrice thy money off'red thee. . .
be merciful,
Take thrice thy money, bid me tear the bond.
(IV. i. 225, 231-2)

To take a pound of Antonio's flesh as a forfeiture penalty is, according even

to Shylock's earlier ad mission, commerically absurd:

Pray you tell me this, --
If he should break his day what should I gain
By the exaction of the forfeiture?
A pound of man's flesh taken from a man,
Is not so estimable, profitable neither
As flesh of muttons, beefs, or goats, -- (1. iii. 158-63)

Com mercially, a bond to which no profit attaches simply does not

161

make sense. So Bassanio's settlement offer can be seen as an effort to give
the bond a commerically reasonable if not charitable meaning. Shylock's
reply emphasizes how far he has parted from the lOgic of thrift and the

language of commercial Venice:

if every ducat in six thousand ducats
Were in six parts, and every part a ducat,
I would not draw them, I would have my bond! (IV. i. 85-7)

For Shylock, the bond has become an instrument to achieve a
quasi-religious purpose: the sacrifice of Antonio. Furthermore, Shylock has
sworn an oath that he will accept no interpretation that thwarts this

sacrifice:

An oath, an oath, I have an oath in heaven, --
Shall I lay perjury upon my soul?
No not for Venice. (IV. i. 224-6)

Antonio himself is drawn into a religious interpretation of his
situation. The part of Antonio which desires to be martyred for Bassanio and

which wants to keep Bassanio in debt forever finds a perfect instrument in

 

Shylock; Antonio's conformance to Shylock‘s language shows these two men

resonating in the strangely cooperative relationship of victim and victimizer:

Antonio: 1 am a tainted wether of the flock,
Meetest for death, -- the weakest kind of fruit
Drops earliest to the ground, and so let me;
You cannot better be employ'd Bassanio
Than to live still and write mine epitaph.
(IV. i. 114-18)

The legalistic formalism which Shylock demands ("1 stand for

162

judgment. . . . I stand for law"; IV. 1. 103, 142) was a characteristic of
common law administration in such courts as the King's Bench and Common
Pleas. As critics have recognized,24 Shylock‘s confrontation with Portia pits
to two very different legal styles against each other: that of the common law
and that of equity. Common law, particularly in the fourteenth and fifteenth
centuries and to a large degree in the sixteenth, was characterized by many
faults. As a system, it was dilatory and expensive. Rules for the service of
process (getting and delivering bills of complaint and other pleadings) were
technical and inadequate. The system of pleading (Pleadings are the
documents by which the parties to a lawsuit frame the issues for the court;
they include, among other documents, the complaint, answer, and rejoinder)
was formulaic, tricky, and "becoming so rigid that litigants who had
substantial justice on their side might often be defeated."25 Cases were often
decided not on the basis of the facts involved and the applicable substantive
law, but on whether the highly technical rules of conducting a lawsuit had
been meticulously followed. The attraction to Chancery in its early days was
that the judges attempted to render just decisions based on the facts of the
cases. Judges in Chancery were the first to examine the meaning of
contractual language in light of the circumstances in which the contract was
created and the intention of the parties. "The chancellor could say with truth
that 'a man shall not be prejudiced by mispleading or by defect of form, but
he shall be judged according to the truth of his case!"26

Portia wants to give the bond an equitable construction in order to
avoid the absurd result that Shylock's legalism seems to demand. In doing
so, she is following the standard Elizabethan conceptions of equity that
where the law would require an unreasonable result, equitable principles

should be applied:

 

163

[Elquity is no other thing but an exception to the Law of God or
of Reason from the Generali Rules of the Lawe of Man, when
they by reason of there Generallitie,wou1de in any partiulcar
Case, judge against he Law of God, or the Lawe of Reason: the
which exception is generally understood in every Generali rule
of every Positive Lawe. . . . Equity followeth the Lawe in all
particular Cases, where right and Justice requires,
notwithstanding that the General Rule of the Lawe be to the
contrary.”

Equity's spiritual homolog is Christ's summary of the ten
commandments as "Love." When any general legal rule would lead to a
result that is contrary to the rules of God or of reason, general conceptions of
justice will apply. To take a man's life for being late in the payment of a
bond would certainly have been understood by an equitable court as
contrary to the rules of God or Reason and a "reasonable" forfeiture or
interest rate would have been deter mined.

Portia gives Shylock a great opportunity to demonstrate charity and
forgiveness. She waits until the last instant to reprieve Antonio, giving
Shylock the utmost chance to be merciful. It is the same opportunity which
Vincentio and Marianna give Isabella in Measure fpr Measpre, and one
which, had Shylock taken it, might have enobled him before Venice despite
his status as an alien and a Jew. But Shylock does not rise to the occasion
and for him the play is indeed a spiritual tragedy, not so much because he is
forced to convert to Christianity, but because he fails to demonstrate the
love, generosity or forgiveness which Renaissance Englishmen held to be the
foundation of Christianity, and which is so powerful coming from a truly
wronged human being.

In response to Shylock's rejection of either a charitable or a

164

commercially reasonable interpretation of the bond, and his demand for a
"literal" interpretation, Portia ad ministers poetic justice. There is an
equitable maxim that he who seeks equity must do equity. Since Shylock
seeks a "literal" interpretation, and nothing else, that is what he gets. But
Portia demonstrates that in literal interpretation -- interpretation without
reference to an extra-textual reality -- even the meaning Shylock wants can
be made to disappear.

Shylock has a misconception about language. He is the most naive
kind of formalist. He believes that the words on the page can maintain a
fixed meaning which transcends reference to the time and place of utterance
or interpretation. The theoretical basis for Shylock's trap of Antonio is that
Antonio does not appreciate the fixity of meaning that attaches to, written
language. Shylock believes that the bond has a "literal" meaning which the
bond carries from one context to another. For Shylock the original meaning
of the bond, which was formed in a context of love, honor and play, ceases to

exist once that historical moment is past, but a permanent, literal meaning

 

does continue to exist. Portia's lesson to Shylock is that "literal"
interpretations are the most shifty and evanescent of all. Once Portia follows
Shylock‘s suggestion and does away with extra-textual constraints on
interpretation, the play of signification truly becomes "free" in the most
Barthesian sense and Portia beats Shylock at his own game. Given the
ground rules for interpretation that Shylock has demanded, Portia‘s eccentric
interpretation of the bond is as reasonable as Shylock's, the only difference
being that Portia has the m of Venice at her disposal to legitimate her
interpretation. And arguably Portia preserves the rule of law in Venice by
conforming to a legal literalism that no one in the play questions.

Portia's challenge is to satisly Shylock‘s overt demands for literal

165

interpretion while saving Antonio's life and preserving the integrity of the
rule of law in Vienna. Portia's ruling, which makes Shylock's revenge too
dangerous for him to exact, is based on three equally sufficient grounds, the
first two of which are non-sensical within the context of legal reality, but
which are logical within the context of the play.

Portia‘s third ground is that the contract violates Venetian law against
conspiring to harm a Venetian citizen. This is very close to a ruling that the
bond violates public policy and would be an obvious and unassailable ground
for denying the forfeiture provision.

The first ground of Portia‘s decision is based on her interpretation of

the word "flesh":

This bond doth give thee here no jot of blood,

The words expressly are "a pound of flesh":

Take then thy bond, take thou thy pound of
flesh,

But in the cutting it, if thou does shed

One drop of Christian blood, thy lands and goods

Are (by the laws of Venice) confiscate

Unto the state of Venice (IV. i. 301-8)

Critics have argued that Portia's interpretation of "flesh" makes no
legal sense because it assumes the parties had contracted to do an impossible
action, and a court will start out with the assumption that the parties to an
agreement do not contract to do the impossible. W. Moelwyn Merchant sets

forth this objection as follows:

[Portia‘s] quibble on the spilling of blood denies another legal
maxim that any right assumes the conditions which make the
exercise of the right possible; in this instance the right to take a
pound of flesh presupposes the necessary condition of

166

blood-shedding.”

The same objection can be raised against the second ground of Portia's

decision, her interpretation of the word "pound":

Shed thou no blood, nor cut thou less nor more

But just a pound of flesh: if thou tak'st more

Or less than a just pound, be it but so much

As makes it light or heavy in the substance,

Or the division of the twentieth part

Of one poor scruple, nay if the scale do turn

But in the estimation of a hair,

Thou diest, and all thy goods are confiscate. (IV. i. 321-28)

As Shylock rapidly realizes, it is impossible to measure an exact pound
of anything. Any court, trying to give effect to the ppmmepiggl intentions of
the parties would interpret flesh as including blood, and one pound as being
one pound aimless. But the most crucial point which this analysis
misses, even from the standpoint of legal realism, is that Wm
WM. And because it is not a commercial bond, Portia is under
no obligation to give it a com merical interpretation. In fact, the bond is a
"merry" bond, not an earnest bond, and Portia's playful interpretation of
"flesh" and "bond" aetually gives effect to the stated intentions of the parties
at the time the bond was made and thus, paradoxically, her absurd
construction of "flesh" and "pound" yields the most reasonable interpre-
tation of the bond. Shylock's effort to detach the bond from its original
context of interpretation sets up a situation in which the play of signification
is unrestricted. In this arena of textual play, Portia can do with the bond
what she wants. (That she realizes this makes her the intellectual superior

of everyone else in the scene and the most adept player in the game of

167

interpretation.) The irony is that by giving Portia this chance to play, Shylock
has given her the opportunity to recreate an interpretive environment that
replicates the one in which the bond was formed. Shylock's demand for rigid
legality ends in giving the bond the exact effect that he had publicly
proclaimed the bond should be given when he and Antonio formed their
agreement. The "merry“ bond, created in an atmosphere of game and
charity is finally, as a result of Shylock‘s own demands, interpreted by the
court in an equally "merry" way.

Portia's sentence of Shylock has been characterized, with some justice,
as uncharitable and unequitable.29 Shylock loses the principle of the bond.
He is forced to convert to Christianity. He is threatened with execution, his
goods are confiscated, but (under certain restrictions) returned. On the other
hand, Shylock had attempted, in effect, to defraud Antonio of his life.
Shylock's forced conversion to Christianity may not sit well with the
post-holocaust, largely post-Christian audience of 1988, but to the Christian
audiences of Shakespeare's day, this would have been perceived as comic
rather than tragic. With the exception of a fine (which perhaps is also
remitted), Shylock gets the use of his goods for his lifetime with the
provision that he leave them to Jessica and Lorenzo on his death. The
remission of Shylock‘s death sentence, his goods, and perhaps his fine, when
apparently for Shylock, all was lost, is the final extension of the playful
impetus Portia gives to the trial. Antonio is liberated by play and it is this
liberation that makes his charity to Shylock possible.

I] U D

As Portia and Nerissa return to Belmont after their judicial adventure,
in a passage of calm beauty they describe the sounds and sights of the night.
Like Theseus and Hippolyta trying to make sense of the tale told by the four

168

Athenian lovers, Portia and Nerissa, on their journey home, find the time and

tranquillity that often in Shakespeare's drama preceeds the experience of

wonder and insight. Although Portia and Nerissa do not refer to the case of

the bond, what they say is inextricably connected with, and perhaps

motivated by, their experience in Venice:

Portia;

Nerissa:
Portia:

Nerissa:
Portia:

Nerissa:
Portia:

That light we see is burning in my hall:

How far that little candle throws his beams!

50 shines a good deed in a naughty world.
When the moon shone we did not see the candle.
So doth the greater glory dim the less, --

A substitute shines brightly as a king

Until a king be by, and then his state

Empties itself, as doth an inland brook

Into the main of waters: -- music -- hark!

It is your music (madam) of the house.
Nothing is good (I see) without respect, --
Methinks it sounds much sweeter than by day.
Silence bestows that virtue on it madam.

The crow doth sing as sweetly as the lark
When neither is attended: and I think

The nightingale if she should sing by day
When every goose is cackling, would be thought
No better a musician than the wren!

How many things by season, season‘d are

To their right praise and true perfection!

(V. i. 89-108)

This conversation, in which Portia and Nerissa muse over the powers of

context, is a philosophical recapitulation, in pastoral guise, of the lesson of

‘Shylock's bond. Context changes our appreciation and understanding of

everything. The night gives a special virtue to the candle, the nightingale,

and the music from Portia's house. The king's substitute only seems bright

when the king is gone. Portia, the self-proclaimed "unlesson‘d girl,

169

unschool‘d, unpractised" who is "not bred so dull but she can learn" (111. ii.
159, 161) can prove her virtue only outside the context of idyllic Belmont
and in the context of trial. Bassanio will only appreciate her virtue fully
when she proves to him, through the ring trick, that she indeed was the
judge who decided Antonio's case.

Similarly, a bond often seems to mean one thing when it is created
and another in court. Stripping the bond of its original interpretive
environment perverts its meaning in the same way that a nightingale's song
would be perverted "if she should sing by day/when every goose is
cackling." In other words, "Nothing is good without respect," without relation
to the circumstances which allow its qualities to be perceived. The bond
between Shylock and Antonio can only be understood outside the context of
legal formalism and within the context in which it was created. Only Portia's
genius, which turns a deadly formal proceeding into a playful one, allows the
original meaning of the bond to be effected and preserves the mythic virtue
of the Venetian legal system by adhering to the spirit of the law through a
playful adherence to the letter.

CHAPTER 3

Staging Justice: The Trial Scenes of Measure for Measure

A prince must also show himself a lover of merit,
give prefer ment to the able, and honour those who
excel in every art. . . He ought, at convenient
seasons of the year, to keep the people occupied
with festivals and shows; and as every city is
divided either into guilds or into classes, he ought
to pay attention to all these groups, mingle with
them from time to time, and give them an example
of his humanity and munificence, always
upholding, however, the majesty of his dignity,
which must never be allowed to fail in anything
whatever.l (Nicolo Machiavelli. The Prince)

It is a trew old saying, That a King is as one set on
a stage, whose smallest actions and gestures, all the
people gazingly doe behold: and therefore although
a King be neuer so praecise in the discharging of
his Office, the people, who seeth but the outward
part, will euer iudge of the substance, by the
circumstances and according to the outward
appearance, if his behauiour bee light or dissolute,
will conceiue prae-occupied conceits of the Kings
inward intention: which although with time, (the
trier of all trewth,) it will euanish, by the euidence
of the contrary effects, yet interim patitur iustus;
and prae-iudged conceits will, in the meane time,
breed contempt, the mother of rebellion and

disorder.2 (James 1. WM)

If, as Jacques says, all the world is a stage and all the men and women
merely players, then drama, when it holds the mirror up to nature, reflects a

process which is unavoidably theatrical. For Shakespeare and his audience

 

171

the theater provides a space in which the fictions, rituals and performances
of life can be revealed and then examined, new roles can be tried and
problems imaginatively confronted. Drama can help to preserve a social
order by celebrating and reinforcing the fictions and rituals that are already
in place or it can subvert a social order through its power to reveal fictions
which would conceal themselves as such. Through its re-creative power,
drama can also become a dynamic force of social change, suggesting
alternative roles and fictions for its audience to live by.3

Trial is one of man's most theatrical institutions, and this, perhaps, is
why the trial scene was so tempting to Elizabethan dramatists.‘I A trial not
only has characters with well defined roles (judges, lawyers, parties, jurors,
witnesses, and bystanders) but rules governing dialog (the wealth of
procedural rules specifying, often with utter precision, what participants can
say and when they can say it) and blocking (for instance, how close an
attorney can get to a witness, whether the lawyers and parties must stand or
sit or approach the judge). Furthermore, the criminal trial even
approximates genre requirements, having the potential to end as comedy,
with the threat to the defendant‘s life overcome, or as a tragedy ended by
execution. One could say that once the judicial machinery is put in motion, a
trial is a play that writes, produces and performs itself, all at the same time
--- and in Jacobean England, where criminal trials were open to the public,
there was almost always an audience. '

Trial also has ritualistic aspects. For the accused, a criminal trial is a
rite of passage, involving a potentially enormous change in status. If.
“Vindicated,” the defendent will be reinitiated into society and resume a
condition approacm his former status, though even the stigma of being

tried leaves its unalterable impression. If convicted, the accused faces

172

exclusion from society as a whole, initiation into the society of prison, and
perhaps undergoes a "change of status" as drastic as execution. For society,
the revelation and punishment of criminal activity is a purification ritual.
Societal beliefs in morality and order are reaffirmed while evil, in the form
of the criminal, is isolated, stigmatized, and eliminated. Even if the
adjudication results in an incorrect verdict, the ritual benefits still accrue to
society unless it becomes apparent that the decision was wrong or that the
judicial system is corrupt. The theatricality of trial and its ritual significance
are mutually reinforcing, and together, they work to generate state power
and legitimate its use.

In Measure for Measure Shakespeare and the King's Men put the

 

theatricality and ritual of trial on stage for examination. Beginning with the
problem of a Duke who does not like to stage himself to the people‘s eyes,
and ending with a Duke who has become, perhaps, an excessively
flamboyant producer/director/actor, Measure for Measure confronts the
theatrical and ritual aspects of adjudication at every turn. The play5
contains five scenes in which part or all of an adjudication is dramatically
presented: Act II. i, in which Escalus and Angelo try Pompey and Froth, Act
II. ii and iv., in which Isabella pleads for the life of her brother Claudio, Act
111, ii., in which Escalus sentences Mistress Overdone, and Act V., in which
almost every major character of the play stands trial. Altogether, ten
characters in the play stand trial, on or off stage, for one or more offenses:
Claudio and Julietta, Pompey, Froth, Mistress Overdone, Barnardine, Lucio,
Angelo, Isabella, and Duke Vincentio as Friar Lodowick. The scenes in which
the fate of these characters is determined engages the audience on at least
two levels. First, there is the level of primary dramatic concern for what

happens to these characters as 'people"; we are involved with how each

 

I73

character's case will be decided. On a more profound level, the play forces
the audience to confront its own legal system -- to ask the questions, "What
i_s_ a trial and what shpul_d it be?"
E) D D

In the self-consciously theatrical age of Renaissance England,6 it is not
surprising that the Tudor and Stuart governments had a particularly
sophisticated sense of trials theatrical possibilities. Trials became
elaborately crafted rituals, connecting the prince, God and people through
the process of judgment. These judicial productions were consciously
staged, scripted, and performed to a remarkable degree, and as we shall see,
in some cases had "surprise" endings. The trials 01‘ Sir Walter Raleigh, and
his "co-conspirators" Cobham, Markham and Grey were masterpieces of
theatrical trial, and coming about six months before the first performance of

Measure for Measure had, I believe, a great influence on that production. I

 

will discuss those trials and their relationship to Measure for Measure at
length, but first I would like to briefly examine theatricality as a pervasive
part of Q trials during Shakespeare's period.

First, let us examine scripting. As an example, consider the liturgical

uniformity of a criminal arraignment at an assize:

The prisoner, whom we shall call John Style, was called to the
bar and addressed by the clerk: 'John Style, hold up thy hand.‘
This was not a mere ceremony, but an acknowledgement by the
prisoner that he was the person indicted. The clerk then read
the indictment, paraphrasing it into English and into the second
person: Thou art here indicted by the name of John Style, late
of London, yeoman, for that thou. . .' It was necesary that the
indictment itself be in Latin, but the prisoner was not entitled
to have it read in Latin, nor to have copy of the original, unless
he could assign some error in law upon hearing it. After
reading the indictment the clerk asked: 'How sayest thou, John

174

Style, art thou guilty of this felony as it is laid in the indictment
whereof thou standest indicted or not guilty?‘ If the prisoner
denied the charge he pleaded “not guilty,’ to which the clerk
replied: 'Culprit, how wilt than be tried?'7

To this question, only one answer was accepted: 'By God and by country."
Any other answer had the same effect, legally, as if the prisoner had stood
mute. Thus, even the defendant had to follow a script which sacralized the
proceedings, implied his own desire to be tried, and reaffirmed the power of
the state.

Executions were often as carefully scripted as indictments. The person
convicted was expected to say a few words in apology, ask the queen's or

king's forgiveness, and then go to his death:

Almost every prisoner said a few words, some a fair number,
and what they had to say was listened to carefully by the
sheriff and the chaplain, who quickly intervened to silence the
speaker should he say something deemed inappropriate. In
1594 a catholic priest named William Dean had his mouth
gagged with a cloth and was nearly suffocated because his
words were thought hurtful. What was to be permitted in this
respect at the execution of Essex in February 1601 was clearly
laid down in a letter from Cecil and others to the constable and
lieutenant of the Tower. The prisoner was to confine himself to
confessing his treasons and 'his sins towards God', and to his
'hearty repentance and earnest and incessant prayers to God for
pardon'. If, however, he entered into 'any particular declaration
of his treasons or accusation of any of his adherents therein' the
constable and the lieutenant were to forthwith break him from
the course' as the time was 'not fit.‘ . . . These instructions in
some form were doubtless passed on to the condemned man.8

Perhaps the most theatrical ele ment of trial was the "set," the whole
aura created by costuming the judges and lawyers in robes, placing the judge

175

on a raised platform, conducting trials in large "theaters" such as

Westminster Hall, or the Guildhall in London, so that spectators could be

accommodated. Particularly at the assize sessions, when the circuit judges

representing the queen or king came to town, the ceremony of adjudication

was impressive, and much effort was taken to weld the prince's judgment to

At the border of the first county on each circuit the judges were
met by trumpeters and the sheriff's bailiff and, several miles
from the assize town, by the sheriff himself, other local officers,
and representatives of the county gentry. The ensuing
cavalcade . . . was one of some magnificience, attended by pike-
and liverymen specially clothed for the occasion. Welcomed
into town with bells, music and occasionally, a Latin oration, the
judges went first to their lodgings. There they received leading
members of the local gentry who probably reported briefly on
the state of the county. Thus forewarned, the judges, now
robed and again attended by the sheriff and his men, passed to
the church where the local minister read prayers and the f
sheriff's chaplain delivered a sermon. . . . Immediately after the
service all proceeded solemnly to the Crown court for the
opening of assizes. 9

Criminal trials were open to the public, which was encouraged to

attend. These spectators were active, interested, and to some extent,

included in the proceedings as a participants. Treason trials, those great

political morality plays of Tudor and Jacobean government, drew

particularly great crowds:

The natural interest aroused by the drama of treason trials, the
ease of access to the courts, the relative simplicity of the judicial
process and, in the case of certain catholic priests, the sympathy
of co-religionists, encouraged many of the public to attend.
Chapuys told his imperial master that there were more than

176

two-thousand persons present at the trial in the Tower of Anne
Boleyn and her brother. A report of the trial before the lord
high steward of the duke of Norfolk in January 1572 states that
there were 'a great number' of people present, and that order
within the hall was maintained by the knight marshal and the
warden of the Fleet prison and their servants with tipstaves.
An eye witness of the trial in 1595 of the catholic priest William
Freeman remarked that the throng was so great that he was too
far away from the prisoner to hear certain of his retorts. . . .
When the catholic priest William Lacey was arraigned at York
on 11 August 1582 the crowd was so numerous 'that the court
was in great disorder and the justices of assize forced to make
room for themselves like ushers'.lo

Though ostensibly, the main purpose of these trials was to deter mine
the guilt or innocence of the defendant, they were mainly important to the
crown as an instrument of social control. Popular trials provided the chief
opportunity for the crown to "teach" the public its own brand of political
morality. Though the defendant as an individual was the focus of attention,
the audience rivalled the defendant in importance. Thus, the audience was
often addressed directly by judges and lawyers, before and during the trial.

and sometimes indirectly by the accused:

As Sir Thomas Smith noted, it was customary in all criminal
cases at gaol deliveries for the justices to announce in court the
cause of their coming and to give 'a good lesson to the people“,
and we may add that in treason trials they and the king's
learned counsel were careful to provide in addition information
about why the law on treason took the form it did as well as the
background and the political implications of the case for the
benefit of the courtroom audience.11

The emotional involvement of the audience was sometimes very high.

However, there is no evidence that treason trials were ever disrupted by the

177

audience. People came because they believed the defendant 'was an enemy
to the king and the realm and hoped to see him found guilty of his heinous
crime and thereby the canker rooted out of the body politic; or contrariwise
because they were sure the prisoner was unfairly accused and hoped to see
him acquitted."12 Acquittals of prisoners whom the crowd favored were
often greeted with great demonstrations of joy and convictions of people the
crowd disfavored, with righteous approval. The spectators, however, did not
always agree on the verdict, and William Allen's comment on the sentencing
of Edmund Campion, who with eleven other Jesuits was executed, displays
the fundamental and deep divisions of Shakespeare's England. The crowd

came to the proceeding, Allen said

to behold whether the old honor of law and iustice wherein our
nation hath of all the world had the praise, could or durst stand
notwithstanding any violent impression of power and
authorities to the contrary: whether there were any Markhams
left in the land that would yield up coiffe, office and life rather
than geve sentence against such as they knew in conscience to
be innocent and in truth not touched by any evidence

whatsoever. 1 3

From Allen's view, the crowd was undoubtedly disappointed -- certainly the
Catholics in the crowd were. Renaissance trial audiences were vitally
concerned with adjudication and often divided in their sympathies.

There is an additional similarity between the theater and trial of
Shakespeare's day: they both have a dialectical structure. Robert Weimann
has argued very persuasively that the structure ofJchs and platen of
medieval English drama was incorporated in Shakespeare's theater through
the ”naturalistic" representation of kings. courtiers, and other noble

characters, and in the "expressive" representation of clowns.” In the

178

English mystery plays, the 1931:; had been the raised scaffold on which
characters such as Herod, Pilate, Ananias and Caiphus, and other characters
of high social status, had been represented. The pLateg on the other hand,
was an "unlocalized" space, on the same level as the audience, in which
Shepards, mechanicals, and clowns appeared, people generally of the same
status as those in the audience, who mingled with the audience and formed a
participatory link between audience and stage. This division found
embodiment in Shakespeare's dramaturgy which linked mimetic represen-
tations of characters and action with the on-stage commentary of clowns,
who emphasized their role as actors rather than characters. The audience
was simultaneously involved in a dialectical theater of representational
drama and a drama which called attention to the process of representation
itself. The dialectical structure of the theater incorporated popular
participation and dissent as the actions and speeches of "platea" actors,
which qualified the pretentious of "locus" characters.

Weimann has argued that the dialectical structure of the popular
theater produced a discourse which was unique in England, in that it allowed
the position of the Elizabethan establishment and the position of popular
dissent to be placed in opposition in the same forum.15 I believe, however,
that the same structure existed, to a large degree, in the juridical discourse
of the English trial.

The homolog in trial to the lpc_us of the stage is the raised bench of the
judge. The homolog to the pl_ate_a of the stage is the audience level jury.
Though during the later part of Elizabeth‘s reign, when England was at war
with Spain, English juries were quite obedient about convicting defendants
charged with treason, they had not been so cooperative in the first half of

the century, as Nicholas Throck morton's trial proves. In cases other than

179

treason, juries also often gave into the pressure of judges to return a
conviction. However, on occasion, juries could be very stubborn about
opposing the crown's judges. There were two theoretical advantages in

having a jury:

First, since the jurors in giving a general verdict were judges of
law as well as fact, they could override strained or unpopular
interpretations of the law or of the evidence by government-
minded judges. Second, they could mitigate the rigours of the
penal system by ‘pious perjury“ -- the merciful use of 'partial
verdicts‘ or false acquittals contrary to the evidence. The
precise extent of these advantages is difficult to quantify, but it
seems that from the sixteenth to the eighteenth centuries the
acquittal-rate (whatever the reasons for acquittal) -- was
between one-quarter and one-half of those indicted.

Though jurors were chosen from a propertied segment of the population
(one had to be a freeholder to the value of 40 s: or, in a city or town, owner
of 40 5. worth of goods, to be on a jury”), these restrictions were not so
onerous as to exclude a genuine popular presence in judicial decision making.
Although one cannot maintain that even the majority of English juries were
independent or courageous,18 the jury always represented a potential for
contradiction that was built into the system.
[J E] D
No doubt many people who had been involved in the judicial system

as lawyers, defendants, jurors, or part of the audience, went to Shake-
speare‘s plays, and when MW opened in the summer of
1604,‘9 the memory of Sir Walter Raleigh's spectacular trial and aftermath,
and the trials and pardons of Markham, Grey, and Cobham, would still have
been fresh. Sir Walter Raleigh, along with Sir Griffin Markham, Lord Grey

180

and Lord Cobham, was arrested for treason in late 1603. Raleigh was
accused in his indictment of using Cobham to get 600,000 crowns from the
Archduke of Austria to be used for fomenting rebellion, killing the king and
"his cubs," putting Arabella Stuart on the throne, and for bringing about
peace with Spain and tolerance of the Catholic religion. Raleigh's indictment
specified his involvement in “the Main Plot," which was connected with the
what was dubbed, the ‘Bye Plot.“ Though Raleigh was not accused of
involvement in the"Bye Plot" it influenced his trial. The chief conspirators in
the "Bye Plot" were two catholic priests, Clerke and Watson; Griffin
Markham; George Brooke, the brother of Lord Cobham; and Anthony Copley.
The overly optimistic plan of those engaged in the Bye-Plot was to seize the
King and force him to adopt a policy of tolerance toward Catholics.

At the time of his arrest, Raleigh was not a popular man. Many
thought he was an atheist and his pride had never endeared him to courtiers
or the common people.20 Raleigh had openly gloated over Essex' downfall
and Robert Lacey notes, "the ordinary people of London were delighted to
see him threatened with the same fate to which they believe he had driven
Essex."21 When Raleigh was tried on November 17, 1603, the theaters had
been closed for several months due to a plague which was killing
approximately 2,000 Londoners per week. Still, great crowds turned out to
jeer him on his way from the Tower of London to Winchester. Sir William
Waad, who was charged with getting Raleigh to Winchester alive, testified,
"It was hab or nab whether Sir Walter Ralegh should have been brought
alive through such multitudes of unruly people as did exclaim against him.
He that had seen it would not think there had been any sickness in
London."22 Raleigh's defense did not gain him an acquittal, but it swung

public opinion in his favor as violenty as it had been against him. Although

181

the jury deliberated for only a quarter of an hour before finding him guilty,
the London public judged differently, and had a good many reasons to do so.

Raleigh began the trial by attempting to dispel his reputation for
atheism. When asked whether he would take any exceptions to the jury,
Raleigh answered, "I know none of them; they are all Christians, and honest
gentlemen, I except against none.“23 This typified his tone to the jury (and
indirectly, to the crowd) all through the trial. Raleigh took the part of a
single man, courageously standing against judges and prosecutors who were
determined to find him guilty from the start. Raleigh‘s genius was that as
the underdog, battling an unprincipled prosecutor, he continually and
directly appealed to the jury‘s sense of fairness. That Sir Edward Coke, one
of the most brutal and unscrupulous prosecutors in English legal history, was
at his most vitriolic only magnified Raleigh's courage in fighting back. Thus,
when Coke began to argue that Raleigh was part of the "Bye Plot," Raleigh
enlisted the jury‘s aid: "You Gentlemen of the Jury, I pray remember, I am
not charged with the Bye, being the Treason of the priest?“ In response to
Coke's essentially unfulfilled but continual promise "I will prove you the
notoriest Traitor that ever came to the bar," Raleigh implicitly connected
himself with Christ:

Your words cannot condemn me; my innocency is my defence.
Prove one of these things wherewith you have charged me, and
I will confess the whole Indictment, and that I am the
horriblest Traitor that ever lived, and worthy to be crucified
with a thousand thousand torments.

Virtually the only evidence against Raleigh was an examination of
Lord Cobham accusing Raleigh of participation in the Main Plot. Cobham

himself had {91.110190 and then reasserted the 800118811011 several times.

182

When the examination was read in court, Raleigh asked to see it (a request
which was routinely denied) and again took the opportunity to enlist the
jury‘s aid:
Let me see the Accusation: This is absolutely all the Evidence
can be brought against me; poor shifts! You Gentle men of the
jury, I pray you understand this. This is that which must either

condemn, or give me life; which must free me, or send my wife
and children to Beg their bread about the streets.2

These instances give a good sense of the role that Raleigh had
undertaken: a single man, fighting bravely against terrible odds, appealing to
the jury to do the right thing, "notwithstanding any violent impression of
power and authority to the contrary." Developments in the trial magnified
the impression Raleigh wanted to create for the jury. He was denied (again,
typically) the right to cross-examine the witnesses against him, which was
particularly unfair in application to Cobham. Coke became so offensive that
he was even upbraided by Robert Cecil, one of the judges: "Mr. Attorney, you
are more peremptory than honest."27 '

Near the end of the trial, Raleigh pulled a rabbit out his hat equal to
that of any fictional lawyer; he produced a letter from Cobham in which
Cobham had yet again retracted his charges against Raleigh. Raleigh gave it
to Cecil to read, because Cecil was familiar with Cobham's handwriting, and
also, it can be surmised, because Raleigh wanted to create an effect: Lord
Cecil testifying on his behalf. In a brilliant reversal, the defendant had one

of the Mass reading from a script!

ha '8 t ' ' tion ale' .
Seeing myself so near my end, for the discharge of my own
conscience, and freeing myself from your blood. which else will

183

cry vengeance against me; I protest upon my salvation I never
practised with Spain by your procurement; God so comfort me
in this my affliction, as you are a true subject, for any thing that
I know. I will say as Daniel, Purus sum 2 smuine hujus. So
God have mercy upon my soul, as I know no Treason by you}?8

The letter should have resulted in an acquittal, Cobham being an
utterly unreliable witness either for or against Raleigh. Instead, the jury
deliberated for fifteen minutes and returned a verdict of guilty. Raleigh
maintained his composure through the reading of the standard sentence for

traitors and felons:

Since you have been found guilty of these horrible Treasons, the
judgment of this court is, That you shall be had from hence to
the place whence you came, there to remain until the day of
execution; and from thence you shall be drawn upon a hurdle
through the open streets to the place of execution, there to be
hanged and cut down alive, and your body shall be opened,
your heart and bowels plucked out, and your privy members
cut off, and thrown into the fire before your eyes; then your
head to be stricken off from your body, and your body shall be
divided into four quarters, to be disposed of at the king's
pleasure: and God have mercy upon your soul.29

Although convicted, Raleigh became, in one day, "a symbol of the
innocent man abused by harsh, unjust laws and wicked, time-serving
men."30 Greenblatt quotes one of the spectators at the trial, Dudley Carleton,

on the magnificence of Raleigh's performance:

Sir Walter Raleigh served for a whole act, and played all the
parts himself. . . . He answered with that temper, wit, learning,
courage, and judgment, that, save it went with the hazard of his
life, it was the happiest day that ever he spent. And so well he
shifted all advantages that were taken against him, that were
not fama malum garvius guam res, and an ill name half hanged,

184

in the opinion of all men, he had been acquitted.31

E] El D

At this point in the proceedings against Raleigh and his alleged
accomplices Cobham, Grey and Markham, who were convicted of treason in
separate trials, James I, the new king, steps into the picture as actor, director
and playwright. Though the trial of Raleigh had already furnished the
play-going citizens of London with plenty of food for thought concerning
judicial integrity, the fictiveness of due process, the unreliability of
informers, and the state‘s tyrannical use of treason trials, King James was
about to feed them dessert.

The reversal of public opinion in Raleigh‘s favor apparently took
James by surprise. Rather than eliminating an ambitious, dissatisfied and
potentially dangerous courtier from the old regime, he had created a public
hero. Most of the Privy Council interceded on Raleigh's behalf. Raleigh's
wife begged for the life of her husband. The Queen interceded for Raleigh.
And Raleigh, in a manner which many historians have found pathetic,
pleaded for mercy.32 In response, the King ordered the Bishop of Winchester
to attend Raleigh and "to prepare him for death."33

Watson and Clerke, the priests involved in the "Bye-Plot" were
executed in early December at Winchester, and the ever present Dudley
Carleton noted that both Watson and Clerke were cut down while alive. and
the sentence for treason literally carried out. George Brooke went to
execution on December 6.

Cobham. Markham and Grey were to be executed on December 10, and
Raleigh on December 13, 1603. In a letter dated December 8 to Henry IV,

the French Ambassador De Beaumont describes James' apparent irresolution

185

about whether to extend pardons to the remaining conspirators. This,
apparently, was a bit of playacting by James, for by December 7 he had

. formulated what Edward Edwards describes as “a comedy, of which the
principal scenes were to be enacted upon the scaffold at Winchester, whilst a
by-scene or two were intended to enliven the Court itself at Wilton?“

Edwards argues that, while James deliberately gave the impression of
being perplexed as to whether he should extend mercy, he had already
decided to pardon Markham, Cobham and Grey, and that de Beaumont's
letter "fixes on the King a deliberate contrivance of all the petty artifices that
turned a scaffold -- around which men had gathered to see traitors die --
into a stage for the exhibition of tricks and transformations, some of which
would have better befitted the booth of Harlequin and Pantaloon."35
Although Edwards‘ reaction has a certain amount of Victorian righteousness
about it, his description of James“ manuevering in theatrical terms hits the
mark.

James appeared to be balancing the interests of justice and mercy,
that dichotomy which critics have long found to be the philosophic core of
Measure for Measure. James had taken pains to assign each of the
condemned men a priest to help prepare him for death, and these priests
regularly reported to James on their progress. Indeed, James‘ interest in the
prisoners‘ preparations for death parallels Vincentio's interest in the
spiritual welfare of Claudio and Barnardine, and his attempt to bring Claudio
to a full act of contrition. By December 8, however, James was merely
feigning confusion. He had already made the decision to pardon Markham,
Cobham and Grey and he intended to do it with theatrical emphasis.
Edwards describes the script of James“ play -- a plot which will be

disquietingly familiar to students of Measure for Measure:

186

“The King [continued De Beaumont in the December 8 letter) has
been occupied for some days past, in hearing and considering
the indictments and trials; having ordered, for the satisfaction
of his conscience, that the whole should be reported to him,
point by point, to the end that he might fully inform himself of

the matter. The motives to mergy, and the reasons which urge

a strict execution of law, have kept him long in grplexity."
Despite all these considerations, James“ hesitation, he [De

Beau mont] says, came to an end on the preceding day. “The King
has now resolved that they shall all die; and has signed the
needful warrants." . . . [De Beaumont's) letter represents his
belief. It also represents the public expectation. . . .

The divines who had it in W
for death were expressly instructeg to tell them that remission
or commutation of punishment must not be thought of. Another
divine -- one of the King's Scottish chaplains -- preached a
sermon before the Court at Wilton, on the day after the
execution of George Brooke, in which he treated clemency to
traitors as a deadly sin. The King himself took more than one
opportunity of telling those of the councillors who had joined in
the petitions for mercy that it would better become them to
press for the due course of law. But on the 7th of December --
the day on which James had listened to his chaplain‘s
exhortation to continued rigour -- he drew with his own hand a
warrant, addressed to the Sheriff of Hampshire, for stay of the
executions. Having drawn that warrant, he kept the fact within
his own breast, and the document within his own custody. He
signed death-warrants, in the usual form, for Markham, Grey
and Cobham, and sent them to the Sheriff on the 8th at night.
Friday, the 10th, was the day appointed for the execution. . . .

The fact that the King had any purpose of sparing life was
kept, for three days, as secret as were the terms of his privately
drawn warrant. The only person taken into his confidence,
prior to the day of execution, was John Gibb, a page, who had
just arrived at Wilton from Scotland. The Lords of the Council
present at court, we are told upon good authority, knew not but
that execution of the sentences was to proceed, unto the very
hour appointed for their fulfilment at Winchester.36
(underlining added)

187

On the scaffold, the King's instructions resulted in a human shell
game worthy of Shakespeare‘s Duke Vincentio. Markham was to be the first
to die, then Grey followed by Cobham. There was a large crowd, and Raleigh,
whose window commanded a view of the scaffold, could see everything. The
drama began with a scene that is striking in its similarity to Act III, scene i.

of Measure for Measure in which the Duke as Friar Lodowick attempts to

 

prepare Claudio for death by getting him to give up hope for life. As
Claudio's preparation had been interrupted by hope that Isabella could buy

his freedom, so Markham‘s hopes had been raised by friends at court:

In spite of all that had been said to him by the minister who
had visited his prison day after day, he had kept up some hopes
of life, until the 9th. He had, it seems, received a cheering
message from old acquaintances at court, to which, for a time,
he had given more heed than to his spiritual counsellor. But on
the preceding day, all expectation of prolonged life had forsaken
him. When he reached the scaffold, he complained that he had
been deluded with hopes, and brought to his fate unprepared. . .
He took sorrowful leave of his friends and lockers-on; knelt
down in prayer; and had just made himself ready for the
execution, when a commotion was observed in the crowd. . .37

The commotion was the King‘s messenger, fighting his way through
the crush, barely in time to stop the proceedings. "It had been part of the
King‘s plan that his messenger should make his arrival known, only after the
first of the prisoners stood upon the scaffold. But it was by an accident, at
starting, that the arrival was so much delayed that Markham‘s neck was
almost on the block before the new warrant had reached the hands of the
sheriff."38 The sheriff talked to the messenger and turned himself toward
Markham:

188

‘You say you are ill prepared to die; you shall have two hours
“respite." He then led Markham from the scaffold into the great
hall (locally famous as 'Arthur‘s Hall'), and caused him to be
locked in there.39

Once Claudio finds that Isabella will not save him by giving herself to
Angelo, and his hopes for life, like Markham's, are shattered, it becomes
possible for him to make an adequate act of contrition. and like Markham,
Claudio gets a respite to prepare himself.

After Markham was removed from the scaffold and marched to
Arthur's Hall, Grey was brought from his chamber to the scaffold, knowing
nothing of what had passed. He addressed the crowd, made a long prayer,
prepared to die, and was interrupted by the sheriff. The King, he was told,
had decided to change the order of execution. Cobham was to die before
Grey. A bewildered Grey was also led from the scaffold to Arthur's Hall.
Dudley Carleton com mented, "His going away seemed more strange unto him
than his coming thither; for he had no more hope given him than an hour‘s
respite. Neither could any man yet dive into the mysteries of this strange
proceeding.“m Then Cobham was brought from his chamber; he reached the
scaffold, likewise said a prayer and took leave of the crowd ,-- and likewise
was balked by the sheriff, who informed him that something yet was to be
done. Markham and Grey, who were, as far as Cobham knew, dead, were
brought from Arthur‘s Hall onto the scaffold and were read a speech,

apparently drafted by James, consisting entirely of questions:

"Are not your offences heinous? Have you not been justly tried,
and lawfully condemned? Is not each of you subject to due
execution, now to be performed?“ Each of them, it is said.
confessed that it was so. '"fhen," continued Tichborne. [the

189

sheriff] “‘see the mercy of your Prince, who of himself hath sent
hither a countermand, and hath given you your lives!" The
plaudits of the spectators were loud and prolonged.“- [based
on a letter by Dudley Carleton]

Thus, the theatricality of Raleigh‘s sensational treason trial was rivaled
by James' production on the scaffold at Winchester. After the commutation
of their executions, Markham, Grey and Cobham were shortly pardoned.

This proved to be extremely popular, and Raleigh's execution was delayed
indefinitely. In about six months, at the Globe playhouse, London audiences
would have the opportunity to think about the meaning of these events once
more, as The King‘s Men presented Measure for Measure.

D C) D

In Measure for Measure Shakespeare and his company used theater

 

to set before their audience the theatricality of trial, its dangers and benefits,
its role in promoting or impeding the interests of justice and mercy. Since
James had recently used the scaffold at Winchester for a stage, the subject
was ripe for exploration, and it seems likely that Shakespeare adapted

42

Promos and Cassandra adding the figure of the playmaker Duke,

 

specifically to address the modus omrandi of James during the preceeding
December. By adding the figure of the hidden play-maker, Shakespeare
allows his audience to explore the place of ceremony, ritual, theatricality --
and manipulation -- in sustaining the body politic. By splitting the character
of Cassandra into two characters, Isabella and Mariana, and then using the
bed-trick, Shakespeare enables Isabella to make a disinterested gesture of
pure forgiveness -- an act which had been impossible for Cassandra because
of her position as Promo's (Angela's) wife. Through the figures of Angelo,
Isabella, Escalus and Vincentio, Shakespeare also makes it possible for his

190

audience to examine a wide range of responses to requests for mercy and
forgiveness. Finally, the addition of Escalus provides the audience with an
opportunity to observe a wide range of judicial behavior and technique: that
of Escalus, Angelo and Vincentio.

The difficulty of striking the correct balance between Justice and

Mercy was a commonplace in Shakespeare‘s day and was discussed at length

 

by James I in the Basilikon Doron a work which was introduced to England
in the spring of 1603 in a printing so massive that at its height it occupied
half the printing presses in London for a period of three weeks.“3 James
had originally written the Basilikon Doron for his son Prince Henry in 1599
as an advice book on the theory and practice of kingship, but in 1603, the
book became a major instrument of propaganda by which James VI of
Scotland introduced himself to London as James I of England. In early 1603,
copies of the Basilikon Doron were avidly purchased and read by curious,
apprehensive Londoners. James pronouncements on Justice and Mercy
provide indispensable context for interpreting his actions toward Raleigh,
Cobham, Markham and Grey, and for understanding why 1604 was a
particularly ripe year in which to present a play that dealt with the balance
of Justice and Mercy. The Basilikon Doron is pregnant with the thematic

issues of Measure for Measure:

Feare no vproares for doing of iustice, since ye may assure your
selfe, the most part of your people will euer naturally fauour
Iustice: prouiding alwaies, that ye doe it only for loue to Iustice,
grnd not for satisfying any particular passions of yours vnder
colour thereof: otherwise, how iustly that euer the offender
deserue it, ye are guiltie of murther before God: For ye must
consider, that God euer looketh to your inward intention in all
your actions.44 [underlining added)

 

191

This, of course, could be used as a critical gloss on the moral failure of
Angelo, who under the color of law, intends to execute Claudio for the same
crime that Anglo himself tries to commit with Isabella. James continues,
describing what comes very close to the foundation of plot and theme in

Measure for Measure:

And when yee haue by the seueritie of Iustice once setled your
countries, and made them know that ye can strike, then may ye
thereafter all the daies of your life mixe Iustice with Mercie,
punishing or sparing, as ye shall finde the crime to haue bene
wilfuuy or rashly committed, and according to the by-past
behauiour of the com mitter. For if otherwise ye kyth your

cle mencie at the first, the offences would scone come to such
heapes, and the contempt of you grow so great, that when ye
would fall to punish, the number of them to be punished, would
exceed the innocent: and yee would be troubled to resolue
whom-at to begin: and against your nature would be compelled
to wracke many, whom the chastisement of few in the

beginning might have preserued. 4

Did anyone ever state Duke Vincentio's problem more clearly or the results
to the innocent (as represented by Claudio) when he tries to recover lost
ground by putting the precise Angelo in charge of Vienna?

Having a statement of James‘ theoretical views on the administration
of justice, England waited to see what James would do in practice. The fate
of the Main and Bye plotters proved to be James' test case. It was in the
general terms of balancing Justice and Mercy that Dudley Carleton described
King James deliberations over the pending executions of Cobham, Markham,
Grey and Raleigh. Given that James' final decision went contrary to the
sermon of his own chaplain, one might surmise that there had been plenty of

debate, in the succeeding several months, as to whether James had struck

192

the correct balance. In producing Measure for Measure the King's Men

 

provided a dramatic context for the continuation of that debate. Joel Altman

argues in The Tudor Play of Mind that many plays of the English Renaissance

were structured as exploratory arguments:

The plays functioned as media of intellectual and emotional
exploration for minds that were accustomed to examine the
many sides of a given theme, to entertain opposing ideals, and
by so exercising the understanding, to move toward some fuller
apprehension of truth that could be discerned only through the
total action of the drama.46

Although in Wisp, Altman does not examine
Measure for Msssprs, several other critics, M. C. Bradbrook47 perhaps being
the first, have noted the way in which the play puts ideals such as Justice
and Mercy, Law and Religion, Old and New Law,48 Equity and Law,49
Chastity and Charity,50 in dialectical opposition. Indeed, the trouble in
Vienna seems to have come about due to the inability of several characters,
mainly the Duke, to steer a middle course between extremes. Vincentio,
either through negligence or a nature which inclines too strongly toward
mercy, has negleced to enforce the laws of Vienna, and the result, as the
Duke explains in the first act, is impending anarchy. At the time there was
also room to argue that James' constitutional aversion to shedding blood
(which, during the course of his reign, would motivate his free use of the
pardon power) and his pardon of three men who were convicted of plotting
to kill him, would damage the deterrent effect of criminal law. In Basilikon
Dpppn, James himself acknowledged his tendency toward mercy as a
potential source of disorder:

193

In this, my ouerdeare bought experience may serue you [Prince
Henry] for a sufficient lesson: For I confesse, where I thought
(by being gracious at the beginning) to win all mens hearts to a
louing and willing obedience, I by the contrary found, the
disorder of the countrie, and the losse of my thankes to be all
my reward. 51

The situation of Vienna, as described by Vincentio, could potentially become
that of England. Or worse, from the vieWpoint of Englishmen just getting to
know their King. James might, in an effort to reverse his own tendency

toward mercy, use the whip on England when it was not required. The

question posed by Wu; then, was one of central public
concern in the early days of James reign. Vincentio's statement as to the

situation in Vienna sounds very close James anxieties of what might result if
he exercised too much mercy in a nation where the severity of his justice

had not yet been settled:

We have strict statutes and most biting laws,
The needful bits and curbs for headstrong jades,
Which for this fourteen years we have let slip;
Even like an o'ergrown lion in a cave,

That goes not out to prey. Now, as fond fathers,
Having bound up the threatening twigs of birch,
Only to stick it in their children's sight

For terror, not to use, in time the rod

Becomes more mocked than feared; 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. (1. ill. 19-31)

The Duke, as overly fond patriarch, to the detriment of his “children," the
people of Vienna, has allowed the body politic to slip into disorder. The
result is a confusion of poles. The father having abdicated, the baby now

194

lords it over the nurse; and the birchtwigs, which retain their effectiveness
as a prop only if used occasionally, have ceased to prop up the social order.
Mercy itself has lost its character and become mere license. To correct the
problem, the Duke goes in the opposite extreme and installs the notoriously
strait-laced Angelo as governor, placing Angelo in a role the Duke does not
want to play. The Duke is quite aware that he is using Angelo to do the

necessary dirty work, so he himself can keep clean:

Sith ‘twas my fault to give the people scope,
"I‘would be my tyranny to strike and gall them
For what I bid them do: for we bid this be done
When evil deeds have their permissive pass

And not the punishment. Therefore . . .

I have on Angelo imposed the office,

Who may, in th'ambush of my name, strike home,
And yet my nature never in the sight

To do it slander. (1. ii. 35-9)

The Duke‘s use of Angelo corresponds suggestively with James' use of the
judges who insulated him from direct participation in criminal judgment.
Harshness could be blamed on the judges -- James could take the credit for
extending royal mercy.

The Duke‘s tendency toward the extreme is again revealed in his
failure to govern visibly. Like Prospero, who “being transported/And rapt in
secret studies. . . neglecting worldly ends, all dedicated/To closeness and the
bettering of my mind. . (1. ii. 89-90) allows a political disaster to happen,
Vincentio has "ever loved the life removed.“ (1. lil. 8) The fictional Duke and
King James share an introverted love of study, particularly in the fields of
religion and theology. They both dislike crowds. Critics have long

commented on how these tendencies connect Vincentio to James. Some base

195

the comparison on James‘ alleged “dislike of popular acclaim, manifested
during his progress through England in the spring of 1603." 52 Lever
contends that the connection is derived from James' reclusive conduct during
his first royal progress through London on March 15, I604 -- a progress in
which Shakespeare and his company, newly given the title, The King‘s Men,
participated. 53 Though it would be reductive to equate Vincentio with
James I, Vincentio‘s style of leadership so closely approximates that of
James, that Vincentio becomes a figure through which the actions and
policies of James can be imaginatively explored. It is significant then, that
Vincentio‘s leadership is immediately criticized by Vincentio himself. He
knows that his lack of contact with the people has damaged his ability to

govern:

. . . I love the people,
But do not like to stage me to their eyes;
Though it do well, I do not relish well
Their loud applause and aves vehement
Nor do I think the man of safe discretion
That does affect it. (underlining added; I. i. 67-72)

The play, therefore, sets up the problem of a Duke who understands
the value of ceremony and theatricality in government -- as does James in
Basilikon Doron -- but still cannot make himself engage in theatricality. He
does not mind be_ing prince, but he does not want to play the £913 of prince.
The people of Vienna apparently have become unsure of who the Duke is or
what he stands for, just as the people of London may have been unsure of
who their new Scottish king was, and what he stood for. Thus Lucio
articulates public opinion, speaking "but according to the trick,“ in referring
to Vincentio as “the old fantastical Duke of dark corners,“ implying not only

196

that the Duke is promiscuous (and already James' attraction to boys had
been noticed by the court 54), but emphasizing the Duke's avoidance of
public appearance.

Vincentio has two tasks in the play. First, he must find out whom he
can trust and then he must reestablish his own slipped authority. He needs
to rediscover his dukedom, the image he conveys to his subjects, and the
moral quality of his lieutenants in much the same way that James, in the
first year of his reign, had to discover his new kingdom and assess the
loyalty of those courtiers left from Elizabeth‘s reign -- people such as Sir
Walter Raleigh and Robert Cecil. Vincentio begins this process by putting
Angelo and Escalus in positions of power to test them. As he tells Friar
Thomas, “'Hence shall we see,/ If power change purpose, what our seemers
be." (1 lil. 53-4) As Vincentio conducts his investigation, Shakespeare
investigates the role of judge, offering to his audience Angelo, Escalus, and
finally, the Duke himself.

C) E) E)

While in the first act, Shakespeare sets forth the consequences of
emphazing Mercy over Justice and Being over Seeming, in the second act, he
explores the equally distressing consequences of emphasizing the second
member of these pairs over the first. In an attempt to correct the situation
he has created, Vincentio appoints Angelo to "Duke it" in his place, knowing
Angelo to be as radically strict as the Duke himself was lenient. This
reversal is not only meant as a corrective to Viennese license, but also, the

Duke tells Friar Thomas, is a test of Angelo‘s true nature:

Lord Angelo is precise,
Stands at guard with envy, scarce confesses
That his blood flows, or that his appetite

 

197
Is more bread than stone. Hence shall we see,
If power change purpose, what our seemers be. (1. iii. 50-4)

In fact, the very “test of my metal," (I. i. 48) which Angelo ironically
requests the Duke to make before deputizing him is about to take place.
Angelo not only proves to be something utterly different than even Q
thinks himself to be, but his rigor in enforcing the law and the severity of his
punishments lead just as surely to unjust and intolerable government as the
Duke‘s excessive leniency. Angelo fails to conform to Jacobean ideals of
judicial conduct in four ways: (1) by reviving long dead laws against
fornication and imposing them essentially by surprise, (2) by failing to
measure out punishments appropriate, in degree, to the crime committed, (3)
by his corrupt dealings with Isabella, and (4) by his temperamental inability
to conduct a trial attentively and patiently.

Francis Bacon's essay, "Of Judicature," 55 which first appeared in the
1612 edition of his essays, provides a touchstone by which we can judge
Angelo. What Bacon says about the enforcement of criminal laws is

particularly applicable to the first two ways in which Angelo fails as judge:

Specially in case of Lawes Penall, they [judges] ought to have
Care, that that which was meant for Terrour, be not turned into
Rigour; and that they bring not upon the People, that Shower,
whereof the Scripture speaketh: Pluet super eos Lagueos: For
Penall Lawes Pressed, are a Shower of Snares upon the People.
Therefore, let Penall Lawes if they have been Sleepers of long,
or if they be growne unfit for the present Time, be by Wise
ludges confined in the Execution; judicis officium est, ut Res, ita
Tempora Rerum, are. In Causes of _I_.if_e and Death- judges ought
(as farre as the Law permitteth) in Justice to remember Mercy;
And to Cast a Severe Eye upon the Example, but a Mercifull Eye
upon the Person.56 [italics in original)

 

 

 

Angelo has snared Claudio by imposition of along dead law against

198

fornication. The revival of a law which has been so long out of use, without
any warning to a population that has simply forgotten the law and in which
significant numbers of the population engage in the proscribed conduct,
indeed is like dropping a "Shower of Snares upon the People." In effect,
there is little difference between enforcing a law which has been ignored for
"nineteen zodiacs" and imposing an ex post f acto law, i.e., a law which
retroactively makes certain conduct illegal. Both actions allow the arbitary
prosecution of defendants who at the time did not have notice they were
engaging in a proscribed activity. That Claudio, in fact, is surprised is
obvious from his conversation with Lucio in the first act. Being engaged to
marry Julietta, Claudio does not seem to quite believe that the sex he has
had with her even constitutes a crime. When Lucio asks him if he is guilty of
lechery, Claudio's response is "Call it so," and Lucio‘s surprise at the penalty
being exacted from Claudio is also evident: "Is lechery so looked after?"
Claudio is to be used as an example, rather than to be judged as a human
being, and he is correct when he complains of the injustice of reviving the

old law:

. . . this new governor
Awakes in all the enrolled penalties
Which have, like unscoured armor, hung by th'wall
So long, that nineteen zodiacs have gone round, 1
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. (1. ii. 160-6)

Fornication was in fact a crime in Tudor and Jacobean England, and
penalties against it were encorced. However, sex which partners engaged in
prior to their marrige, but after a binding marriage contract, was regarded as a
minor infraction -- a "peccadilo." 57

Angelo‘s sentencing of Claudio to death for the crime of fornication would

[99

have been regarded, even by the more "precise" play-goers of the day, as an
extremely severe punishemtn for that offense.58 Whetstone‘s apprisal of the
severity of his own fictional law provides some evidence of audience reaction to

Angelo's rigor:

There was a law, that what man so ever committed Adultery,
should lose his head 8: the woman offender, should weare some
disguised apparrel, during her life, to make her inf amously
noted. This severe law, by the favour of some mercifull
magistrate, because little regarded, untill the time of Lord
Promos auctority.59

Claudio, in effect, becomes another gallows actor, with Angelo pulling
the strings so that the populace is furnished with a negative example.
Claudio is led through the town by the provost to advertise his crime, and
typically, Claudio is forced to advertise his impending execution as a
deterent to other offenders. Angelo's punishment of Claudio is far in excess
of what the strictest English parish would have required and this is an
important fact in establishing that Shakespeare's audience would have
regarded Angelo's severity as surpassing the requirements of justice and
establishing a form of tyranny. That a good share of Shakespeare‘s audience
was probably guilty of the same infraction merely emphasizes the point. In
I act, it appears that one of Shakespeare‘s friends, Thomas Russell married a
widow clandestinely so that she could inherit a large estate from her
previous husband.6o Cases involving clandestine marriage contracts
constituted a large part of business for the ecclesiastical courts of the late

sixteenth century,61

and no doubt these cases represent only a fraction of
the people who considered themselves to be married, despite the lack of a

public ceremony or publication of marriage bans. Indeed, in Leicester, the

200

M in 1598 appears to have been that the marriage was consummated
on the same day the contract was made, before any public ceremony or
proclamation of bans.62 Thus, Pompey's comment on how Angelo‘s
enforcement of the law will affect the population of Vienna would also be

applicable to England:

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 threepence
A bay; if you live to see this come to pass, say Pompey
Told you so. (11. 1. 225-9)

Angelo‘s plan for solving "the problem" of Vienna may have also
corresponded to some of the more extremely Puritanical opinions of
Shakespeare's day, for when the Puritans finally came to power, the
penalties for sexual misconduct became much stiffer. Thus Angelo may be
the very embodiment of the rigorous morality coming to power in the
beginning of the sixteenth century -- rigorousness which, in the form of
Angelo, is submitted to the audience for moral evaluation.

Angelo's revival of this particular law is absurd, and (his approach to
sentencing arises from a choleric temper that makes him blind to degrees of
crime, and therefore to degrees of punishment. Certainly, Angelo fails to
heed Bacon's injunction to "cast a Merciful Eye upon the Person“ of the
defendant by taking mitigating circumstances into account, and he also fails
to follow James‘ advice to Prince Henry: "Vse Iustice, but with such
moderation, as it turne not in Tyrannie: otherwaies summum 19s, is summa

iniuria." 63 That Claudio in effect is married, that his wife is bearing a child,

 

and that he fully intended to marry Julietta all along, are given no

201

consideration by Angelo.

Forced to play the role of criminal, Claudio, with the help of Lucio,
persuades his sister to take the role of advocate. Claudio is the first on a .
long list of characters, who for one reason or another, want Isabella to speak:
a sister of the Order of St. Clare, Lucio, Angelo, Vincentio as Friar Lodowick,
and Vincentio as the Duke -- all pressure Isabella to speak the lines they

want her to:

Implore her, in my voice, that she make friends

To the strict deputy; bid herself assay him.

I have great hope in that; for in her youth

There is a prone and speechless dialect,

Such as move men; beside, she hath prosperous art
When she will play with reason and discourse,

And well she can persuade. (1. ii. 175-181)

Isabella, in other words, is the right girl for the part. But even she
needs a drama coach when she begins what in effect is a sentencing hearing
before Angelo. She forgets that she is entering a theater and that she has a
role to play. As Lucio tells her twice: "You are too cold,“ (11. ii. 45, 57). Even
Raleigh, in his anger at Coke‘s M, had to be reminded by a judge that he
was in an essentially theatrical situation in which he and Coke both had to
play their parts: "Sir Walter Raleigh, Mr. Attorney speaketh out of the zeal of
his duty, for the service of the king, and you for your life; be valiant on both

sides."64 Lucio gives Isabella similar advice in her address of Angelo:

Give't not o'er so: to him again, entreat him,
Kneel down before him, hang upon his gown;

. . . If you should need a pin,
You could not with more tame a tongue desire it;
To him, I say. (11. ii. 43-7)

202

Lucio continues to urge Isabella on, with the Provost, as audience, in the grip
of her performance. “‘Pray heaven she win him,“ the Provost says (125) and
she nearly does, for Angelo says with double meaning, '“She speaks, and
'tis/Such sense that my sense breeds with it." (141-2)

Isabella is ineffective, perhaps partly because she offers Angelo so
few alternatives for sentencing Claudio. Isabella argues as Mercy, and
Angelo replies as Justice, but neither realizes that Justice and Mercy are
complementary rather than opposing concepts. Angelo remains rigidly
gripped by the idea that Claudio‘s crime must be punished with death, but
the only alternative Isabella has to offer Angelo is that Claudio be pardoned.
Neither recognizes there might be a middle ground of punishment in which
the criminal is neither executed nor let off scot free. Isabella takes the
extreme position that since Christ has stoned for the sins of man, that the
law of the state should be equally forgiving, which would, of course, result in
the abolition of criminal punishment. Angelo, on the other hand, has even
surpassed the lex talonis in his severity. “‘An eye for an eye and a tooth for
a tooth“ at least had the genuinely beneficial effect of Mg punishment.
Angelo's program exceeds the severity of even Old Testament justice. His
argument that he “shows most pity“ when he “‘shows most justice“ is
justifiable as an abstract proposition that punishment deters crime, and
therefore severity shows mercy to future victims. However, in application to
Claudio it makes no sense for two reasons. First, Claudio‘s crime is victimless
-- Julietta was a willing participant and the couple intend to marry anyway;
it is only enforcement of the law that will create victims of Julietta and her
unborn child by depriving them of husband and father. Second, in the
matter of fornication, the object of deterence cannot be accomplished no

matter how severe the penalty; as Pompey has already noted: “Does your

203

worship mean to geld and splay all the youth of the city? . . . Truly, sir, in my
poor opinion, they will to't, then." (11. i. 218-20) If deterence is not a goal
which can be promoted by Claudio's punishment, then even Angelo‘s
argument that meeting out "justice" results in mercy can not stand in this
particular case. The law against fornication becomes an instrument of
oppression which the state can use selectively, for its own purposes, against
virtually anyone, since at any time, a large portion of the populace is likely
to be guilty. In this respect, the law becomes an administrative tool, very
similar to Tudor/Jacobean treason legislation.

As other commentators have noted, Isabella is as much the rigid
legalist as Angelo; we first see Isabella as a novitiate in the notoriously strict
Order of St. Clare, seeking to make the order even stricter. Although she has
faith in God‘s mercy when it comes to the sin of Claudio, she has no faith in

his mercy when it comes to herself:

Better it were a brother died at once
Than that a sister by redeeming him,
Should die forever. (11. iv. 106-8)

Despite what she says in trying to save Claudio, for Isabella it is by obeying
the rules that one achieves salvation, and one slip mars all. When Claudio
entreats her to save him and go to bed with Angelo, her unmoderated
condemnation for her brother contradicts everything that she has said to
Angelo about being aware of one's own faults and withholding judgment.
Thus for Angelo and Isabella, Justice and Mercy represent such extremes
that both concepts become meaningless.

Scene four ends with Angela‘s definitive mistake; he not only shows

himself to be an incompetent judge, but'a corrupt one. His proposition to

204

Isabella in effect, is the solicitation of a bribe, and would itself be sufficient
to confirm Angelo as a figure of the bad judge.65 That Angelo is seeking to
commit the same crime as Claudio, however, makes his sentence 01‘ Claudio
all the more hypocritical and abhorrent. Nothing good can come out of
Angelo at this point, and he is forced to the quick execution of Claudio to
save himself from any imputation that he has shown preference. Not only
does Angelo lack the "Integritie," which according to Bacon, is “Above all
Things, . . . the Portion and Proper Vertue of a Judge," but he undermines the
trustworthiness of the whole judical system and this has the potential for
creating more disorder than the Duke's leniency. As Bamn notes, “One Foule
Sentence, doth more Hurt, then many Foule Examples. For these doe but
Corrupt the Stream; The other Corrupteth the Fountaine.“66

E) D C]

In the second act of Measure for Measure Shakespeare juxtaposes

 

Escalus as good judge with Angelo as bad. Escalus displays the qualities of
patience, attention, efficiency, moderation and self -knowledge which Angelo
lacks. Escalus' very name implies his function in the play, suggesting "scale,"
both in the sense of scales of justice, and “‘a just balance, "67 which implies
the proper relationship between justice and mercy. Escalus, unlike Angelo,
realizes that not all crimes are equally pernicious, and that punishment
should be scaled to the severity of the crime. Escalus‘s ability and Angelo‘s
inability to see gradations are contrasted in the firstlines of scene one, as

Escalus argues that Claudio‘s punishment be reduced:

Angelo: 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.

Escalus: Ay, but yet

 

 

205

Let us be keen, and rather cut a little,
Than fall, and bruise to death. (11. 1. 1-6)

Angelo is unable to see that deterrence may be accomplished by a
lesser response than the imposition of utter terror. One of the psychological
reasons for Angelo‘s inability to measure the appropriate punishment

apparently stems from his own lack of self-knowledge, for he tells Escalus:

When I, that censure him, do so offend
Let mine own judgment pattern out my death,
And nothing come in partial. . . . (11.1. 29-31)

Escalus' response demonstrates his acceptance of universal human sinfulness
and his unease at meeting out severe penalties for minor offenses. Although
the word “him“ in the first line is probably in reference to Claudio, it could as

well be said with reference to Angelo:

Well heaven forgive him, and forgive us all

Some rise by sin and some by virtue f all:

Some run from breaks of ice, and answer none;

And some condemned for a fault alone. (11. i. 37-40)

In the trial of Pompey and Froth, which occupies the central portion of
this scene, Escalus continues to demonstrate his superiority to Angelo as a
judge. Here, Shakespeare presents a mimetic recreation of a rather mundane
trial. Escalus and Angelo are forced to confront obstacles to judgment which
can be observed in any present day small claims court: witnesses who
cannot or will not communicate, witnesses who are biased or unreliable, the
need to restrict the fact gathering process by disallowing evidence based on
hearsay and rumor, and the simple boredom which can lead to lack ol‘

attention and bad judgment. The way in which Escalus and Angelo deal with

206

these obstacles confirm their positions in the dichotomy of good and bad
judges.
In “‘Of Judicature," Bacon emphasizes the ethical neccessity for a judge

to be a patient and perceptive listener:

Patience and Gravitie of Hearing, is an Essential! Part of Justice;

And an Over-speaking |udge is no well tuned gmball. It is no
Grace to a |udge, first to f inde that, which hee might have

heard, in due time, from the Barre; or to shew Quicknesse of
Conceit in cutting off Evidence or Counsell too short; Or to
prevent Information, by Questions though Pertinent. The Parts
of a |udge in Hearing are Foure: To direct the Evidence; To
Moderate Length, Repetition, or Impertinency of Speech; To
Recapitulate, Select, and Collate, the Materiall Points of that,
which hath beene said; And to give the Rule or Sentence.
Whatever is above these, is too much; And proceedeth, Either of
Glory and willingnesse to Speake; Or of Impatience to Heare; Or
of Shortnesse of Memorie; Or of Want of a Staid and Equall

Attention.68

Angelo f ails in most of the points set forth by Bacon. Angelo's
response to the verbal meandering of the constable, Elbow, is to lose patience
before the case has even begun: "How now sir! What‘s your name? And
what‘s the matter?" (11. 1. 44-5) Angelo is unable to see the humor in
Elbow's malapropisms, or even, initially, to understand that they as:
malapropisms. When Elbow accuses his defendants of being notorious
"benef actors," Angelo goes from confusion to pettish irascibility:
"Benefactors? Well, what benefactors are they?/Are they not malefactors?"
(11. 1. 48-9) This little exchange accomplishes two things. It demonstrates
that Angelo has little understanding of the people whom he is to govern, or
their language, and it demonstrates the lack of humor which alienates

Angelo from the community of Vienna and from the audience. Everything is

207

deadly earnest to Angelo -- he can sggm but he cannot play. Finally, the
scene demonstrates that, lacking patience and understanding, Angelo is able
to accomplish little as judge: because he has placed himself so far above
people like Elbow, he is unable to communicate with them, and therefore
finds it. impossible to "Direct the Evidence; To Moderate Length, Repetition, or
1m pertinency of Speech."

In contrast, Escalus‘ dry comment “This comes off well, here's a wise
off icer," indicates that he can distance himself from the courtroom activity
and achieve the more detached, even "playful" perspective of a theater goer.
The line could be delivered to indicate Escalus' appreciation of the humor in
Elbow's case. Escalus' later line in reference to Elbow, "Do you hear how he
misplaces," can be used to the same effect, and as a gentle language lesson to
Angelo.

The trial continues with essentially no progress. Angelo is unable to
determine even the nature of the charges. Finally, Angelo loses patience and
simply abdicates as judge, demonstrating his "Impatience to Heare," and

"Want of a Staid and Equal! Attention." He leaves Escalus to do the job:

This will last out a night in Russia,

When nights are longest there. I'll take my leave,

And leave you to the hearing of the cause,

Hoping you'll find good cause to whip them all. (11. i. 127-30)

This lack of self-restraint is, of course, typical of Angelo, and parallels his
unrestrained punishment of even minor criminals and his fear of "Liberty."
Thus Angelo projects his own internal struggle against desire onto the body
politic of Vienna. But Escalus, who m exercise self -restraint, does not find
cause "to whip them all." His speedy resolution of the case, once Angelo is

gone, hints that Escalus has reservations about Angelo's ability as a judge —-

208

and that all along, he is hoping the case will drag out until Angelo leaves so
that he himself can make the final decision.

Knowing that he is going to get little if any reliable testimony, either
from Elbow or the defendants, Escalus refers to the only objective evidence
he has: Froth's face. As Pompey notes, "If his I ace be the worst thing about
him, how could Master Froth do the constable's wife any harm?" (line 138)
This may seem like a slim basis on which to make a decision, but Elbow, as
“prosecutor,” certainly has not proved his case and the presumption of
innocence holds. Froth and Pompey are released with warnings.

After the case is decided, the scene continues for about thirty more
lines, which more firmly establish Escalus as an exemplar of the good judge.
Realizing that Elbow is simply incompetent as a constable, Escalus, in the
interests of better administration, seeks to replace him. However, Escalus
does this in a way which demonstrates his respect, kindness -— and
psychological acuity. He emphasizes Elbow‘s length of service by making an
intentional mistake that. elicits a com ment from Elbow himself on his
duration as constable. Then, Escalus stresses the frustrations of Elbow‘s
position, puts himself on the Constable's side, indicates his sympathy, and

makes Elbow feel that he he is doing him a favor by replacing him:

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 years
Together?

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? (II. 1. 43-52)

209

The scene concludes with a demonstration of Escalus' commitment to
his job. Elbow is to bring him the name of six or seven of the "most
sufficient men“ of his parish so that Escalus can choose a better constable.
Escalus is to bring the list. to Escalus' house, gag; dinner. (During the Tudor
and Jacobean periods, courts met only in the morning.) Escalus, in other
words, is a judge who is willing to do homework, and who cares enough
about what he is doing, to take his job home. As he exits, he is still
pondering the human problem of Claudio: "Mercy is not itself that oft looks
so;/Pardon is still the nurse of second woe/But yet -- poor Claudio." (62-5)

Escalus continues to display a rational approach to sentencing in Act
111. ii., where we see him in the process of sending Mistress Overdone to
prison for prostitution. While in the case of Pompey and Froth, Escalus
demonstrated that he knew the limits of severity, in the case of Mistress
Overdone, he demonstrates his understanding of the limits of mercy. Escalus
refers to three different cases in this scene, displaying a "measured"69
response to each. Despite Mistress Overdone's plea to Escalus that he is
accounted a merciful man, in her case, Escalus clearly realizes that mercy is

not the solution:

Double and treble admonition, and still forfeit
In the same kind! This would make mercy
Swear, and play the tyrant. (181-3)

There is clearly nothing to be gained by an extension of clemency to "a
bawd of eleven years continuance" (83); Escalus must respond with some
kind of punishment. Yet, there is no indication that Mistress Overdone will
be executed, for Escalus merely says, "Go, away with her to prison." (79)

Upon hearing that Kate Keepdown is with child by Lucio and that Lucio had

210

promised to marry her, Escalus orders Lucio to be called before him. Lucio
apparently has committed the same crime as Claudio, except that Lucio's is
worse, for unlike Claudio, he has no intention of marrying the mother of his
child. Again there is no indication that Escalus intends to punish this crime
with death, and he finally indicates with regard to Claudio that he would
save him if Angelo did not. stand in the way. In this scene, Shakespeare
again shows Escalus trying to walk a middle path between extreme severity
and extreme leniency, meeting out a punishment of middling severity and
that only after admonition has failed.

By the end of Act II., extreme examples of good and bad judges have
been presented to the audience, and Vienna has been shown to be a realm of
antithesis, where being and seeming do not coincide, justice and mercy are
placed in opposition, and the rituals which support government and
adjudication are ignored or abused. Escalus, although hindered by Angelo‘s
severity, and saddled with problems resulting from the Duke's leniency, is
working methodically and unobtrustively to establish a solid system of
criminal justice in Vienna. Escalus' lack of display can be seen as a strength
and a weakness. It is a strength because Escalus is more interested in
making the right decision than in using his judgeship to gain a name, which
is Claudio's accusation against Angelo. It is a weakness because hidden
virtue has little ability to inspire. The laws not only need to be administered
well, but for the system to achieve its ends, the public must know that the
laws are being administered well, and there are few witnesses at the trial of
Pompey and Froth or at the sentencing of Mistress Overdone. As Hermione
notes in A Winter's Tale, "One good deed dying tongueless slaughters a
thousand waiting upon that." The good deeds of judges must be perceived

and celebrated to be perpetuated.

211

D D D

It remains for the Duke, in Act V., to bring synthesis and harmony out
chaos by creating a ritual of justice. The Duke's second task, which
apparently becomes clear to him during the course of the play, is to stage a
theatrical spectacular to begin the moral regeneration of Vienna. He needs
to make an effective statement that his own authority will be reaffirmed,
vice discovered and rejected, virtue revealed and glorified, status assigned
according to dessert, and the ship of state set on a new course. The Duke
attempts to accomplish this through a highly dramatic trial —— a comic
crucible out of which the new society of Vienna is to be formed. To achieve
all of this, the Duke needs to produce a really remarkable trial, and when
one examines the Duke's production, and the machinations he must go
through to bring it about, its similarity to King james' production of the
preceeding December immediately becomes apparent.

Vincentio's trial features: an unqualified act of virtue in Isabella‘s
disinterested forgiveness of Angelo, a person she has legitimate reason to
hate; the revelation of Angelo's unsuspected judicial corruption; pleas for
mercy by those convicted (Claudio and Lucio), by Mariana for the life of her
husband Angelo, and by Isabella for Angelo; the adamant refusal by the
prince to listen to those pleas of mercy; the vital interest of the prince in the
preparation for death of those convicted; the apparent resurrection of
Claudio, a man mought to have been executed; and the pardon of thy; men.
all of whom at some time were on their way to immediate execution.

As we have already seen, james production on the scaffold of
Winchester featured his apparent strong denial of pleas for mercy by the
friends of Markham and Grey, by Raleigh's wife, and in Raleigh's case, by the

Queen. James led Grey to believe that Markham had been executed and

212

Cobham to believe that both Markham and Grey had been executed, so that
bringing them together on the scaffold would not miss its full effect --
”wherein Grey, Markham and Cobham looked upon each other's faces, as if
each had just rise from the dead."70 And most. obviously, james also made
1.11132 seemingly last minute commutations of execution, which were shortly
turned into pardons.

The Duke had to work rather harder than James to bring his rather
more complicated production to pass, but his manipulativeness and secrecy
are strikingly similar to james‘. As james kept his intention to commute the
executions of Markham, Cobham and Grey secret for three days, except from
his page john Gibb, so Vincentio kept Claudio's rescue secret from everyone
but the Provost. james was as willing to play with the emotions of the three
men, their friends and families, as Vincentio was ready to play with
Isabella's by telling her that Claudio was dead; and the justification for such
manipulation is identical in both instances -- James and the Duke wanted to
create a theatrical effect. Thus, Shakespeare and company put the
theatricality of trial on the Globe‘s stage for examination -- the same type of
theatricality in which james had engaged during the preceding November.

The main difference between the Duke's method of operation and
james‘, is that, in the final trial of Measure for masure. the Duke reveals
himself and takes personal control of the proceedings. He does not content
himself with pulling strings behind the scenes -- he takes a highly public
role, assumes direct responsibility for his judgments, and lays visible claim
to his full political authority as prince.

The public morality play which the Duke stages during the final scene
of Measure for Measure powerfully emphasizes the ritual aspect of criminal

trial and demonstrates Vincentio‘s determination to "stage himself to the

213

people's eyes" so that he can reestablish his lapsed authority. Occurring
within the context of another ceremonial occasion -- the "return" of
Vincentio as ruler -- the trial provides a ritual framework for several other
rituals: marriage ceremonies, rituals of status reversal, and rituals of
initiation. Thus, the trial in the last act of the play is a rich and complex web
of interdependent rituals, staged by the Duke not for the usual purpose of
determining guilt or innocence, but to join public ritual with private reality
for the purpose of revealing truth and reinforcing the political and moral
order. Whether the Duke achieves his purpose, however, is debateable.

Half the significance of the trial Vincentio arranges lies in Isabella‘s
forgiveness of Angelo, and Isabella‘s act of forgiveness can only display
exceptional virtue if she truly believes Claudio to be dead. Thus, for
Vincentio's production to succeed, he must lie to Isabella about her brother's
death and perpetuate that lie even after Angelo's confession, until the time
for Isabella's apotheosis has come. The revelation and glorification of
unfeigned virtue, in the character of Isabella, is as important to the health of
the body politic as the revelation and extirpation of Angelo's vice. Thus,
Isabella's role is crucial. But for the audience of Vienna (and the theater) to
accept her in the roles of Innocence, Mercy, and finally, Forgiveness,
Isabella's essential virtue and truthfulness must remain intact.71 In
addition, Isabella's request that Angelo be pardoned must rise so far above
self ~interest and the human desire for revenge that. it. leaves the audience
awestruck. The more there is to forgive, the more wonderful the
forgiveness.

The final act begins with Duke Vincentio entering Vienna, and for the
first time in the play, staging himself to the people‘s eyes, mingling with the

pe0ple to give them "an example of humanity and munificence." The highly

214

choreographed welcome given to Vincentio on his "return" to Vienna -- with
leading citizens meeting him at the city gate, trum peters sounding his
entrance, and a procession through the streets -- is remarkably similar to
that given assize judges, as they toured their circuits, ”met by trumpeters
and the sheriff 's bailiff. . . attended by pikemen and liverymen specially
clothed for the occasion, [wlelcomed into town with bells [and] music."
Vincentio emphasizes his reassertion of authority by requiring Angelo and
Escalus to meet him at the gates of the city and redeliver their authority to
him. With Angelo on one hand and Escalus on the other, Vincentio proceeds
through the streets of Vienna, emphasizing that power is centralized in _h_i_s
person, that his judges are appendages, that he is once again in control.

In addition, a proclamation is issued that "if any crave redress of
injustice, they should exhibit their petitions [to the Duke] in the street,"
giving Isabella her opportunity to bring charges against Angelo, but also
underscoring the Duke‘s return as a new beginning. (1V. iv. 8-9) The trial

starts when Isabella kneels before the Duke and issues her complaint:

0 worthy prince, dishonor not your eye

By throwing it on any other object

Till you have heard me in my true complaint

And give me justice, justice, justice, justice! (V. i. 22-5)

The Duke responds to Isabella's accusation by accusing her of
conspiring against Angelo; then he commits an obvious breach of procedure
by allowing Angelo to judge his own case. That a judge cannot decide a case
in which he is a party was as much a rule in Shakespeare's England as it is
today,72 and Vincentio's act would have been immediately recognized by
the educated members of Shakespeare's audience as an extreme breach of

law. Given the fairly strong connection between the Duke and james I, it has

215

even broader implications, for in the context of a treason trial, such as
Raleigh's, the King, for all practical purposes, was in fact judge and party. In
a sense, the King is a party to all criminal cases, as the titles of criminal cases
in England testify. But the King was a particularly interested party in
treason cases, which often included an allegation that the defendant
intended personal violence to the king's physical as well as political person.
Since the judges represented the King a latere regis, and since the king could
bring virtually irresistible pressure to bear on judges and witnesses in order
to obtain a conviction, treason defendants were routinely placed in the
position of Isabella, pleading her case to a judge who is the man she is
accusing. In Measure for Measure, this intentional bit of despotism is merely
staging by the Duke to give dramatic emphasis to Isabella‘s plight, and to
allow himself to exit, change costume, and participate in the trial as Friar
Lodowick. The situation of treason defendants was not so benign and, in the
wake of Raleigh's trial, this was one possible way in which the issue could be
surreptiously raised and examined.

By assuming the identity of Lodowick and putting himself into the
trial as one of the defendants, the Duke has begun, in effect, what
anthropologists refer to as a "status-reversal" ritual, characteristic of
festivals such as Fasching or Mardi Gras, in which the elders, and other
authorities of the city are "dethroned" for a brief period, and the commoners
are put in mock positions of authority.“ Occasions of status reversal seem
fundamental to the ethos of medieval and renaissance Europe, the paradigm
of the central cultural myth being a status reversal: God takes on human
form, allows his own subjects to put him on trial and crucify him, resurrects

himself, and on judgment day, judges them. The fifth act of Measure for

 

Measure as we shall see, figures forth this "perfect pattern." In this

216

instance, the Duke makes his subject Angelo the judge, not only of Isabella, a
novitiate in a Christian order, but of the Duke himself, disguised as Friar
Lodowick. In a festival, of course, the temporariness of the role reversal,
and the ludic nature of the reversal, is evident to all. In the final act of
Msure for Mflure. the ludic nature of the situation is not immediately
apparent to the fictional participants, who unlike the audience are not in on
the "joke." However, the Duke has adopted a status reversal ritual to
accomplish the ends of all such rituals: the reaffirmation of existing
structures of power and authority.

In The Ritual Process, Victor W. Turner explains the structure and

function of such status reversal rituals:

Cognitively, nothing underlines regularity so well as
absurdity or paradox. Emotionally, nothing satisfies as much as
extravagant or temporarily permitted illicit behavior. Rituals of
status reversal accommodate both aspects. By making low high
and the high low, they reaffirm the hierarchical principle. By
making the low mimic (often to the point of caricature) the
behavior of the high, and by restraining the initiatives of the
proud, they underline the reasonableness of everyday
culturally predictable behavior between the various estates of
society. On this account, it is appropriate that rituals of status
reversal are often located either at fixed points in the annual
cycle or in relation to movable feasts that vary within a limited
period of time, for structural regularity is here reflected in
temporal order. It might be argued that rituals of status
reversal are also found contingently, when calamity threatens
the total community. But one can cogently reply by saying that.
it is precisely because the whole communit is threatened that
such countervailing rites are performed. 7

Perhaps the play accomplished the same ends for Shakespeare's

audience, who after a few hours of vicarious "ludic" participation, may have

217

left the theater reaffirming the status quo.75 On the other hand, and what I
believe is more likely, the play may have demystified rituals of status
reversal simply by putting them on stage for examination. The power of
theater and ritual as political techniques may have been diminished by the
effective demonstration, on stage, that they ye merely techniques, by
getting the audience to see on stage what could not be gen off stage. Given
the readiness of Renaissance audiences to see correspondences even when
none were meant, it is likely that such issues were considered, and that
Shakespeare's drama truly did affect. as well as reflect his society.

By Turner's definition, the Duke's status reversal ritual is a contingent
one, produced for the purpose of avoiding a calamity76 that. threatens the
whole community of Vienna: the threatened dissolution of the body politic
into disorder, anarchy, and violence. The pattern of act five corresponds
with that described by Turner. Vincentio, masqued (as is common during
rituals of status reversal) is judged by an inferior, who, in this instance.

masks his corruption by his position:

.. . 0 place, 0 form
How often dost thou with thy case, thy habit,
Wrench awe from fools, and tie the wiser souls
To thy false seeming! (11. iv. 12-5)

Vincentio is abused by someone even more inferior than Angelo -- Lucio,
and when Lucio pulls off Friar Lodowick‘s hood, revealing the Duke, the
shock of recognition is apparently accompanied by a powerful
reestablishment of the Duke's status, a dethronement of venal authority in
the person of Angelo, and the laying hold of rumor in the person of Lucio.
The Duke's magical revelation of Angelo's corruption adds to his authority as

ruler, and the ritual of the “inferior" friar becoming the "superior" Duke

218

satisfies -- and purges -- the corresponding illicit desire in the populace to
overthrow authority, a desire partly articulated in Lucio's slanders of the
Duke.

In making use of the myth of Christ, Shakespeare presents the Duke
intentionally appropriating the numinous energy of the most powerful myth
available and uses it to bring the social order of ”Vienna" into closer
conformity with the Tudor scheme of a hierarchical Christian universe. Both
Isabella and the Duke (as Friar Lodowick and as himself) function in the trial
scene as types of Christ. Isabella and Vincentio appear emblematically as
Christian figures in their roles as novitiate and friar, and the trial, in many
respects, sets forth a ritual reenactment of Christ's passion. Both Isabella
and Friar Lodowick find themselves before a corrupt judge, as Christ did
before Caiaphus. Isabella is betrayed and Lodowick is slandered and abused
by Lucio, a type of Judas and angry crowd in one. When all seems lost, Lucio
unfrocks Friar Lodowick to reveal the Duke, accomplishing the Duke's
resurrection. The tables turn, with the prosecuted becoming the triumphant
and Angelo and Lucio finding themselves as defendants. Lodowick the f riar
becomes Vincentio the judge. The Dukes sudden transformation, his
omniscient knowledge of Angelo’s wrongdoing, his control of events, and his
theatricality (for Christ's death and resurrection are certainly dramatically
compelling) establish his god-like credibility in the eyes of the populace, and

even Angelo confesses to the Duke as if he were God:

0 my dread lord

I should be guiltier than my guiltiness

To think I can be undiscernible,

When I perceive your grace, like power divine,
Hath looked upon my passes. Then, good prince,
No longer session hold upon my shame,

219

But let my trial be mine own confession. (V. i. 362-68)

The Duke orders the execution of Angelo and fulfills the three general
functions of criminal punishment: purification of the body politic by the
public revelation and extirpation of vice, retribution and the deterence of
future criminal activity.77 But purgation is only a partial remedy for
Vienna's moral lassitude. If vice is to be publicly purged, then virtue needs
to be publicly celebrated, so that not only a morality of duty is encouraged,
but also a morality of aspiration.78 To accomplish this, the Duke has
deliberately contrived a situation in which Isabella can become such an
exemplar. However, though ceremonies may be required by force, the
expression of virtue must be the result of free—will, and therefore the Duke
is not completely in control of Isabella's actions. All Vincentio can do is to
set the stage by bringing Isabella into contact with Mariana, and by making
her believe that Angelo's order for the execution of Claudio has been carried
out.

When Mariana's pleas to Vincentio for the pardon Angelo are ,
unavailing, she asks Isabella to intercede -- "to lend . . .your knees." (427)
To emphasize the unearthly character of what Isabella is about to do, the

Duke sets forth the most probable human reaction to Mariana‘s plea:

Against all sense you do importune her;

Should she kneel down in mercy of this fact,
Her brother's ghost his paved bed would break,
And take her hence in horror. (V. i. 429-432)

Isabella, however, fulfills all of the Duke's unstated expectations. In the
dramatic apex of the play, Isabella kneels, and motivated by sympathy for

Mariana, pleads that Angelo be pardoned:

220

Most bounteous sir.
Look, it it please you, on this man condemned
As if my brother lived. I partly think
A due sincerity governed his deeds
Till he did look on me. Since it is so,
Let him not die. (V. i. 439-444)

These lines accompany Isabella's ritual apotheosis. In asking mercy
for Angelo, the ”murderer" of her brother, the man who has done everything
he could to virtually rape her, Isabella becomes "a thing enskied and
sainted," (1. iv. 314) making mythic truth of Lucio's earthly cynicism.
Isabella's act of forgiveness also brings to a conclusion a rite of passage
begun in Act 1., when we see Isabella preparing to enter the Order of St.
Clare. Throughout the play, Isabella has been in a condition which Arnold
Van Gennep, in his seminal work, The Rites of Pa_ssaga, called the ”liminal
phase."79 According to Van Gennep, in a rite of passage, when one is passing
from one status to another, there is a liminal period in which ones

"attributes" are ambiguous because one‘s status has not been defined:

Liminal entities are neither here nor there; they are betwixt
and between the positions assigned and arrayed by laws.
custom, convention, and ceremonial. As such, their ambiguous
and indeterminate attributes are expressed by a rich variety of
symbols in the many societies that ritualize social and cultural
transitions. Thus, liminality is likened to death, to being in the
womb, to invisibility, to darkness . . . to an eclipse of the sun or
moon. 0

A monastic order itself is a form of institutionalized liminalism of

passage from this world to the next,81 and as a novitiate, Isabella occupies a

221

position "betwixt and between" full membership in the order and her status
as a lay person, between taking the life of a celibate or the sexual life of a
wife and mother. It is also obvious, given Isabella's unforgiving and
unnecessarily spiteful response to her brother‘s pleas to save his life that
Isabella is also a novice in truly understanding Christianity, for while she can
talk of forgiveness. she finds it impossible to be forgiving to either her
brother or herself. She is as much the thrall of legality as Angelo, and
therefore, her status as a Christian is ambiguous.

During her trial Isabella shares a liminal status of another kind: that of
the criminal defendant awaiting the outcome of her case. In jeopardy of
conviction, she can only exercise patience until the trial runs its course and
her status is finally determined. That she understands this situation is

evident from her prayer:

0 you blessed ministers above
Keep me in patience, and with ripened time
Unfold the evil which is here wrapped up
In countenance. (V. i. 115-8)

The outcome of Isabella's rite of passage also remains "wrapped in
countenance," as if enwombed, until “ripened time" brings forth the truth.
Isabella, of course, is "acquitted" and Angelo ”convicted." Isabella not only
forgives Angelo, but begs, at Mariana‘s request, that Angelo be spared,
finally putting into practice the course of mercy she had urged Angelo to

take:

Alas, alas,
Why all the souls that were f orf eit once
And He that might the vantage best have took
Found out the remedy. How would you be

222

If he who was the top of judgment should
But judge you as you are? 0 think on that.
And mercy then will breath within your lips,
Like man made new. (11. ii. 72—9)

Isabella emerges as more than a mere apologist for Christian forgive-
ness. Isabella comes through her rite of passage as the personification of
forgiveness. Moreover, her empathy for Mariana's impending loss indicates
that perhaps Isabella's real initiation is not into the Order of St. Clare but the
secular world of women.

As James had apparently decided to execute Raleigh, despite the pleas
of Raleigh's wife or the Queen, so the Duke, apparently. decides to execute
Angelo despite the pleas of Mariana and Isabella. This, of course, is all part
of the show, which is revealed and concluded in the last half of act five.

I: B E.

For several reasons, the ending of Measure for Measure has proved
troublesome to critics for over a century and a half. Coleridge commented
that the play is "the most painful -- say rather, the only painful -- part of his
(Shakespeare's) genuine works. The comic and tragic parts equally border on
the . . . disgusting, (and) the . . . horrible. and the pardon and marriage of
Angelo not merely baffles the strong indignant claim of justice. . . but is
likewise degrading to the character of women.”82 A. C. Bradley described
Vincentio‘s marriage to Isabella as a "scandalous proceeding,83
Quilter-Couch found the character of Isabella to be repulsive and incon-

sistant.84

and L. C. Knights questioned the wisdom of marrying Angelo and
Mariana and the Duke's seemingly wholesale pardon policy.85 More
recently directors have emphasized some of the features of the "comic“
ending which make the play problematic: the Duke's excessive and

apparently indiscriminate use of the pardon power.86 the Duke's possibly

223

coercive and unwanted proposal to Isabella,87 and the efficacy of the
imposed marriages at the end of the play.88 These critical and interpretive
reservations about whether the Duke finally achieves justice in his realm of
Vienna focus mainly on the last half of the trial scene in Act V.

Critics who have defended the play offer several arguments in an
attempt to meet or explain away these objections. Battenhouse,”
Bennett.90 Coghill,91 Fergusong‘2 and Knight93 contend that much of the
confusion in critical response is do to a misunderstanding of the play's
genre}M that if the play is interpreted as an allegory the ending becomes
much less problematic.

I believe that the ending needs to be examined in light of the
contemporary social issues which it. raised for audiences in 1604. It is
possible. even likely, that those audiences found the closure of Measure for
Measure troublesome, but it is also likely that they found it stimulating,
because it posed questions and explored issues in which they and their
country were deeply involved.

First, let us consider the pardons. The Duke's "pardon" of Angelo is
particularly troublesome since it is highly ambiguous whether Angelo is
legally guilty of anything anyway. This, I believe, becomes obvious as the
play moves toward conclusion and constitutes a final ironic revelation of the
divergence between true justice and mere legality. Although Angelo is
morally culpable, it is not clear, as Isabella recognizes, that Angelo has
committed any crime at all and her argument makes perfect legal, if not

moral, sense:

My brother had but justice,
In that he did the thing for which he died.
For Angelo.

224

His act did not o‘ertake his bad intent,

And must be buried but as an intent

That perished by the way. Thoughts are no subjects.
Intents but merely thoughts. (V. i. 444—450)

To commit a crime, as Isabella points out, one must iatand to commit
a criminal act and then. commit the act, i. e., the act must "o'ertake [the] bad
intent." Act and intention must l_)_o_tla be proven to establish a crime. This is
the law today. and it was the law during the time of Elizabeth I and James I.
As Kadish, Schulhofer and Paulsen explain in The Criminal Law and Its

95

Processes an objectively innocent act, even though accompanied by evil

 

intent, cannot be regarded as a crime. Thus, the following are n_O_t crimes: "A
soldier during battle shoots and kills an enemy soldier believing that his
victim is his own sergeant. A man has sexual intercourse with a woman over
the age of consent, though he believes that she is underage. A man
deliberately shoots and kills (the) deceased unaware that at that very instant
[the] deceased was about to kill him." In all of these cases an evil intention
is present, but the actor committed no crime because his actions were not
illegal. This principle reaches back to the beginnings of English common
law?6

In the case of Angelo, the element of illegal action appears to be
missing. What is Angelo to be executed for? The murder of Claudio? Even if
Claudio were dead, which, of course. he is not, Claudio has merely received
what was coming to him under a literal application of the law. Angelo may
have enforced the law for the wrong reasons -- but that is no crime, the
important fact being that laws are to be enforced. Angelo had the raga; to
execute Claudio for fornication. Therefore, Claudio's death cannot form the
basis for a criminal charge against Angelo.

Is Angelo to be executed for the seduction of Isabella? Though he

225

intended to seduce her, and thought he gag seduced her, he never actually
committed the act. He wound up in bed with Mariana.

Does Angelo's Iiason with Mariana, then, constitute the crime of
fornication? In other words, did the Duke's bed-trick result in an illegal act?
This is much more ambiguous. There has been a great deal of scholarly
interest in this question, resulting in a series of articles on the precontracts
in Measure for Measure. 97 If Claudio and Julietta are guilty of fornication.
the argument goes, despite the fact of their precontract, why are not Angelo
and Mariana equally guilty for having sex after a precontract but before the
marriage ceremony? If anything, the crime of Claudio and Julietta seems
less severe, since they at least desire to wed each other. but Angelo does not
desire to wed Mariana. Critics have tried to draw a distinction on the basis
of the typa of precontract. each couple had,98 asserting that the
Claudio-Julietta precontract was de future and that the Angelo-Mariana
precontract was de praasenti, and that this distinction supports a distinction
in punishment, or even a distinction in whether there was a crime. There
are several difficulties with this entire debate. First, under the laws in place
in Jacobean England. both the acts of Claudio and Angelo certainly would

constitute crimes. As previously indicated, prenuptial intercourse even

between couples who were married pursuant to a de praesenti or a ga

 

[ataigg contract was illegal. But the question is not whether the act is legal in
England, but whether it is legal in Maasure for Measures mythical world of
“Vienna." Since throughout the play, characters make reference to law which
is in place in England. it seems most reasonable to assume English law holds
in this stage—world unless specifically replaced with "stage-law‘" That the
death penalty would be given for fornication or sexual slander is obviously

stage law law which sharpens and exaggerates the struggle between

226

justice and mercy and which also which sets before the audience possible
responses to contemporary issues involving sexual incontinence and
marriage.

That Mariana could have intercourse with Angelo without committing
a sin or a crime is more stage law -- and if Mariana is not guilty of
fornication, then Angelo cannot be guilty of it either. The Duke specifically

tells Mariana that she is not committing a sin in bedding Angelo:

Nor. gentle daughter, fear you not at all;
He is your husband on a pre-contract
To bring you thus together. ‘tis no sin,
Sith that the justice of your title to him
Doth flourish the deceit. (1V. i. 70-74..)

Is the Duke urging Mariana to sin and break the law so that he can
entrap Angelo? Is he giving a correct statement of "Viennese" law? In the
preceeding scenes, the Duke has demonstrated a great respect for spiritual
matters: he is a good confessor and even delays Barnardine's execution at the
risk of spoiling his entire scheme, which demonstrates his recognition that
spiritual values have a certain priority. There is no good reason to reject
the Duke, in this instance. as a reliable and honest authority on law and sin
in "Vienna." The only course available, therefore, is to accept the Dukes
opinion that there is a distinction between Claudio's situation and Angelo s.
Therefore, it seems. Angelo is not guilty of fornication with Mariana.

But can Angelo be held guilty for attemgting to commit the murder of
Claudio or fornication with Isabella? Again, the answer is no, for at the time
of Shakespeare, the criminal law of ”attempts“ was virtually non-existent.
That Angelo could even have been charged with such a crime would not

have occurred to Shakespeare or the audience. "The old English law 'started

227

from the principle that an attempt to do harm is no off ense'” 98 ”There did
not. exist a general conception that an attempt to commit a crime was
criminal as such."100
Although the argument which I suggest as to Angelo's technical

guiltlessness may seem overly ingenious, the play text itself indicates that
Vincentio not only understands Isabella's argument but feels its force.
Vincentio never refutes Isabella's argument or indicates in any way that it is
incorrect with regard to the crimes of fornication or murder. BUt apparently.

because of the persuasiveness of Isabella‘s argument the Duke is forced to

come up with another charge in order to continue his play:

Your suit's unprofitable; stand up. I say.

I have bethought me of another fault.
Provost, how came it Claudio was beheaded
At an unusual hour? (V. i. 451-54)

It is hard to believe that the beheading of Angelo at an unusual hour.
by private message (V. i. 456) would be a capital crime, Angelo having full
power of sovreignty in Vincentio's absence. Once Claudio is revealed, his
head yet on his sholders, it becomes extremely ambiguous whether there is a
crime for which Angelo can be convicted, and therefore, whether there is a
crime for which he need be pardoned. The Duke description of Angelo‘s

reaction when Claudio is uncowled provides further support:

By this Lord Angelo perceives he‘s safe
Methinks I see a quickening in his eye. (V. i. 490—1)

The words could indicate that Angelo now at. least has the hope of
presenting a defense -- or even that, upon seeing Claudio, he feels

completely "safe." It is important to note that these lines occur before the

228

Duke's line: "I find an apt remission in myself,” which is usually interpreted
as a pardon of Angelo. That line, however, may not even be in reference to
Angelo. The Duke seems to be done with Angelo before he even delivers the
line, as is suggested by the two preceeding lines: "Well. Angelo, your evil
quits you well/Look that you love your wife; her worth, worth yours.“ (V. i.
492-3) Second, the Duke seems to be turning his attention toward Lucio. and
the line could simply be a declaration by the Duke that despite his
inclinations, he will not pardon Lucio: "I find an apt remission in myself ./
And yet here's one [Lucio] in place I cannot pardon." (V. i. 494-5). Third,
even if the Duke is referring to Angelo, the "remission" he speaks of may not
be a legal declaration, but simply an indication of the Duke's personal
willingness to forgive Angelo. Still, it is possible that the Duke‘s "remission ‘
does constitute a pardon of Angelo.

The irony is that Angelo, who has demonstrated far more wickedness
than Claudio, may not actually be guilty of a crime, while Claudio, everyone
in the play agrees, is guilty. Broader political implications arise from the fact
that Angelo is brought within a hair's breadth of execution --— even though it
is quite unclear he has committed any crime. This, of course, was the
problem with Raleigh's conviction, which rested solely on the shaky support
of Cobham's ever shifting confessions. The very ambiguousness of Angelo's
position matches that of Raleigh, whose guilt was not proven to the populace
-- but whose innocence was never conclusively established either, and
whose fate, after the deferral of his execution, was anything but clear.

The pardon of Barnardine, an unrepentant murderer, is perhaps even
more problematic than that of Angelo. Barnardine is the most subversive
character in the play -- the person who most consistently refuses to play the

socially assigned role of a repentant man on his way to execution. Ironically.

229

it is his refusal to play the part that has kept him alive so long. He cannot be
executed because he does not fit into the standard script for executions.
Barnardine's absolute refusal to be the socialized scapegoat of the judicial
system or the church poses the greatest threat to the Duke's new society, and
from the Dukes point of View, Barnardine "wants advice." Someone needs to
"persuade this rude wretch willingly to die," or else the performance of
execution will be thwarted. Barnardine is not one of the Duke's victories and
that is why he is turned over to Friar Thomas for what amounts to
”reeducation." Barnardine's subversiveness is accentuated by his audience
appeal; he can be one of the funniest characters in the play, and he makes
resistance appear enjoyable. The audience simply does not want to see him
executed. and this too has obvious political implications. James' interest in
bringing Cobham. Markham and Grey to the proper state of repentance was
not motivated solely by concern for their religious welfare. The carefully
controlled gallows spectacle of repentance by Cobham, Markham and Grey
was typical of what occurred at most executions: the condemned man
admitted guilt. stated his acceptance of the verdict, the justness of the
sentence, and pronounced his willingness to die. Thus, the condemned were
forced into the role of legitimating their own executions. Barnardine refuses
to legitimate any of the process, and offers the audience the same blackly
comic alternative.

Lucio's pardon is less problematic. His crime is slandering the Duke.
In a less obstinate style Lucio poses the same type of threat to the Duke's
new social order as Barnardine. He exerts his independence by choosing a
role that does not fit into the established order. But. in his role, Lucio is far
more dependent on society than Barnardine. Lucio needs Vienna because he

needs an audience and subject matter that audience will appreciate, such as

230

gossip about the Duke. He has little sense of duty to anyone but himself.
Although he urges Isabella to come to Claudio's aid. he is quite willing to
testify against her in Act V. Though he has promised to marry Kate
Keepdown, the mother of his child. he has refused to honor the promise. The
Duke orders Lucio to be married to Kate Keepdown, and then after the
ceremony, to be whipped and hung. Although during Tudor and Jacobean
times people were particularly sensitive to the crime of sexual defamation
and slander,101 (recall Elbow's indignation at the accusation that his wife
was a "respected" woman) it was not regarded as a capital offense. The
Duke's sentence that Lucio be hung would be notably excessive, except his
quick commutation of the sentence indicates that from the beginning. he was
merely trying to throw a scare into Lucio. Even Lucio seems to understand
this. The portion of his sentence requiring whipping and hanging does not
seem to bother Lucio very much -- he does not even respond to it. But
being made a cuckold -- even for the short time before he is to be whipped
and hung -- brings him to beg for mercy: "Marrying a punk my lord is
pressing to death/whipping and hanging." (V. i. 517-8) The Duke, of course.
withdraws the order that Lucio be whipped and hung, but the marriage goes
forward, and aside from the dramatic inadvisability of executing one of the
most comic characters in the play, Shakespeare and the Duke seem to have
given Lucio what he deserves. though the question remains whether they
have given Kate Keepdown what she deserves.

By the end of the play. three pardons are issued on stage and Claudio.
like Markham and Grey, is "resurrected" from the dead. For some spectators
these fictional events may have been a fictional recelebration of the pardons
issued by James -- for others, a fictional reexamination of those pardons

which led not to closure but to more thought. Shakespeare's audience could

231

not have know yet that the pardons of Markham, Grey and Cobham were to
establish a pattern. James I made particularly liberal use of the pardon
power. As noted by Rolph in The Queen's Pardon. "In the sixteenth,
seventeenth and eighteenth centuries the royal pardon was in fact being
granted pretty f reely, the Stuart Kings in particular placing reliance on the
hot line by which they felt themselves to be connected with the Holy
Ghost."102 The three pardons we see at the end of M_aaaure for Measure
not only reflected the past, but set before the audience a type of political
action which would continue.

Another difficulty for critics has been the Duke's use of forced
marriage as a solution to sexual licence. Angelo and Lucio are both coerced
into marrying women they obviously do not love, and the Duke, perhaps,
coerces an unwilling Isabella into marriage with himself. As Jonathan
Dollimore has pointed out, Msure for Megure seems obsessed with the
subject of sexual license and the need to control it.103 Dollimore's thesis is
that sexual license is articificially blown into crisis by the state. so that an
excuse is afforded for more thoroughgoing social control. Dollimore may be
at least partly correct, though the "crisis" in Shakespeare's day was not
simply an artificial creation of the government. As Margaret Spufford has
argued,104 though the culpability of sexual offenders was couched in moral
terms, the principle motivation for the punishment of sexual crimes was
economic -- to keep the support of bastards from falling, under the Poor
Laws, on the parishes where the children were conceived. In relatively
prosperous areas of England, there was little bastardry because people could
afford marriage, and therefore. there was little attention paid to sexual
crime. In less prosperous areas, however, where payment to support

f atherless children was a genuine sore spot, economic concern generated the

232

moral outrage which inspired rigorous enforcement of laws governing
marriage, sexual slander and defamation, and sexual incontinence.

The Duke's concern with the sexual slander spread by Lucio could be a
reflection of tales that had already spread about James‘ sexual preferences.
But I think it is more likely that Shakespeare is confronting a more
widespread problem of slander. J. A. Sharpe notes that "considerations of
honour, good name and reputation were of central importance"105 to
Jacobean society. They were also matters of economic importance. When an
unmarried woman was found to be pregnant, the first response by those in
authority was to find the father, for if the father could be identified, he could
be found and forced to pay for the support of the child. Raleigh had an
illegitimate daughter whom he acknowledged and supported, and very little
moral opprobrium attached to him as a result. But the men who attempted
to avoid financial responsibility were "demonized" as moral failures. Aside
from the distastefulness of being accused of sexual incontinence, the
purported father was under a monetary threat. If charges against him were
proved, he had to support the child. This goes a long way to explaining the
extreme sensitivity in Shakespeare's day to sexual slander, since a slander
could develop into a formal accusation in ecclesiastical court of Illicitly
fathering a child.

The bizarre marriage laws in force in England throughout the
sixteenth and seventeenth centuries merely made matters worse, and it is
necessary to take a digression into the marriage law of the period to
understand the significance to Shakespeare's audience of Measurg for:
Measure particularly the final trial. The cases of Claudio and Angelo will

 

furnish instructive examples of how English marriage law generated

problems. Claudio describes his offense and his relationship with Julietta as

233

follows:

Upon a true contract
I got possession of Julietta‘s bed.
You know the lady, she is fast my wife,
Save that we do the denunciation lack
Of outward order. This we came not to do,
Only for propagation of a dower
Remaining in the coff er of her friends,
From whom we thought it meet to hide our love
Till time had made them for us. (1. ii. 142—81

In other words Claudio and Julietta have, if we assume English
procedures apply, married themselves by forming a mutually binding
contract of marriage. According to the law of Shakespeare's day, people
could become married simply by private agreement to regard themselves as
man and wife. No ceremony or public proclamation of bans was necessary in
order to form a valid marriage. Two kinds of marital contracts were
recognized in Shakespeare's England: de f uturo contracts and ae praesenti
contracts.106 A de f uturo contract was basically a promise made by the
couple signifying their intention to marry at a future time. This was the
equivalent of an engagement. (The words "I will marry you," would be
sufficient to form a de f uturo contract.) In forming a de praesenti contract,
the couple essentially agreed that they way; married, and the contract itself,
even if made in private, constituted a valid marriage. (The words "I take you
as spouse" would be sufficient to form a de praesenti contract.) A de futuro
contract followed by sexual intercourse became the equivalent of a ,da
praesenti contract, i.e., it constituted a marriage.107 Under this law, Lucio
would be married to Kate Keepdown, since he promised to marry her and

had sexual union with her.

234

Although marriage contracts were legal, and a couple could, in effect,

marry by forming a binding contract, it was illegal to liva as husband and
wife or to bye sextail intercourse prior to a wedding ceremppy. or public

proclamation of bans. (In the 12th century, the Church had made

 

cohabitation before the ceremony illegal in an attempt to gain control over
the sacrament of marriagems) A substantial number of English couples,
however, simply ignored the formality of the ceremony and set up
housekeeping immediately after the contract. This course was possible in
most European countries throughout the Middle Ages until the Council of
Trent in the middle of the sixteenth century, when the Church finally
declared lay marriages to be invalid as well as illegal. However, in England,
such marriages remained valid (but illegal) until the case of the Queen v.
m in 1844,1139 when an English court finally held that marriages not
celebrated before an ordained priest were invalid. Thus, under English law.
though Claudio and Julietta (and Lucio and Kate) would have a legally
b_ipgi_ng marriage -- their act of may marriage would have been illegal. If,
as the Duke tells Mariana, she and Angelo have a valid precontract, it seems
that the bed-trick also would have made them husband and wife. On the
continent, these three couples would not have been married at all.

The ability to effect a marriage in private led to significant social
problems in Tudor and Jacobean England, for men were often able to lure
women into bed by making a de praesenti contract (recall Claudio's "upon a
true contract/ I got possession of Julietta's bed") -- and then making
successive de praesenti contracts with as many women as they liked. The
result was widespread serial polygamy.110 People who had led a life of
promiscuity, but who had finally settled down with one partner, seldom

formalized their marriages in public ceremonies for fear that a previous

235

partner could object to the wedding on the basis of a former precontract, or
even marriage. (Since the first de praesenti precontract would have
constituted marriage, all subsequent contracts would have been adulterous,
and all children born of subsequent unions, illegitimate.) In addition, since
private marriage was regarded as valid, it was difficult for the people,
especially those of the lower classes, to take seriously the illegality of such
marriages, and so private marriage flourished. Henry Swinburne's treatise
Of Spousals, written in the late sixteenth century,l 11 clearly reflects the

social problems created by the confusing marriage laws:

The "Law doth forbid all Persons to make Secret Contracts of
Spousals, or Matrimony; and that justly, considering the
manifold discommodities depending thereupon, namely, for that
hereby it cometh to pass oftentimes, that the Parties secretly
contracting, are otherwise formally affianced, or so near in
Blood that they cannot be Married; or being free from those
impediments, yet do they alter their purposes, denying and
breaking their promises, whence Perjuries" and "many more
intolerable mischief 3 do succeed." Yet though "Secret Marriages
are done indeed against the Law," it is held that once contracted
they cannot be dissolved because public "sole mnities are not of
the Substance of Spousals, or of Matrimony, but consent only; . .
. . So that it may be justly inferred, that the only want of
Solemnity doth not hurt the Contract." Moreover, if it be urged
that "seeing secret Contracts cannot be proved, it is all one in
effect, as if they were not," it may be answered that such is
truly the case ']ure fori, non jure poli, Before Man, not before
God; for the Church indeed doth not judge of secret and hidden
things," but before Almighty God "bare conscience alone is as a
thousand Witnesses: Wherefore I do admonish thee, that hast in
truth contracted secret Matrimony, that thou do not marry any
other Person; for doubtless this thy pretended Marriage, how
lawful soever it may seem in the eye of Man, who judgeth only
according to the outward apperance, is nothing but meer

Adultery in the infallible sight of God's just Judgment."112

236

Aside from criminal sanctions, the only solution offered by English law
to a jilted partner was "forced" marriage. Women who had married
privately -- or who had become engaged -- could sue in ecclesiastical court
for enforcement of the contract. The forced marriages of Angelo and Lucio at
least provide an intermediate step between ignoring the social problem of
child support and executing the father (a step which seems absurdly
counterproductive if one wants the father to support his children). Forced
marriage of course produces obvious problems, just as does the inability to
obtain a divorce. These were problems, however, for which Shakespeare's
age had little solution.

In addition to the widespread contemporary concern with sexual

slander, James had also let England know, in the Basilikon Doron that

 

slandering a prince was a matter of central concern to him: .

Vnto one fault is all the common people of this Kingdome
subiect, as well burgh as land; which is, to iudge and speake
rashly of their Prince, setting the Common-weale vpon foure
props, as we call it; euer wearying of the present estate, and
desirous of noueltie. For remedie whereof (besides the
execution of Lawes that are to be used against vnreuerent
speakers) I know no better meane, then so to rule, as may
iustly stop their mouthes from all such idle and vnreuerent
speeches; and so to prop the weale of your people, with
prouident care for their good gouernment, that iustly, Momus
himselfe may haue no ground to grudge. . .113

Again Shakespeare seems to echo James, when, in response to Lucio's
complaint that being forced to marry a punk is both pressing and hanging,
Vincentio says: 'Slandering a prince deserves it."

E) Cl C)

237

The final objection to the fifth act is the Duke's proposal to Isabella.
Isabella's silence to the Duke's two proposals of marriage can generate a host
of interpretations, but all must address the issue of whether Isabella accepts
or rejects the proposal and the manner in which she does it.114 The
propriety of the Duke‘s pr0posal is also on the table. Other characters have
tried to force Isabella into roles from the very beginning of the play. First
Lucio directed her in her performance before Angelo, when Isabella pleaded
for Claudio‘s life. Then Angelo and Claudio both tried to put her into the
position of prostitute. Then the Duke cast her in the role of fornicator,
convincing her to commit perjury and slander herself in the bargain. Then
Mariana once again put her into the role of supplicator. Finally, the Duke
tries to put her into the role of wife. Whether, in the end, Isabella allows the
Duke to define her part, or whether she stands silent because she finally
refuses to take on that last role, the issue of coercion has been raised. It is
possible that at the end of the play, Isabella‘s silence and Barnardine‘s merge
in mute resistance.

Arguably, Measure for Measure reaches both the formal closure
appropriate to comedy and an ending which is morally satisfying. The threat
to the lives of Claudio, Barnardine and Angelo is averted. Escalus, who has
come closer than any other judge in the play to steering a middle course
between justice and mercy, will play an important part in the future
government of Vienna. The Duke tells him: "Thanks, good friend Escalus, for
thy much goodness;/There's more behind that is more gratulate." (V. i.
523-4) The Duke , in making clandestine marriages public, and enforcing
contracts of marriage already made between the parties, merely
reestablishes the order needed for a society to function and the ceremonies

required by the Duke will help to assure that Angelo and Lucio fulfill their

238

spousal responsibilities. And in the theatricality of the final trial, the Duke
has elevated virtue, extirpated vice, and reestablished his own authority in
Vienna, and in the process provided examples of moral inspiration for his
people.

But the Duke‘s theatricality has its price. To reaffirm the ritual of
marriage, he must create two marriages which offer little prospect of
happiness; to display Isabella as a moral exemplar, he must lie to her about
her brother's death, get her to commit perjury, and slander herself in the
process. The moral order which the Duke seeks to establish is undercut at
every turn by the Duke's actions in attempting to bring it about. James
actions in the matter of Cobham, Markham and Grey also had their price,
mainly born by the convicted men and their families, who were put through
three more days of agony to assure the appropriate response on the scaffold
at Winchester. But the state also paid a price, for in making the theatrics of
trial so obvious, James may have rendered them all the more unconvincing.
As the scrivener of Richard III comments, "Who is so gross/That cannot see
this palpable device?" (111. iv. lO-l l) The Duke ends Measure for Measure
with a promise to tell how he has brought about the amazing trial of Act V:
"So, bring us to our palace, where we'll show/What yet's behind, that's meet
you all should know." At the time when Markham ascended the scaffold at
Winchester, James, in court at Wilton, called together his Privy Councillors
and favorite courtiers and explained in great detail how he had brought
about the pardons of Markham, Grey and Cobham, and how he had
commuted the death sentence for Raleigh. It was as difficult for James to
leave the glow of his production as it was for the previously shy Duke
Vincentio to leave his. Thus, theatricality enters the blood of the sovereign

and through that, the body politic.

239

DUE)

In The Political Unconscious Frederic Jameson summarizes his project

 

as an exploration of a proposition suggested by Levi-Strauss's work. That
proposition is: "all cultural artifacts are to be read as symbolic resolutions of
real political and social contradictions." ”5 In application to dramatic
representations of trial, this proposition is doubly potent, since trials
themselves are attempts to resolve real social and political contradictions.
One only has to leaf briefly through a book on the constitutional law of the
United States to see how our society generates contradiction and how the
legal system attempts to generate resolution. Is a particular newspaper
article "including military operations and secret diplomatic negotiations" of
the United States in Indochina a violation of national security or is it an
utterance privileged by the first amendment, protecting the public's right to
know? (New York Times Co. v. United Stataa; United States v. Washington
M 403 US. 713 (1971)) Is there a right to privacy and does it conflict
with a right to life? (Roe v. Wade 410 U. S. 1 I3 (1973)) Does the right to

 

free speech require a university to make its facilities available to a student
prayer group despite first amendment provisions requiring the separation of

church and state? (Widmar v. Vincent 454 U. S. 263 (1981)) All of these

 

cases explore the limitations of rights, such as freedom of speech, freedom of
religion, which we tend to think of as absolute and non-negotiable, in much
the same way that Angelo thinks of Justice and Isabella of Mercy as absolute
and non-negotiable. Yet, when two "absolute" principles collide, some
accomodation has to be made. I have cited these specific controversies as
examples, but the mere existence of a legal system implies that fundamental

and potentially lethal conflicts and contradictions are at the base of any

 

society. In Violence and the Sacred Rene Girard gives a most cogent

240

account of what these subterranean forces are, and how they work. The

problem, according to Girard, is that desire is mimetic:

Once his basic needs are satisfied (indeed, sometimes even
before), man is subject to intense desires, though he may not
know precisely for what. The reason is that he desires being,
something he himself lacks and which some other person seems
to possess. The subject thus looks to that other person to inform
him of what he should desire in order to acquire that being. If
the model, who is apparently already endowed with superior
being, desires some object, that object must surely be capable of
conferring an even greater plenitude of being. It is not through
words, therefore, but by the example of his own desire that the
model conveys to the subject the supreme desireability of the
object.

We find ourselves reverting to an ancient notion --
mimesis -- whose conflictual implications have always been
misunderstood. We must understand that desire itself is
essentially mimetic, directed toward an object desired by the
model.1 1

Thus begins the quest for status, power, material possessions, far in
excess of what one needs for survival, which in turn leads to the pattern of
competition, conflict, murder, and blood feud which characterizes the heroic
society of early Europe, as set forth, for instance, in epics like Niallfiaga,
Retaliation continues in the blood feud until a society is either destroyed or
finds some way to stop the feud. The sacrifice of a scapegoat is one way in
which primitive societies stop or at least control the feud;117 another is the
erection of a legal system which, in its punishment of criminals, does not
entirely abandon the rite of sacrifice. The objective of these early legal
systems is not so much to do justice, but to preserve society from utter
destruction. If the payment of mils; can appease the parties“ sense of

injured honor and stop the progression of a blood feud, it has served its

241

purpose, without regard to whether murders are punished or the exact value
of stolen property recovered. Legal systems may grow to any degree of
complexity, but at bottom, they are simply ways of controlling the energy of
mimetic desire, of resolving the tensions and contradictions that threaten to
wreck society.

When a legal system fails to perform this function, the result is akin to
removing the control rods from the core of a nuclear reactor. This is the
process that Shakespeare describes in 2 Henry VI. The object of mimetic
desire in that play is, of course, the crown, possessed by Henry and coveted
by York, Suffolk, Somerset, Margaret, and Beaufort. The growing
manipulation of justice for the benefit of local warlords such as York and
Suffolk, the political use of the courts, and the execution of Duke Humphrey,
the last exponent of the rule of law, removes the last stop against a blood
feud. "Equity is exiled," and the houses of York and Lancaster fight an on
again, off again war for half a century. The Tudor restoration of order, as I
have argued in the introduction, is, in the absolute sense, a myth. The Tudor
regime was marked from the beginning by aristocratic ambition, popular
rebellion and resistance, and the threat that a York or a Mortimer, a Perkin
Warbeck or a Lambert Simnel, would assert a superior claim to the throne.
Yet, in comparison to the fifteenth century, the Tudor restoration of order
was a fact. Particularly under the administration of Thomas Cromwell, the
English were able to establish a bureaucracy, a legal system, and more
profoundly, an attitude toward the rule of law, that kept the lid on a boiling
political pot for a remarkably long period of time.

Shakespearean drama, as Louis Adrian Montrose contends,118
provided its audiences with an opportunity to imaginatively confront the

real social and political challenges of their age, and the trial scene, by its

242

very nature, made these contradictions explicit by embodying them in a
dispute between two contending parties. In the particularized instance of
interpreting a bond, one character could "stand for law," and the other for
mercy; one for a mechanical and efficient ad ministration of law, and another
for a less predictable and efficient application of the "spirit" of the law.
Confronted with these oppositions, the audience symbolically participated in
the resolution of the trial, and in the process, modified its own attitudes
about the proper relationship of justice and mercy, efficiency and fairness.
As I have tried to demonstrate in my treatment of 2 Henry VI. this dramatic
confrontation with contradiction did not necessarily result in a symbolic
resolution. The Thump v. Horner trial and the Cade Rebellion episode raise
issues which I believe are not only unresolved by the play, but in Tudor
society never were resolved. Frederic Jameson's tendency is to relegate
these unresolved contradictions to the realm of "the political unconscious";
the contradictions continue to exist as traces, cryptic textual markings on
the literary artifact which neither audiences nor authors were aware of at
the time, but which twentieth-century literary archeologists can decipher.
Yet, given the multiplicity of interpretive languages available to Shakespeare
and his audiences -- languages of Calvinist and Catholic resistance theory,
languages of popular revolution contained in documents such as The Articles
of the Commons of Kent, the language of Common Law theory on the
limitation of monarchical power, and the language of fear mainfested in
personal letters and conduct books which advised their audiences to trust no
one and to keep their mouths shut -- there is little reason to believe that the
Elizabethans were less sophisticated than we in interpreting Shakespeare's
plays or in recognizing their implications. I do not believe that any

interpretation I have suggested in this dissertation is one which an

243

Elizabethan audience would have been linguistically or philosophically
unequipped to obtain. Neither do I believe that they were less sophisticated

theoretically than we are. In The Merchant of Venice the fate of Lorenzo's

 

dinner request to Launcelot Gobbo demonstrates a recognition of the
arbitrary relation of signifier and signified -- and of the playful
opportunities that arbitrariness creates -- more than 300 years before de
Saussure, Derrida, or Barthes made their discoveries. And of course, that
episode is but one example of Elizabethan appreciation that "a tricksy word"
(Merchant of Venice. 111. v. 64) can be attached to one signified and then the
next -- and then the next.

The history play as a genre, provides less ground for the symbolic
resolution of social contradictions than do comedy or tragedy and Law
_fl, as one of the middle plays in a tetralogy of histories, is not positioned to
bring about resolution. One might expect fuller resolution in Measure for
Measure and The Merchant of Venice, but at most, these plays yield only a
partial resolution of the contradictions which generate the central dramatic
conflict. Both of these comedies are about the preservation of legal systems.
The system of Vienna is being destroyed first through neglect and then
through a merciless revival of laws that have slept "for nineteen zodiacs."
The system of Venice is in danger of embarrassment because, in the case of
Antonio, it threatens to produce an absurd and barbarous result. Even
assuming that by the end of the play, these systems have been preserved or
strengthened (and this is a very debatable assumption) the very affirmation
of law implies the continuing existence of problems to be dealt with, for legal
systems exist mainly to keep a lid on the potentially destructive boilings of

mimetic desire. The Venetians still have their slaves and their Jews to spit

 

upon. At the end of Measure for Measure Vienna gets two, perhaps three,

244

problematic marriages and a Duke who still has not demonstrated a
willingness to punish offenders.

The comedies pose the dilemma which any legal system faces when it
struggles to achieve predictability through the uniform application of rules.
On the one hand, predictability is absolutely necessary in a complex society
where people make decisions based on the assumption that law will be
interpreted and applied the same way tomorrow as it was yesterday. Also,
if judges do not adhere to established principles, then there is no restraint on
judicial power. The principle of stare decisis which prevents judges from
ignoring precedents is the major legal obstacle which prevents individual
judges from exercising tyrannical power. On the other hand, as Oliver
Wendell Holmes noted, general principles don't decide concrete cases. And
by this he meant that no set of general principles would ever be devised by
which all cases could be judged fairly, for there would always arise some
unanticipated situation to which application of the rules would yield an
absurd result. Mark Kelman describes the problem as it continues to exist in
the current debate over whether a legal system should be constructed of

"rules" or more flexible "standards" (i.e., general policy statements) :

Rules are bad because they are underinclusive as to
purpose, overinclusive as to purpose, or both. Any age of
majority (for voting, contract, sexual consent) obviously is
both under- and overinclusive as to purpose; some people
below the age will be as capable and mature as the
typical adult; some above the age will still be immature
and incapable. Section ll9 of the Internal Revenue Code
is likewise both: some people required to live on an
employer's premises don't radically devalue the receipt
of these lodgings; some pople who live near but not on
the premises or feel constrained, though not contractually
bound, to live on the premises will value these premises

245

far less than their market price. Rulelike definitions of
attempt -- which allow the actor to go unpunished until
he has taken the last possible step in his control -- or
contract norms that leave a party unbound until there
has been a mirror-image acceptance to his initial offer
are predominanlty underinclusive, though with some
strain one might see their overinclusive aspects as well,
for each fails to impose legal consequences on parties
whom we might substantively wish faced such
consequences. . . Since standards are simply restatements
of purpose, they cannot, in theory, be under- or
overinclusive as to purpose, though of course they may
be applied in a way that fails to meet the decision
maker's purposes.

Standards are bad because they are subject to
arbitary and/or prejudiced enforcement. The unguided
death penalty standard (which Furman ostensibly
rejected but to which we have more or less returned) is
arguably subject to both sorts of critique; it is probably
arbitrarily enforced (in the sense that few claim to
discern morally lucid patterns to death sentences) and
probably prejudicially enforced (at least in discounting
the value of protecting black victims, though probably
not in executing disproportionate numbers of black
defendants, except when rape was a capital crime). _
Rules, of course, are designed to permit little discretion;
they ensure that people will perceive that they are
treated uniformly, even if the dimension along which
they have been treated uniformly strikes them as
insignificant. . . . Standards are bad because they give
people no clear warning about the consequences of their
behavior. This leads both to the unfairness we associate
with surprise and to the inefficiency we would expect
when private parties are unable to plan.119 [underlining
added]

In both Measure for Measupe and The Merchant of Eepm , the
heroine urges the legal application of a standard (love) in place of the

application of a rule (against fornication or in favor of literal interpretation

246

of contracts). The attractiveness of applying the standard is that it allows
relatively innocent defendants, like Claudio and Antonio, to be spared. But
the danger of merely relying on "love," or other broad standards, is that in
the Christian courts of Venice, "love" may turn out to mean that Jews always
lose their cases, or that in Vienna even unrepentant murders go free. The
abstract juridical question the comedies present is how and whether a
balance can be achieved between the contradictory strengths of legal rules
and standards, and neither play oversimplifies the problem. Vienna is in
danger because the laws have not been enforced, and desire threatens to
bring about anarchy. In Venice, the very rigidity with which the law is
enforced threatens the legitimacy of the system when Antonio stands to be
executed. The plays demonstrate that society, and the law which makes
society possible, depend on the unreliable human capacity to enforce the
laws and maintain a precarious balance between rules of justice and
standards of mercy. It is a balance which can never be captured and fixed
by the enactment of written statutes, for the statutes can be ignored, or
applied with such spiritless rigor and rigidity that the law is delegitimated
and the way prepared for revolution. And the will to keepthe balance can
be lost. What happens after Portia returns to Belmont and Duke Vincentio
returns to his palace? Do the Venetians treat Jews better? Do they free
their slaves? Are the old days of lawlessness over in Vienna? The
constraints of portraying reality, which one would normally associate with a
history such as 2 Henry VI, cling to the endings of the comedies. Even at the
end of The Merchant of Venice and Measure for Measure Vienna and Venice
are still in danger for the breach of law. It is a danger which in
Shakespeare's plays, and in the world outside the theater, can never be

completely resolved.

247
Notes

Introduction

1 Sir Thomas Elyot, The Boke Named The Gouernour ed. Henry
Herbert Stephen Croft (New York: Burt Franklin, 1967) 25.

 

2 Sir Thomas Smith, De Republica Anglorum (Menston, England: The
Scholar Press Ltd., 1970) 47.

3 Sir Thomas Smith, 47-8.

4 While at the Folger Shakespeare Library participating in Professor
Linda Levy Peck's seminar, "Kings, Courtiers and Judges, Political Thought in
Early Jacobean England," Professor Peck and I found that we had both begun
the studies we were working on by examining the metaphor of the king as
"fountain." Professor Peck was examining the metaphor in its application to
the King as a source or fountain of bounty, i. e., patronage.

5 William Hughes, "The Diversity of the Courts and Their Jurisdictions,"
The Mirrour of Iustices (1903; New York: August M. Kelley, I968) 291.

6 Francis Bacon, E_SS_EY§ (Harmondsworth, England: Penguin Books,
Ltd. 1985) 222-225.

7 Sir Robert Phelips, in Wallace Notestein, et al., Commons Debates
L61; 7 vols. (New Haven: Yale University Press, 1935) 2: 239.

8 Francis Bacon, The Letters and the Life of Francis Bacon, ed. James
Spedding, 7 vols. (London: Longmans, Green, Reader and Dyer, 1872) 6: 303.

9 William Lambarde, Archeion, or A Discourse upon the High Courts of
Justice in England, eds. Charles H. Mcllwain and Paul L. Ward (Cambridge,
Mass: Harvard University Press, 1957) 66.

10 William Lambarde, 141-2.

11 Sir Walter Raleigh, The History of the World (London: G. Latham a

 

248

R. Young, 1634) 153.

12 J. A. Sharpe, Crime in Early Modern England 1550-1750 (London:
Longman, 1984); John Brewer and John Styles, eds., An Ungovernable People:
The English and Their Law in the Seventeenth and Eighteenth Centuries
(London: Hutchinson University Library, 1980); Anthony Fletcher and John
Stevenson, eds., Order and Disorder in Early Mogern Englana (Cambridge,
England: Cambridge University Press, 1985); ,l. S. Cockburn, A History of
English Assizes. 1558-1714 (Cambridge, England: Cambridge University
Press, 1972); E. P. Thompson, Whigs and Hunters: The Oring of Lhe Black Act
(London: Penguin Books Ltd., 1975).

 

13 Fletcher and Stevenson, 15.

14 Brewer and Styles, 13-14.

15 Bryce Lyon, A Constitptional and Legal History of Meaieval
13mm (New York: W. W. Norton & Co., 1980) 322.

16 Rapheal Holinshed, Chronicles (London: J. Johnson, 1807-8).

17 Holinshed, Chronicles, supra; William Camden, Annales, 3rd ed.,

 

(London: Benj. Fisher, 1635); John Stow, The Chronicles of England (London:
Richard Tottle and Harry Binneman, 1580); Edward Hall, The Union of the
Two Noble and Illustre_Fa_aielies of Lancaster 6: York (London: J. Johnson, et
al., 1809).

18 Arthur Freeman, introduction, Henry VL Pg Two (New York: New
American Library, 1986) xxxii. Freeman summarizes the political constraints
on Shakespeare and his contemporaries, but despite his caution in
attributing conservative political views to Shakespeare, I do not believe that

he is cautious enough:

Episodes like Cade’s rebellion and the rising of the masses in Sit;
Thomas More . . . were composed under strict scrutiny, and

249

carefully reviewed by the Master of the Revels or his staff
before production could be permitted. Change a scene, omit a
scene, and shorten an address, "and not otherwise, at your own
peril," warns Edmund Tilney in his holograph comment extant
on the manuscript of Sir Thomas More: the recommendations of
the authorities are specific, censorious, and peremptory.

Nothing in Shakespeare's career or works suggests that
he might find conscientious compliance with such strictures
difficult. In fact the implicit conservatism of his political
attitudes, so far as we can isolate them (a dangerous attempt,
when speech and character must sometimes be separated).
made him ideal for the job of rewriting a questioned passage of
More and evidently quite at ease in the matter of Cade.

 

The problem with Freeman's statement is that it commits the formal
fallacy known as the argumentum ad ignoratium -- the argument from
ignorance. Lack of evidence to the contrary of a position is not evidence of
that position, and lack of evidence to the contrary that Shakespeare was a
conservative, in the dangerous environment that Freeman fairly describes,
certainly does not support the implication that Shakespeare m a
conservative. (And of course, one can question whether the ahistorical label
"conservative" has any meaning in application to the politics of Tudor or
Stuart England.) There is, however, evidence of continual concern, in
Shakespeare's drama, with the fairness of trials. Why does Shakespeare
come back to this issue again and again? It seems reasonable to infer that
the issue interested him and his audience and that the reason for that
interest stemmed from broader social concerns.

19 Buchanan Sharp, In Contempt of All Authority: Rural Artisans and
Riot in the West of England,1586-1660 (Berkeley: University of California
Press, 1980) 50-3.

20 E. M. W. Tillyard, The Elizabethan Worlg Pictag (New York:
Vintage Books, 196I)vii.

 

250

21 Jonathan Dollimore, "Shakespeare, Cultural Materialism, and the
New Historicism," Political Shakespeare: New Essays in Cultural Materialism,
eds. Jonathan Dollimore and Alan Sinfield (Ithaca: Cornell University Press,
1985) 5.

22 Stephen Greenblatt, introduction, The Power pf Forms in the
English Renaissance (Norman, Oklahoma: Pilgrim Books, 1982) 5.

23 E. M. W. Tillyard, §l_i_a_kespeare's History M (London: Chatto &
Windus, 1964) 4.

24 Fletcher and Stevenson, 2.

25 Dollimore, 6.

26 Lawrence Stone, The Family, Sex and Marriage in England
1500-1800 (London: Weidenfeld and Nicholson, 1977) 653-4, as quoted in
Dollimore, 5.

27 J. P. Sommerville, Politics and Ideolpgy in England. 1603-1640
(New York and London: Longman, 1986) 9.

28 Penry Williams, The Tagor Rgime (Oxford: The Clarendon Press,
1979) 140.

29 Williams, 140.

30 Williams, 140-1.

31 John Pound, Poverty and Vagranpy in Tudor England (London and
New York: Longman, 1971) 25.

32 Pound, 26.

33 Buchanan Sharp, 10.

34 Margaret Spufford, "Puritanism and Social Control," in Fletcher and
Stevenson, 41 -2.

35 J. A. Sharpe explains the concept of "social crime" as follows:

 

251

Awareness of the existence of popular notions of legality and
legitimacy, at odds with those of officialdom, has given rise to
the concept of 'social crime'. Crime, according to the classic
formulation of this concept, can be regarded as social when it
represents 'a conscious, almost a political, challenge to the
prevailing social and political order and its values'. It occurs
when there exist conflicting sets of official and unofficial
interpretations of the legal system, when acts of law-breaking
contain clear elements of social protest, or when such acts are
firmly connected to the development of social and political
unrest. (122)

36 John Bellamy, The Tflor Lawjof Treason: An Introduction
(London: Routledge & Kegan Paul, 1979) 12.

37 Bellamy, 48.

33 Lacey Baldwin Smith, Trejason in Tudor England: Politics and
Paranoia (London: Jonathan Cape, 1986) l.

39 Bellamy, 93-4.

40 Bellamy, 181.

4‘ Bellamy, 171.

42 Bellamy, 161.

43 Bellamy, I42.

44 R. Persons, "The Jesuits Memorial for the Intended Reformation of
England under their First Popish Prince," (London, 1690) as quoted in
Bellamy, 142. .

45 Ann Jennalie Cook, The Privileged Playgoers of Shakespeare's
London. L576-l642 (Princeton, N. J.: Princeton University Press, 1981) ix.

46 Cook, ix.

47 For example, Mark Kelman, A Guide to Critical Lagal Studies
(Cambridge, Mass: Harvard University Press, 1987); Roberto Mangabeira
Unger, The Critical Legal Studies Movement (Cambridge, Mass: Harvard

252

University Press, 1983); Duncan Kennedy, "The Structure of Blackstone's
Commentaries, " 28 Buffalo Law Review 205 ( 1979).
43 "Trial," Black's Law Dictionary. 1979 ed.

Chapter 1

1 E. M. W. Tillyard, Shakespeare's Hiatory Play; (London: Chatto &
Windus, 1964).

2 Lily B. Campbell, Shakespeare's Histories: Mirrors of Elizabethan
135mg (San Marino, California: The Huntington Library, 1965).

3 J. P. Brockbank, "The Frame of Disorder -- Henry VI," Shakespeare,
The Histories: A Collection of Essays, ed. Eugene M. Waith (Englewood Cliffs,
N. J.: Prentice-Hall, Inc., 1965).

4 M. M. Reese, The Cease of Majesty: A Stady of Sha_kespe_are‘s History
film (New York: St. Martin's Press, 1961).

5 David Riggs, Shakespeare's Heroiaal Histories: Hegy VI LQQJE

Literary Tradition (Cambridge, Mass: Harvard University Press, 1971).

 

6 See Jonathan Dollimore and Alan Sinfield, eds, Political Shakespeare:
New Essays in Cultural Materialism (Ithaca: Cornell University Press, 1985);
John Drakakis, Alternative Shakespeare‘s (London: Methuen, 1985).

7 David Norbrook, "Macbeth and Historiography," The Politics 01
Discoarse: The Literature and History of Seventeenth-Century England, eds.

 

Kevin Sharpe and Steven Zwicker (Berkeley: University of California Press,
1987) 78-9.

8 J. P. Sommerville, Politics is Ideolpgy in England 1605-1640
(London: Longman, 1986) 88.

9 Thomas Smith, De Reppblica Anglorum, The Tpaor Constitution, ed.

 

253

G. R. Elton, 2nd ed. (Cambridge, England: Cambridge University Press, 1982)
1 4.

10 Sommerville, 90.

ll Sommerville, 90.

12 John Aylmer, An Harborowe for Faithful and True Subjects against

 

the Late Blown Blast concerning of Government of Women. paraphrased by
G. R. Elton, The Tpggr Constitation: Documents and Commentary, 2nd ed.
(Cambridge, England: Cambridge University Press, 1982) 16.

13 Sommerville, 103.

14 See George W. Keeton, Shakespeare's Legal and Political
Background (London: Sir Isaac Pitman 8: Sons, Ltd., 1967) and A. Wigf all
Green, The Inns of Court and Early English Drama (New Haven: Yale
University Press, 1931).

15 Lily B. Campbell, 214-5.

16 William Camden, Annales (London: H. Lowne for B. Fisher, 1625) l:

 

14.

17 John Bartlett, Barlett's Familiaa Quotations, ed. Emily Orison Beck,
15th ed. (Boston: Little, Brown 8: Company, 1980) 181.

18 This phrase is Linda Levy Peck‘s, from her lectures at the 1988
Folger Shakespeare Library seminar, "Kings Courtiers and Judges: Early
Jacobean Political Thought."

19 The Church of England. "Sermon Against Wilfull Rebellion,"
Certaine Sermons or Homilies Appointed to be Read in Churches In the Time
of Queen Elizabeth I (1547- L571) (1623; Gainesville, Florida: Scholars'
Facsimilies 8t Reprints, 1968) 280.

20 Sommerville, ll.

21 Sommerville, 10.

 

254

22 See David Norbrook, "Macbeth and the Politics of Historiography,"

Eplitics of Discourse: The Literature and Histpgg of Seventeenth-Century
England. eds. Kevin Sharpe and Steven Zwicker (Berkeley: University of

California Press, 1987) 21 -34.

23 James 1., Basilikon Doron The Political Works of James 1, ed.
Charles Mcllwain (Cambridge, Mass: Harvard University Press, 1918) 40.

 

2“ Since it is unlikely that Shakespeare's audiences could have been
exposed to performances based on modern, conflated editions of the plays, I
have referred in all instanms to Quarto (in this case, 01 of 1594, rather than
02 of 1600) and Folio versions of Shakespeare's playscript. References to
Quarto are indicated by quire letter, page number, and whether the passage
is on the front (recto -- "r") or back (verso -- "v") of that particular page.
References to Folio are indicated by genre (H, for History) and by the page
number within that genre section of the Folio.

For Quarto, I am using The First Part of the Contention of the Two
Fampps Hoursesaqf Yorke at Lancaster (London: T. Millington, 1594; Malone
Society Reprints, 1985).

For Folio, 1 am using Mr. William Shakespeares Comedies, Histories 8t
Tragedies (London: 1623; Yale University Press, 1954).

25 The theory that divine retribution especially attached to rebels was
drummed into the populace through the official Elizabethan sermon book,
from which the clergy was required to read every Sunday and Holy Day.

The 1547 version of this book, first published under Edward VI, suppressed
under Mary, and then revived under Elizabeth, contained Cranmer's'sermon
"An Exhortation to Obedience." It was nine pages long and divided into three
parts for readings at successive services. The 1571 version, entitled "An

Homily Against Disobedience and Wilfull Rebellion," published in response to

255

the Northern Rebellion of 1569, was a forty-six page expansion of the
previous sermon, divided into five parts, with a prayer following each,
petitioning God to keep the realm safe from rebellion. One of the most
significant themes of these sermons was that the punishment of traitors
would not be delayed to an afterlife: "For treason will not bee hid, treason
will out at length. God will haue that most detestable vice both opened and
punished, for that it is so directly against his ordinance, and against his high
principall judge and anoynted in earth." (Part Three of "An Exhortation
concerning Good Order and Obedience," p. 69.) In 2 Henry VI (111. iii.)
Cardinal Beaufort becomes a standard Elizabethan example for God's
punishment of traitors on earth.

In G. M. Trevelyan, E_ngl__and Unaer the Stugta (New York: 6. Putnam's
Sons, 1946) 49, Trevelyan argues for the virtual unanimity of belief in

divine retribution:

From the time Marlowe's death in a tavern brawl had
illustrated God's judgment on the impious, till the rise of 'Mr
Hobbes the Atheist' to notoriety, there was scarcely one known
sceptic in the island, [and although medieval belief in miracles
had mainly passed away] the Puritan believed in the secret
management of human affairs by Providence, in ways that the
godless might lightly attribute to chance. Angels did not visit
his house, but he recognised a judgment if he fell off his horse,
and a 'mercy' if his ship returned safe from Ternate.

.Anthony Fletcher and John Stevenson, in Order and Disorder in Early Modern
M. p. 23 state the opposite view: "The mass of the people were never
persuaded to see life's travails in terms of the workings of God's providence
or to accept the link between sin and misfortune that was so central to

protestant theology."

256

26 Rapheal Holinshed, Chronicles 3 vols. (London: J. Johnson, 1807-8)
3: 218.
27 Rene Girard, Violence and the Sacred (Baltimore: Johns Hopkins

 

University Press, 1972); the entire book explores the concept of "mimetic
desire" and the violence it generates.

28 R. L. Storey, The End of the House of Lancaster (London: Barrie and
Rockcliff, 1966) 8.

29 Holinshed, 222-3; also in John Stow, The Chronicles of England
(London; Richard Tottle and Harry Binneman, 1580) 641-2.

30 Holinshed, 221.

31 Stow, 640.

32 Karl Zeumer, ed., Formulae Merowingici et Karolini aevi (Hanover,

 

Germany, 1886) 700-1; as quoted by Robert Bartlett, Trial by Fire and
,W_ater: The Medieval judicial Ordeal (Oxford: Clarendon Press, 1986) l.

33 Bartlett, 121.

3“ Bartlett, 118.

35 Most current historians caution against using the word "class" in
reference to the Tudor/Stuart social structure. I agree with them. and will
use the word only to refer to a "category" of people which, for whatever
reason, can be thought of as having a group identity or cohesiveness.

36 Steven R. Smith, "The London Apprentices as Seventeenth-Century
Adolescents," Past and Present 61 (I973): 149.

37 Smith, 151.

38 Anthony Fletcher and John Stevenson, Order and Disorder in Early
Modern England (Cambridge, England: Cambridge University Press, 1985) 2.

39 Smith lists the following (p. 151-2):

257

William Vaughn's The Golden Grove Lewis Bayly's Diagram;
of Piety, William Whately's A Bride-Bush, William Gouge's 9L
Domestical Duties, Thomas Carter's Christian Commonwealth,
John Dod's and Robert Cleaver's A Godly Form of Household
Government. William Ames's Conscience with ahe Power a_n_d_
Cases Thereof, Thomas Hilder's Conjugal Counsel, Robert
Abbot's A Christian Family Builded by God, and Richard
Allestree's The Whole Duty of Man.

 

40 Smith. 152.

41 Smith, 150.

42 Smith, 157.

43 Smith, 156.

44 Fletcher and Stevenson, 33.

‘5 Penry Williams, The Tm Regime; (Oxford: Clarendon Press, 1979)
328-9.

46 Lacey Baldwin Smith, Trgsaon in Tador England, Politics and
Paranoia (London: Jonathan Cape, 1986) 44.

47 John Stow, The Annales of England (London, 1615) 385.

48 Edward Hall, The Union of the Two Noble and Illustre Families of
Lancaster and Yorke (London: R. Graftoni, 1548), quoted in Geoffrey
Bullough, Narrative and Dramatic Sources of Shakespeare (London:
Routledge and Kegan Paul, 1966) 3: 105.

49 Rafeal Holinshed, Chronicles of England, Scotland and Ireland. 6
vols. (London: J. Johnson, 1808) 3: 210. 1

50 John Stow, The Annales of England (London, 1615) 385.

51 Ann Jennalie Cook, The Privileged Playgoers of Shakgsmare‘s
London, 1572-1642 (Princeton, N. J.: Princeton University Press, 1981).

52 Joel Altman, The Tadasr Play of Mind (Berkeley: University of
California Press, 1978) 3.

258

53 John Henry Wig more, quoted in J. W. Ehrlich, The Art of
Cross-Examination (New York: G. Putnam's Sons, 1970) 96. ‘

54 Quintillian, Institution Oratio, ed. H. E. Butler (New York: G. P.
Putnam's Sons, 1921) 183.

55 Abraham Fraunce, The Lgiers Logike, Exemplifying the Praacepts
Mike by the Practise of the Common Lawe (London: W. How, 1588) 120.

56 John Foxe, Foxe's Book of Martyrs, quoted by Arthur Freeman, ed.,
Henry VL Part 2 (New York: Signet, 1967) 189.

57 See Mark Kelman, A Guide to Critical Legal Studies (Cambridge,
Mass: Harvard University Press, 1987) 242-268 on the various ways law is
used to preserve class distinctions.

58 See Ralph A. Griffiths, "The Trial of Eleanor Cobham: An Episode in
the Fall of Duke Humphrey of Gloucester," Bulletin of the Iohn Rylands
than 51 (1969) 381-99.

59 John Stow, The Annales or Generall Chronicle of England (London:
1615) 381: "There was taken also Margery Gurdemaine a witch of Eye
besides Westminster, whose sorcerie and witchcrafte the said Elianor hadde
long time used, and by her medicines & drinkes enforced the Duke of
Glocester to loue her, and after to wedde her. . . 1

60 [Pseudo] Cicero, Ad Herrennium, ed. Harry Caplan (Cambridge,
Mass: Harvard University Press, 1981) 63.

61 [Pseudo] Cicero, 65.

62 Thomas Smith, De Republica Anglorum, ed. Mary Dewar
(Cambridge, England: Cambridge University Press, 1982) 53.

63 For example, consider Artegall's disbursement of the crowd and
killing of the giant in The Faerie Queene, Book V, Canto II, 30-54.

64 See C. L. Barber, Shakespeare‘s Festive Comedy (Cleveland: World

259
Publishing Co., 1963) 14:

The scenes of the Jack Cade rebellion . . . are an astonishingly
consistent expression of anarchy by clowning: the popular rising
is presented throughout as a saturnalia, ignorantly undertaken
in earnest; Cade’s motto is: “then are we in order when we are
most out of order" (1V. iii. 199). In the early plays, the clown is
usually represented as oblivious of what his burlesque implies.
When he becomes the court fool, however, he can use his folly
as a stalking horse, and his wit can express directly the function
of his role as a dramatized commentary on the rest of the
action.

As Barber notes, Cade himself may be oblivious of how his clowning
comments on the main action. I would still argue, however, that Cade
performs the function of a stalking horse, his own foolishness mirroring the
foolishness of the nobles.

65 See Penry Williams, The Tddor Regime (Oxford: Clarendon Press,
l979)l62-3. J

66 For Rene Girard's definition of ”mimetic desire," see pp. 239-40 of
this dissertation.

67 Rodney Hilton, Bond Men Made Free: Medieval Peasant Move-
ments and the English Rising of 1381 (New York: Viking Press, 1973) 194-5.

63 Hilton, 226-7.

69 Robert Weimann, Shakespeare and the Popular Tradition in the
Ipaater: St1_ldies in the Social Dimension of Dramatic Form and Function, ed.,
Robert Schwartz (Baltimore: The Johns Hopkins University Press, 1978) 240.

70 Leah Marcus, The Unease of Topicality, unpublished MS.

71 For Weimann's core discussion of pm and 19511; see Weimann,
73-85.

72 Christopher Hill, The World Turned Upside Down (Harmondsworth,

 

260

England: Penguin Books, Ltd., 1985) 35.

73 Lawrence Stone, The Crisis of the Aristocrapy, 1558-1641 (Oxford:
Clarendon Press, 1965) 66-71.

74 Stone, 66-67.
75 Stone, 120:

During the long years of the Interregnum a number of royalists
looked back over the history of the previous half -century to try
to discover how it was that the institution of monarchy had
fallen into such disrepute. Without exception they all agreed in
laying great emphasis upon the sale of honours. . . .

. . . Gervase Holles thought 'that way of merchandise. . .
was one cause (and not the least) of [the] misfortunes . . . of our
last-martered King.’ Sir Edward Walker thought the same: 'It
may be doubted whether the dispensing of honours with so
liberal (I will not say unconsiderate) a hand, were not one of
the beginnings of general discontents, especially amongst
persons of great extraction.‘ The Marquis of Newcastle saw a
direct chain of causation. First, “so manye begerlye people
[were] made greate Lordes and Ladies in title thatt weare nott
able to keepe upp the dignetye off itt' that respect for the
peerage declined; and then, once 'Noble-men were pullde doune,
which is the foundation off monarkeye -- monarkeye scone
affter f ell'.

76 David Cressy, Literag and the Social Order: Reading and Writing in
Tudor and Stuart England (Cambridge, England: Cambridge University Press,

1980) 17.
77 Cressy, l.

 

78 Douglas Bush, The Renaissance and English Humanism (Toronto:
The University of Toronto Press, 1939) 65.
79 Hill, 36.

30 Set forth by Conrad Russell, The Caisis of Parliaments: English

261

History 1509-1660 (London: Oxford University Press, 1971) l.

81 Andrew S. Cairncross, ed., 2 Henry VI (London: Methuen, 1965)
125. See footnote 45 of on p. 125 of Cairncross edition.

82 Anthony Fletcher, Tudor Rebellions (London: Longmans, 1968)
110-11.

83 E. P. Thompson, Whigs and Hunters (New York: Pantheon Books,
1975) 259.

84 Thompson, 262-3.

85 For a definition of "ideal comedy," see Douglas Peterson, "Ile
Tempest and Ideal Comedy," Shakespearean Comedy, ed. Maurice Charney
(New York: New York Literary Forum, 1980): 99-110. Paraphrasing
Peterson:

Ideal comedy is persuasive rather than dissuasive. It is
devoted to the depiction and praise of exemplary instances of
virtue. Dangers to life, moreover, are not only common to its
action; they constitute the difficulties that must be overcome for
the action to end happily and are therefore definitive. They are
manifestations of the forces that in a fallen world pose a
constant threat to the well-being, and even the survival of its
inhabitants. The happy ending won through virtuous action is,
therefore, a celebration of the victory of Iif e over evil and its
wages which is possible for all men. . . .

Ideal comedy. . . is a drama of the ethically possible.
While acknowledging things as they are, it depicts things as
they can and ought to be. (p101-3)

 

262

Chapter Two

1 Geoffrey Bullough, ed., Narrative and Dramatic Sources of
Shakespeare 8 vols. (London: Routledge and Kegan Paul, 1961) 1: 446.

z Bullough, I, 445-514. See also Bernard Grebanier, The Tr1_lt_h Ahoy;
S_hy_loc_k (New York: Random House, 1962), which contains a good chapter on
the history of the pound of flesh story: ”This Bond is Forfeit: The Pound of
Flesh Story." pp 97-145-

3 Ralph Berry, Shakespeare's Comedies: Explorations in Form
(Princeton, N. J.: Princeton University Press, 1972) l l 1: "We can view the
play as a potentially subversive study of human relationships mediated by
money.”

4 For my purposes, the Quarto and Folio versions of The Merchant of
leaipe; are not significantly different. Therefore, I have used the edition of
The Merchant of Venice contained in Alfred Harbage, ed., _W_il_li_ana
Shakespeare, The Complete Worl_<_s_ (New York: Viking Press, 1969).

5 See Lawrence Stone, The Crisis of Aristocragg (Oxford: Clarendon
Press, 1965) 39-49, on the peerage's concept of honor.

6 Frank Kermode, "Some Themes in the Merchant of Venice"

 

Twentieth Century Intemretations of the "Merchangd Venice": A Colledti_op
of Critical Essays, ed. Sylvan Barnet (Englewood Cliffs, N. J.: Prentice-Hall,
Inc,l970)98.

For a somewhat divergent view see, Bernard Grebanier, The Truth
Abodt Shylddk (New York: Random House, 1962) 120. Grebanier argues,
that "Morocco's choice of the gold casket is neither a greedy one nor a
worldly one. It is based upon a thoroughly decent and romantic veneration

for Portia herself." Grebanier bases his argument on the following passage:

263

Is't like that lead contains her? -- "Twere damnation
To think so base a thought. It were too gross

To rib her cerecloth in the obscure grave.

Or shall I think in silver she's immur'd,

Being ten times undervalu'd to tried gold?

0 sinful thought! never so rich a gem

Was set in worse than gold. (11. vii. 49-55)

These lines indeed seem to be a proper allegorical association of gold with
the incomparable Portia. Morocco's interpretation is not unreasonable, nor
does it reflect a greedy personality. But the interpretation which Portia's
father exerts ("All that glisters is not gold . . .") is equally reasonable, which
confirms the arbitrary nature of merely literal interpretation. Morocco's
forgivable mistake is that he tries to associate a casket with Portia, when he
should be trying to associate caskets and inscriptions with the character of a
worthy M.

7 H. B. Charleton in Shakespearian Comedy (New York: The Macmillan
Co., 1938) 147-8.

8 There is also no doubt that the bond would be unenforceable for
reasons of public policy. One cannot enforce a contract to do an illegal act, i.
e. murder. See A. H. Marsh, History of the Court of Chancery and of the Rise
and Develonment of the Doctrines of Equity (Toronto: Carwell & Co.,
Publishers, 1890) for an analsis of how the bond would have been treated by

an English court of equity, p. l 16:

A very amusing and at the same time instructive report of an
appeal from the judgment of Portia in the action of Shylock v.
Antonio is to be found in 5 Albany Law [ournal 193, where it is
plainly shown that upon Common Law principles the judgment
of Portia is wrong in almost every particular, and that the bond
itself was void as being contrary to the policy of the law. But
even though the bond had been perfectly good and valid, Equity

 

264

would have afforded relief to the defendant upon the ground
that the bond was given as security for the payment of money,
and that in Equity the time named by such security for the
payment of the money is never of the essence of the contract,
and that payment of the amount secured, together with interest
and costs, if any, will operate as a satisfaction of the bond if
made or tendered at any time before final judgment in an
action.

I think that Marsh could be a little more charitable toward Portia, since the
third ground of her ruling implies that the contract in fact does violate a
statute, and is therefore void. Also, comparing the legal reasoning of
Shakespeare's plays with how the cases he proposes would actually be
decided has its limitations. These limitations are addressed by Lawrence
Danson, The Igrmonies df "The Merchant of Venice" (New Haven: Yale

University Press, 1978) 82-3:

It is a pedagogical truism that all drama involves conflict. Any
resolution therefore implies some judgment on the issues in the
conflict. But when a court of law stands at the center of the
drama, certain peculiarities may result. The abstract,
theoretical issues behind the fiction's particular conflict may
become more prominent than in other drama -- especially if, as
in The Merchant of Venice. the bare facts of the case are not in
dispute. Thus forensic drama may be a curious and often a
disturbing combination of the minutely and realistically
particular -- the legal intricacies, that is, of ma case -- and of
the universal. Such drama easily tends toward the didactic and
allegorical, for in any court of law the individual is judged
according to standards that pertain to all: in a sense, the One
inevitably stands for the Many. . . . In such plays we are asked
to judge not only the resolution of the particular issues in the
conflict, but the means by which that resolution is achieved and
the standards implied by those means. Forensic drama tends to
be a self -conscious drama, allowing us, through the metaphor of
the courtroom, to glimpse its own judgmental principles.

One may therefore applaud the following typical trumpet

265

blast by E. E. Stoll: "The juristic disquisitions of the Germans on
the issue [of legal procedure] in The Merchant of Venice are
among the most misguided and wasted of human exertions,"
without, however, agreeing with the statement it amplifies:
"Law in Shakespeare is, save for phrases and incidental matters
or what is taken out of the novel or chronicle he is dramatizing,
nothing but stage law." The dismissive "nothing but"
short-circuits the real question. Historical research into the
laws of contemporary England or Venice may indeed yield little
of value; but the nature of Shakespeare's "stage law" is not
something to be taken for granted. Precisely because this
"stage law" cannot be found codified in the statutes of any
realm it is of special interest to us; and at those points where
Shakespeare‘s stage courtroom fails to correspond to what we
know of the procedures of any other courtoom we must ask
why Shakespeare, especially in that notoriously litigious time,
has wrested his fiction away from historical verisimilitude.

The reason, I would speculate, that Shakespeare deviates from contemporary
law and procedure in The Merchant of Venice is so that reality does not
become an obstacle to exploring issues of real importance, such as the
relationship between Old Law and New, Justice and Mercy, Law and Equity.
By sharpening the distinctions between these ideas in the trial scene of Act
IV, Shakespeare is able to raise issues of fundamental importance about the
less sharply opposed (but significantly opposed) contemporary legal system's
of Law and Equity.

9 R. H. Tawney, Religion and the Rise of Capitalism: A Historical Study
(New York: Harcourt, Brace and Company, 1926) 39-40.

10 The Holy Bible, King |ames Version (Philadelphia National Bible
Press, 1958):

Deuteronomy 23: 19-20: "Thou shalt not lend upon usury to thy
brother; usury of money, usury of victuals, usury of any thing that is lent

upon usury: Unto a stranger thou mayest lend upon usury; but unto they

 

266

brother thou shalt not lend upon usury: that the Lord thy God may bless
thee in all that thou settest thine hand to in the land whither thou goest to
possess it."

Exodus 22: 25: "If thou lend money to any of my people that is poor
by thee, thou shalt not he to him as an usurer, neither shalt thou lay upon
him usury."

Leviticus 25: 35-7: "And if thy brother he waxen poor, and fallen in
decay with thee; then thou shalt relieve him: yea, though he be a stranger, or
a sojourner; that he may live with thee. Take thou no usury of him, or
increase: but fear thy God; that thy brother may live with thee. Thou shalt
not give him thy money upon usury, nor lend hm thy victuals for increase."

1 1 Tawney, Religdoraaad the Rise of Capitalism, 37.

12 R. H. Tawney, introduction, A Discodase Upon Um, by Thomas
Wilson (New York: Augustus Kelley, 1963) 130.

13 E. C. Pettet notes in "The Merchant of Venice and the Problem of

Usury," Twentieth Century Interpretations of the "Merchant of Venice": A

 

Collection of Qitiaaa Essaya, ed. Sylvan Barnet (Englewood Cliffs, N. J.:
Prentice-Hall, Inc, 1970) 101:

By the time Shakespeare was writing his plays the feudal
aristocracy had come to feel the full pinch of the century's
momentous economic developments. With wealth derived
mainly from the land and with their hands tied to some extent
by conservative modes of land tenure, members of this class
were finding it extremely difficult to adjust themselves to the
steep and continuous rise in prices and to the greatly increased
wealth of business classes.

R. H. Tawney, in his introduction to Wilson's A Discourse Upon Usury,

paints an even bleaker picture:

 

267

To the reader who looks at their [the aristocracy's] situation in
the light of cold figures, the surprising thing is that some of
them survived at all. For their debts were not seldom
overwhelming. Consider for example, the picture drawn in
some of the personal correspondence, mostly addressed to Lord
Burghley and Sir Robert Cecil, of the last twenty years of the
sixteenth century. The Duke of Norfolk owes £6,000 to £7,000;
the Earl of Huntingdon £20,000, the Earl of Essex between.
£22,000 and £23,000, Viscount Bindon £4,000, the Earl of
Leicester (it is reported) about £59,000, Sir Francis Willoughhy
(who had spent £80,000 in building Wollaton House) £21,000,
Sir Percieval Willoughhy £8,000, Sir Phillip Sidney over £6,000,
Lord Sandys £3,100, Sir H. Parke £4,600. . . . Lord Vaux of
Harrowden has been forced to pawn his parliament robes "to a
citizen where I have offered large interest," and subscribes
himself ”the unfortunatest Peer of parliament for poverty that
ever was." (pp. 32—3)

14 The Jews were officially banished from England by Edward the
Confessor in 1290 and were not officially readmitted into the country until
1655 under Cromwell. Grebanier, pp. 30- 1, addresses the issue of whether

there was a JewiSh population in England during the time of Shakespeare:

It has . . . been maintained that in the sixteenth century, after
the expulsion of the Jews from Spain and Portugal, a few Jews
filtered into England and there secretly founded a small colony.
On the other hand, we are told with equal authority: "In
Elizabethan and early Stuart England no unconverted Jews were
known to be living." Some modification of such a statement is
implicit in the insistence of other historians that when Jews
became converted it was only for the purpose of avoiding exile,
that secretly they practiced their own religion. It is not
important for our purposes to decide among these conflicting
claims. Allowing for the existence of some Jews in Elizabethan
England, either through secret immigration or under the
masquerade of pretended conversion to Christianity, the
number must have been insignificant. Officially the Jews were

 

 

268

not there. There is perhaps some point to the observation of

Holmes concerning their position in Shakespeare's day: "The

race had become unfamiliar and exotic"; it was therefore

possible "to believe anything of it without any particular

ill-feeling." His analogy is with the fashion for peopling early

twentieth-century popular novels with sinister Chinese villains,

without there having been any real prejudice against the

Chinese. The almost total (or actual) absence of Jews from

Shakespeare's England may indeed have resulted, as Cardozo 1
has impressively proved, in the word "Jew" being used loosely [
for anyone outside the pale of accepted respectability -- ‘
dissenters, foreigners, Christian usurers.

15 Grebanier, 45.

16 Tawney, Introduction to Wilson's A Discourse Upon Usury, pp.
16-70. ‘

17 mhl_e, Romans 8: 1-2: "There is therefore now no condemnation to
them which are in Christ Jesus, who walk not after the flesh, but after the
Spirit. For the law of the Spirit of life in Christ Jesus hath made me free
from the law of sin and death."

Romans 13: 8, 10: “Owe no man any thing, but to love one another: for
he that loveth another hath fulfilled the law. . . . Love worketh no ill to his
neighbor: therefore love is the fulfilling of the law."

Galatians 5: l, 14, 18: "Stand fast therefore in the liberty wherewith
Christ hath made us free, and he not entangled again with the yoke of
bondage. . . . for all the law is fulfilled in one word, even in this; Thou shalt
love thy neighbour as thyself. . . . If ye he led of the Spirit, ye are not under
the law."

18 Nevill Coghill, "The Theme of The Merchant of Venice" Igentieth

Century Interpretations of the "Merchant of Venice": A Collection of Critical
Essays, ed. Sylvan Barnet (Englewood Cliffs, N. J.: Prentice-Hall, Inc, 1970).

 

269

l 10: "The play can be seen as a presentation of the theme of Justice and
Mercy, of the Old Law and the New."

19 New Testament, New International Version (Grand Rapids:
Zondervan, 1973).

20 Tawney, Introduction to Wilson's A Discourse Upon Uatay, 164.

21 Tawney, Introduction to Wilson's A Discourse Upon Usury, 170.

22 Zera S. Fink, Classical Repdblica_na (Evanston: Northwestern
University Press, 1 945) 43; see also 11 Pecorone, in John Russell Brown, ed.,
The Merchant df Venice (London: Methuen, 1984)l49: “Since Venice was a
place where the law was enforced, and the Jew had his right fully and
publicly, no one dared to speak against him, they could only entreat."

23 Jonathan Goldberg, |ames I and the Politics of Literature: |pnson,
Shakespeare, Donne, and Their Contemporaries (Baltimore: Johns Hopkins
University Press, 1983) 76-7.

24 See for example, Danson, 85.

25 W. S. Holdsworth, A History of English Law (London: Methuen,
1924) 281. For a good summary of the problems of common law '
administrative and legal machinery, see Holdsworth, pp. 278-336.

25 Holdsworth, 286.

26 John Dodderidge, "Notes on a Method for the Study and Practice of
the Common Law," Folger Library MS. V. b. 184, ca. 1630, p. 45 recto.

27 W. Moelwyn Merchant, introduction, The Merchant of Venice
(Harmondsworth, England: Penguin Books, Ltd., 1967) 24.

23 See Moody, A. 1)., "An Ironic Comedy," Shakespeare, 'Ipe Merchant
of Venice by A. D. Moody (London: Edward Arnold Publishers Ltd., 1964)
9-15.

270

Chapter Three

1 Nicolo Machiavelli, The Prince, trans. Luigi Ricci; rev. E. R. P. Vincent
(New York: The New American Library, Inc., 1952) 112-3.

2 James I. Basilikon Doron The Political Works of |ames I,
introduction, Charles Mcllwain (Cambridge, Mass: Harvard University Press,
1918) 43. '

3 My theoretical starting point is furnished, to a great extent, by Louis

 

A. Montrose, "The Purpose of Playing: Reflections on A Shakespearean
Anthropology," 113m ns 7 (1980): 51 -74.

4 According to 0. Hood Phillips, Shakespeare and the Lawyers
(London: Methuen 8: Co., Ltd) 84:

It has been estimated that nearly one-third of the English plays
extant at Shakespeare's death contain a trial scene, and that

well over one-third of those plays performed in London during
Shakespeare's dramatic career contain one or more trial scenes.

5 The text of Measure for Measure only occurs in Folio, and for my
purposes, the Folio text is substantially identical to the text of Measure for
Measure in Alfred Harbage, ed., William Shakespeare: The Complete Worfi
(New York: Viking Press, 1969). Therefore, all references to Measure for
Measure are from the Harbage edition.

6 On the general theatricality of Renaissance life, see Stephen
Greenblatt, Renaissance Self -Fashioning: From More to Shakespaare
(Chicago: University of Chicago Press, 1981) and also Greenblatt,'s Sir Walter
Ralegh: The Renaissance Man and His Roles (New Haven: Yale University
Press, 1973); the later contains a particularly interesting examination of

Raleigh‘s "role-playing" during his trial.

 

271

7 J. H. Baker, "Criminal Courts and Procedure at Common Law
1550-1800," Crime in England 1550-1800. ed. J. S. Cockburn. (Princeton,
New Jersey: Princeton University Press, 1977) 15-48.

8 John Bellamy, The Tador Law of Treason: An Intromtion (London:
Routledge 6t Kegan Paul, 1979) 191.

9 J. S. Cockburn, A History of English Assizes, 1558-1714 (Cambridge,
England: University Press, 1972) 65-6.

 

10 Bellamy, Iddor Law of Treason, 133-4.
11 Bellamy, Tudor Law of Treason 137.

 

12 Bellamy, [ddor Law of Treason 135.

 

13 Bellamy, Mor Law of Treason 136, quoting W. Allen, "A brief e
historic of the glorious martyrdom of xii reverend priests," ed., J. H. Pollen
(London, 1908) 18-19.

14 See Robert Weimann, Shakespeare and the Popt_ll_ar Taadition in the

Theater: Stages in the Social Dimension of Drmatic Form and Function ed.

 

Robert Schwartz (Baltimore: Johns Hopkins University Press, 1978) 49-97
and 208-252.

15 This is my recollection of Weimann's remarks in his address at the
1988 Shakespeare Association of American convention in Boston.

16 J. H. Baker, "Criminal Courts and Procedure at Common Law
1550-1800," Crime in England 1550-1800, ed. J. S. Cockburn. (Princeton, N. J.:
Princeton University Press, 1977) 23.

17 Baker, 23.

19 Baker, 23-4.

19 J. W. Lever, introduction, Measure for Measure, by William
Shakespeare (London: Methuen, 1965) xxxi-xxxv.

20 Greenblatt notes, in Sir Walter Ralegh:

 

272

Ralegh's extraordinary haughtiness is noted by a wide range of
contemporary commentators, from the nameless political
correspondent of Lord Burgley -- his pride is intolerable
without regard for any, as the worldanowa -- to Ralegh's
virulent enemy, Lord Henry Howard -- Rawlie. data in pri,d_e

exceedeth all men alive. . . . the greatest Lucifer that hath lived
in our age -- to Ralegh's uneasy ally, the Earl of

Northumberland -- _I__know him insolent, extremely heated, a
man that desires to seem to be able to sway all men's coarses --
to the ballad maker --

Ralegh doth time bestride:

He sits 'twixt wind and tide:

Yet uphill he cannot ride,

For all his bloody pride. (pp. 55-6)

21 Robert Lacey, Sir Walter Ragga (London: Weidenfeld and Nicolson,
1973) 291.

22 fl, Dom (James I), IV, p. 76, quoted by Lacey, p. 295.

23 Thomas Bayley Howell, ed., Cobbett's Complete Collecdon of Stag
Trials and Proceedings for High Treason andgther Crimes add Miademeanors
from tIhe Earlieat Period to the Prasent Time. 12 vols. (London: R. Baghaw,
1809) 2: 4.

24 Howell, 6.

25 Howell, 7.

26 Howell, 10-11.

27 C. G. L. Du Cann, E_ngliah Treason Trial_s (London: Frederick Muller
Ltd., 1964) 102.

23 Howell, 213-9.

29 Howell, 31.

3° Greenblatt, Sir Walter Raleigh, 1 16.

273

31 Dudley Carleton to Chamberlain, dated Winchester, November 27,
1603, in Cayley, 2: l 1- 12; quoted by Stephen Greenblatt, Sir Walter Raleigh,
116.

32 Edward Edwards, The Life af Sir Walter RM (London:
Macmillan & Co., 1868) 443-6.

33 Edward Edwards, 446.

34 Edward Edwards, 443.

35 Edward Edwards, 443.

36 Edward Edwards, 443-4.

37 Edward Edwards, 449.

38 Edward Edwards, 450.

39 Edward Edwards, 450.

40 Edward Edwards, 452.

41 Edward Edwards, 454.

42 Here, a brief summary of the plot of Promos and Cassandra may be
in order. Whetstone's play has judge Promos sentencing Cassandra's brother
Andrugio to death for fornication. Cassandra pleads for her brother's life,
and Promos agrees to let Andrugio go free if Cassandra will have sex with
him. After much agonized debate with herself, Cassandra decides she has to
save her brother's life and gives in to Promos. Promos, however, orders
Andrugio executed anyway. The execution is thwarted by the jailer, who
lets Andrugio go, deceiving Promos with the head of another felon.
Meanwhile Cassandra, thinking her brother dead and herself guilty of
fornication, goes to the King of Hungary for redress. The King tries Promos
and sentences him to death, but to protect Cassandra's reputation be marries
her to Promos before the execution. Cassandra, who had previously hated

Promos, discovers that she cannot hear to have her husband executed, and

274

pleads to the King to spare Promos. The King refuses. However, Andrugio
comes out of hiding and reveals himself to the King. All are pardoned, and
presumably, Promos and Cassandra live happily ever after.

43 These remarks are based on unpublished research done by Peter
Blaney at the Folger Shakespeare Library. The Basilikon Doron was first
printed in 1599. The nominal audience was Prince Henry. Only seven copies
were printed, and these were in Scots. Between March 24 through April 13,
1603, the Stationers Company supervised the production of eight full
editions of Basilikon Doron (10,000 copies) keeping over half the printing
presses in London occupied. Very few of these copies exist, indicating that
they were read until they fell apart. All of this indicates that Basilikon
__D_pao_n was a major propaganda piece.

44 James I., 20.

45 James 1., 20.

46 Joel Altman, The Tador Playof Mind (Berkeley: University of
California Press, 1978) 6.

47 M. C. Bradbrook, "Authority, Truth, and Justice in Measure for
Measure " Review of English Studies 17 (1942): 385-99.

48 John D. Cox, "The Medieval Background of Measure for Measure, "

 

 

Modern Philolpgy 81 (1983): 1-13.

49 John W. Dickenson, "Renaissance Equity and Measure for Measure, "
Shakspeare Quarterly 13 (1962): 287-97. For an interesting historical study
on “the temper of the times“ relating to mercy and equity, see also Wilbur
Dunkel, "Law and Equity in Measure for Measure " Shakesmga Quarterly 13
(1962): 275-286.

 

50 Harriet Hawkins, "The Devil's Party": Virtues and Vices in Measure

for Measure " Shakespeare Survey 31 (1978): 105-13.

 

275

51 James I., 20.

52 Lever, xxxi, referring to Boswell, ed., Pla s and ms of William
Shakespeare (London: 1821) 2: 383-7.

53 Lever, xxxiii-xxxiv.

54 Robert Lacey's description of James I has more than a touch of

meanness in it, but it is essentially correct:

King James was a coward who wore quilted doublets, padded
breeches and slept in the sweaty igloo of a dozen mattresses for
fear of the assassin's knife. He was, like Cecil, physically
deformed, walking with a crablike waddle, often leaning on the
arm of his favourites. And those favourites were invariably
male, James doting on them with extravagance that astonished
before it shocked, the king nibbling their cheeks and busying
his hands in the most intimate places -- in public. (281-2)

55 Sir Francis Bacon. The Essays or CoJunsels, Civill and Morall, ed.
Michael Kiernan (Oxford: Clarendon Press, 1985) 165-69. Although Bacon
himself was forced from his office for taking "gifts," his essay sets forth an
ideal of judicial conduct that continues to be valid.

56 Bacon, 166-7.

57 Paul Hair, ed., Before the Bawdy Court (New York: Harper and
Row, Publishers, Inc., 1972) 232.

58 Ecclesiastical courts had jurisdiction over the offenses of fornication
and ante-nuptial fornication, and although fornication in the absence of a
precontract was held to be a greater sin than if there were a precontract the
punishment for both crimes was relatively light, as is illustrated by the

following court records:

Warrington, Lancashire, 1592. Against Peter Holbroke and
Susan Middleton fornicators. Excommunicated. [Later -1. . .

 

276

He appears and confesses and saieth hee is to marrie the
woman presentlie and that the time is appointed. Wherefore
his lordship absolved him and also the woman, and decreed that
should the marriage be duly solemnised they confess their fault
before the Rector of Warrington and the wardens there, and if
they do not marry they must do the usual penances, and they
are to certify before the Feast of St. Barholomew concerning the
solemnisation and also the confessions. (Hair, 232)

The couple in this case got off rather more lightly than usual, having only to
do penance if they failed to marry. The following defendant was convicted
at a later date in New England of ante-nuptial fornication; in that time and
place, penalties for this crime were more severe than in England, and yet,

still relatively light:

Plymouth, New England, 1646. John Tompson, coming into this
Court and acknowledging his fault of incontinency with his wife
before marriage, but after contract, was fined v li. & imprisoned
according to order, but paying his fees, was released of his
imprisonment. (Hair, 190)

This additional record indicates that even those engaged in

simple fornication did not suffer large penalties:

Otterhampton, Somerset, 1623. Against Iohn Duddridge.
Presented that he and Jane Vinobles did lye together on
Christmas Eve last in fornication or incontinency. He appeared
. . . and alleged pre-contract. Ordered to produce proof [Later,]
he appeared without proof. Public penance once in church.

[Later,] a certificate of penance produced, dismissed, 4d [fees].
(Hair, 119)

Most individuals who were ordered to perform penance did so

barefoot and, like Claudio, dressed in a sheet, carrying an explicatory placard

277

or symbol:

The typical pre-Ref or mation penitent preceded the cross borne
in procession round the church, carrying a candle which he
subsequently placed before the principal image or took to the
high altar at the time of the offertory. Winchester penances
frequently included a beating ad ministered by the penitent's
parish priest or rural dean. But in some other dioceses,
including that of Norwich, this type of punishment had
practically gone out of use by the early sixteenth century. The
Protestant church reemphasized the ceremony's didactic
purpose; penitents were often ordered to make very full
declaractions or to stand in an appropriate place while a homily
was read. . .

Penance was a humiliating experience, especially for
anyone of standing. Judges were sometimes prepared to
commute it into a money payment, and in this way quite
substantial sums were raised for pious uses such as the relief of
the poor and prisoners, the support of scholars at the
universities, and the equipment of parish churches.
(Houlbrooke, 46-7)

59 George Whetstone, Promos and Cassandra, Narrative and Dramatic
Saurces o_f Shakespear_e, ed. Geoffrey Bullough, 2nd ed., 5 vols. (New York:
Columbia University Press, 1963) 2: 444.

60 Karl P. Wentersdorf, ”The Marriage Contracts in Measure for
Measure": A Reconsideration, Mespeartasdrvey 32 (1980): 129-44.

61 Ralph Houlbrooke, Church Courts and the Peonle During the English
Reformation. 1520-1570 (Oxford: Oxford University Press, 1979) 55-88.

62 Wentersdorf, 135.

63 James 1., 37.

64 Thomas Bayley Howell, ed., Cobbett‘s Complete Collection of State
Trials and Proceedings f or High Treason andQLher Crimes and Misdemeanors

278

from the Earliest Period to tne Present Time. (London: R. Bagshaw, 1809) 2:
10.

65 The corrupt judge was a common figure in Renaissance literature
and art. See, for example, Sir Walter Ralegh's "The Lie," or the Hans Holbein
woodcut "Death withdraws the Judge's staff as he takes a bribe from a rich
suitor," in Hans Holbein, The Dance of Death, introduction, Austin Dobson
(London: George Bell 8: Sons, 1892). The reign of James I has long been
noted for its judicial corruption. In Edward Foss, The |udges of England
(London: Longman, Brown, Green, Longmans 8t Roberts, 1857) 6: 3, Foss
describes judicial administration under James I as follows: "The general
corruption of this reign, which notoriously pervaded almost every
department of the state, extended itself to the courts of justice and those
connected with them. . . . Bribery was common though dignified with the title
of presents and new year's gifts." A less extreme and probably more
accurate appraisal is contained in Joel Hurstfield, Freedom, Corruption and
Government in Elizabethan England (London: Jonathan Cape, 1973): 137-162.
Jacobean corruption was foreshadowed in Tudor times; for a brief list of
corrupt Tudor judges see Penry Williams, The Tddor Regi_ma (Oxford:
Clarendon Press, 1979): 104- 5. Regardless of whether corruption actually
was worse under James I, it seems likely that his subjects perceived it to be
worse, which is perhaps more important for our purposes.

66 Bacon, 166.

67 "Scale," The Compact Edition of the Oxford English Dictionary,
(Oxford: Oxford University Press, 1971).

68 Bacon, p. 167.

69 The need to give a quid pro duo in judicial and commercial

dealings was a commonplace. The spiritual dangers of giving false measure

279

in mmmercial dealings are set forth in an emblem by George Wither,
showing an arm with measuring scales, reaching out of a cloud. The
accompanying poem has the concluding couplet: "And, lest thou f aile [to give
the correct measure] remember who hath sayd/Such measure, as thou givst,
shall be repay'd"; see George Wither, Collection of Emblems Ancient and
Modern (1635) p. 100.

70 Edward Edwards, 444.

71 This view is supported by Rosalind Miles' reading in her book Ina
Probleln_o_f ”Meme for Measure": A Hiatorical Investigatazn. (New York:
Harper and Row, Publishers, Inc., 1976) 194: " [Isabella] must forgive, but
she must forgive disinterestedly, and this is the reason why Shakespeare
makes the Duke harp on Claudio's execution in a way that has often been
received as cruel."

72 According to the principle of natural justice (which is not to be
confused with the principle of natural law), a man cannot be a judge in his
own case. As noted by H. H. Marshall in Natural Iustice (London: Sweet &
Maxwell Lts.: 1959): 2 5, “The principle is not confined merely to the caSe
where the judge is an actual party to a cause, but applies to a cause in which
he has an interest. An ‘interest,' . . .has been defined as a legal interest or a
pecuniary interest . . . " Clearly, on the issue of his own guilt, Angelo is an
"interested" party.

73 Turner, Victor W. The Ritual Process: Structure and Anti-Structure
(Chicago: University of Chicago Press, 1967) 172-8. See also: Van Genep,
Arnold. The Rites of Passage (Chicago: University of Chicago Press, 1960)
The introduction by Solon T. Kimball is particularly helpful.

For a discussion of how these status-reversal rituals relate to

Shakespeare's comedy, see C. L. Barbar, Shakespeare's Fe,s_t_iye Comedy

280

(Princeton, N. J.: Princeton University Press, 1972). Barber does not use the
term "status reversal ritual," but everything he has to say about Tudor
festivals supports the position that Shakespeare was aware of such rituals as
festivals and that be incorporated them in his plays.

74 Turner, 176-7.

75 Edmund R. Leach, Internationalancyclopedia of Social Sciences.
ed., David L. Sills (New York: Macmillan, 1968-77) 13: 525, summarizes
from Gluck man, Max. "Les Rites de Passage," in Essays on the Ritual of Social
Relations, ed. Max Gluck man (Manchester, England: Manchester University
Press, l962),l-52: "Gluckman stresses the agressive [sic] elements present in
role—reversal ceremonies, which he aptly names "rituals of rebellion." The
performers, he suggests, act out in dramatic form hostilities that are deeply
felt but may not he expressed in normal secular relationships. This acted
aggression serves as a cathartic release mechanism, and by relieving tension
these inverted behaviors actually serve to strengthen the moral code they
appear to deny."

76 Jonathan Dollimore, "Transgression and Surveillance in Measure for

Measure " "Political Shgespeare: New Essays in Cultural Materialism, eds,

 

Jonathan Dollimore and Alan Sinfield (Ithaca: Cornell University Press, 1985)
72-87; Dollimore contends that the emergency in Vienna is a false one,
created by the Duke to increase his own power.

77 H. L. A. Hart, Punishment and Responsibility: Esaays in the Hay
(Oxford: Oxford University Press, 1968) 2-3: Hart lists the main objectives
of the criminal sanction as deterence, retribution and reform.

78 Lon Fuller, The Morath of Law (New Haven: Yale University
Press, 1964); Fuller describes the relationship of law to two moralities: the

morality of duty and the morality of aspiration. On page 30, Fuller notes:

 

281

In the morality of duty it is understandable that
penalties should take precedence over rewards. We do not
praise a man or confer honors on him, because he has
conformed to the minimum conditions of social living. Instead
we leave him un molested and concentrate our attention on the
man who has failed in that conformity, visiting on him our
disapproval, if not some more tangible unpleasantness.

Considerations of symmetry would suggest that in the morality
of aspiration which strives towa_rd the superlative reward __a__nd

gage should play the role that punishment and disapprovalo do
in the mmlity of duty. To some extent this mirror image
maintains itself in practice. But perfect symmetry is marred by
the fact that the closer a man comes to the highest reaches of
human achievement, the less competent are others to appraise
his performance. [underlining added]

 

I would argue that, through the ritual-trial that closes Measure for
Measure, the duke tries to establish in Vienna both a morality of duty and a
morality of aspiration, by exposing Angelo‘s vice and glorifying Isabella's
virtue. As Fuller notes, the attainment of a "perfect symmetry" between
these two moralities is, in practice, very difficult. One way of attaining such
symmetry is through ritual -- and drama -- both of which can be used to
"figure forth a perfect pattern" of order and morality. Not only does the
Duke's production give society useful models to emulate and avoid, but
inspires emulation and avoidance through the mythic power of ritual.

79 Van Genep, l-l4; and Turner, 95-6.

80 Turner, 95.

81 Van Genep, 168.

82 Samuel Taylor Coleridge, Coleridge's Shakespeare Criticism, ed. T.
M. Rayson (New York: E. P. Dutton 8: Co., Inc, 1930).

83 A. C. Bradley, Shakespearean Tragedy (London, 1904).

282

84 Quiller-Couch, Sir Arthur, introduction, Measure for Measure.
(Cambridge, England: Cambridge University Press, 1922) xxx-xxxii.

85 L. C. Knights, "The Ambiguity of Measure for Measure " Scrutiny 10
(1942): 222-33.

86 For a description of the Robin Philips 1975 Stratford Festival

 

production, see Philip McGuire, Speechless Dialect: Shakespeare's Open
M903 (Berkeley: University of California Press, 1985): 64-6.

87 For a description of how this was done in the 1970 John Barton
production and the 1975 Jonathan Miller production, see McGuire, 164.

88 This also occurred in the Robin Philips production; see McGuire, 74.

89 Roy Battenhouse, "M_aaadre for Measure and the Christian Doctrine
of Atonement." P_Idl_.a_ 61 (1946): 1029-59; see also Roy Battenhouse,
”Measure for Measure and King James." C_LIQ 7 (1978): 193-215.

90 Josephine Waters Bennett, Mealflre for Meaalre as Royal
Entertainment (New York: Columbia University Press, 1966).

91 Nevill Coghill, "Comic Form in Measure for Measure " Shakespeare

 

SJLvey8 (1955): 14-26.

92 Francis Ferguson, The Human Imagain Dramatic Literature, (New
York: Doubleday 8: Co., Inc, 1957).

93 G. Wilson Knight, The Wheel of Fire (Oxford: University of Oxford
Press, 1949).

9“ Battenhouse, Ibid.

95 Kadish, Sanford H., Stephen J. Schulhofer and Monrad G. Paulsen,
Criminal Law and Its Processes: Cases and Materials (Boston: Little Brown
and Company, 1983) 257-8.

96 The existence of this principle in the time of Shakespeare is

evident from a reading of Sir Edward Coke's Third Institute of the Laws of

283

E_ngla_n_d (1644), particularly page 5. Coke gives a lengthy discussion of the
felony of murder, noting that intention to commit murder is not enough to
establish a crime, even if the intention is spoken or put in writing. (A
notable exception is the spoken intention to murder the king, which was high
treason regardless of whether it was accompanied by any action against the
king.) Coke's book, which lists the elements of many crimes, typically sets
forth, for each crime, the requirement of intention, and then lists several acts
which, when joined with the intention, constitute the crime. The discussion
of the law of attempts, which follows, clearly indicates the Elizabethan and
Jacobean refusal to criminally prosecute persons who had not in fact
committed some overt and obviously damaging act. Sir William Blackstone
in 4 Commentaries on the Laws of England p. 21 (1769) thus gives an

accurate summary of law, even as it existed in Shakespeare's day:

Indeed, to make a complete crime, cognizable by human laws,
there must be both a will and an act. For though, in Lard
conscientiae, a fixed design or will to do an unlawful act is
almost as heinous as the commission of it, yet, as no temporal
tribunal can search the heart, or fathom the intentions of the
mind, otherwise than as they are demonstrated by outward
actions, it therefore cannot punish for what it cannot know. For
which reason in all temporal jurisdictions an overt act, or some
open evidence of an intended crime, is necesasry, in order to
demonstrate the depravity of the will, before the man is
liable-to-punishment.

In Angelo's case, we can be rather sure of the intentions of his heart.
Therefore the rational for applying the rule would not be effectuated. Still,
the rule would stand, and Angelo would receive its benefit. One can be guilt
in foro consciendaa without being guilt in a court of law.

97 See J. Birje-Patil, "Marriage Contracts in Shakespeare‘s Measure for

284

Measure " Shakespeare Studies 5 (1969): 106-1 1; Harriet Hawkins, "What

 

Kind of Precontract Had Angelo?" College English 36 (1974): 173-9; Davis P.
Harding, "Elizabethan Betrothals and Measure for Measure " [purnal of

 

E_nglish and Germanic Philoldgy 49 (1950): 139-158; the chapter on Measure
for Measure in William W. Lawrence, S_ha1_<espeare's Problem Comed1_e_s
(New York: Frederick Ungar Publishing Co., 1931); S. Nagarajan, "Maaalre for
Measure and Elizabethan Betrothals," Shakespeare Otalrterly 14(1963):

1 15-1 19; Ernst Schanzer, "The Marriage Contracts in Measure for Measure "

Shakesmzare Studies 13 (1962): 81-9; Karl P. Wentersdorf, "The Marriage

 

Contracts in Mea_sdre for Mew": A Reconsideration," Mespeare Sdrvey
32 (1980): 129—44.

98 Birje-Patil, Lawrence, SChanzer, as cited in previous note.

99 LaFave, Wayne R. and Austin W. Scott. Handbook on Criminal Law.
(St. Paul: West Pub. Co., 1972), p. 423, quoting 2 Pollack 8t Maitland, My
of English Lay»: 508 n. 4 (2d ed. 1923).

100 LaFave and Scott at p. 424 quoting Sayre, "Criminal Attempts, 41
Harvard Law Review 822-37 (1928), 827 note I. *

LaFave and Scott, at p. 424, note that the modern doctrine of criminal
attempts may have originated in the Court of Star Chamber, which was
abolished in 1640. They state (with internal quotation from Sayre, note I,
p. 829 :

The modern doctrine of criminal attempts is said to have
had its origin in the Court of Star Chamber. . .

The Court of Star Chamber was abolished in 1640, and its
influence upon subsequent common law courts is a matter of
dispute. But it is clear that many years elapsed after its
abolition before a doctrine of criminal attempt was actually
formulated. "The language of the common law courts after 1640
continues to reflect the early common law views and statements

 

285

antedating the Star Chamber; there is not a ripple in the calm
surface to indicate that a new doctrine of criminal attempts had
been suggested."

LaFave and Scott go on to state that "The modern doctrine of attempt
may actually be traced back to the case of Rex v. Scofield in 1784. . .
Angelo's "case" having preceded Rex v. Scofield by a comfortable 180 years,
we can safely acquit him from conviction under an "attempt" theory.

101 For evidence of the Elizabethan and Jacobean sensitivity to sexual
defamation and slander, see Houlbrooke, 79-83; J. A. Sharpe, Defamation and
Sexual Slander in Egly Modern England: The Church Courts at York
(University of York, Borthwick Institute of Historical Research: Borthwick
Papers No. 58, 1980); Hair, 252-3.

102 C. H. Rolph, The Qdeen's Pardon (London: Cassell, 1978) 21.

103 Dollimore, 72-87.

104 M. Spufford, ”Puritanism and Social Control?" Order and Disorder
in Early Modern England, eds. Anthony Fletcher and John Stevenson
(Cambridge, England: Cambridge University Press, 1985) 41-57.

105 Sharpe, 1.

106 George Ellliott Howard A History 0L Matrimonial Institutions, 3
vols. (1904; New York: Humanities Press, 1964) 1:364-403.

107 Hair, 239-242.

108 Howard, A History ao_f Matrimonial Institutions, 3 vols. (1904;
New York: Humanities Press, 1964) 1:337-9.

109 Howard, 1:316.

110 Hair, 240-1.

1 11 Henry Swinburne, Treatise Of Spousals or Matrimonial Contracts
(London; S. Raycroft for Robert Clavell, 1686).

 

286

112 Henry Swinburne, Of Spousals, paraphrased by Howard, 1:
379-80.

113 James 1., 27.

114 For a sample of the way directors have approached this problem
and how the meaning of the play is affected, see McGuire, pp. 79-93.

“5 Frederic Jameson, The Politcal Unconscioas: Narrative as a Socially
Symbolic Act (Ithaca, New York: Cornell University Press, 1981) 80.

“6 Rene Girard, Violence and the gored (Baltimore: Johns Hopkins
University Press, 1972)146.

l 17 See Girard; The entire book explores the use of the scapegoat.

”8 Montrose, Adrian, "The Purpose of Playing: Reflections on A

Shakespearean Anthropology," Helios, ns 7 (1980): 51-74.

 

“9 Mark Kelman, A Guide to Caitigal Legal Studies (Cambridge, Mass:
Harvard University Press, 1987) 40-1.

287

Works Consulted

Alexander, Peter. Shakespeare's Henry VI and Richard III. Intr. Alfred W.
Pollard. Cambridge, England: The University Press, 1929.
[PR2813.A85]

Alford, John and Dennis P. Seniff. Literature and Law in t_he Middle Ages:
A Biblipgraphy of Scholarship. New York: Garland Publishing,
1984. [26514.L3A41984]

Allen, J. W. E_nglish Political Thodght 1603-1660. 2 Vols. London: Methuen
& Co. Ltd., 1938. [JA84.G7A61

Anonymous. Njal‘s Saga. Trans. Magnus Magnuson and Hermann Palsson.
Harmondsworth, England: Penguin Books, Ltd., 1960.

Altman, Joel. The Tudor Play of Mind. Berkeley: University of California
Press, 1978. [PR658.R5A51

Arnold, Morris 8., et a1. On the Laws and Customs of England: Essays in
Honor of Samuel E. Thorne. Chapel Hill: The University of North
Carolina Press, 1981. [KD532.B31

Avery, M. E. "The History of the Equitable Jurisdiction of Chancery Before
1460." Balletin of the Instimtejof Historical Research, 42 (1969):
129-44. [D1.L65]

Aylmer, John. "An Harborowe for Faithful and True Subjects against the
Late Blown Blast concerning of Government of Women." The Tudor
Constitaltion: Docdments m Com mentiay. Ed. G. R. Elton. 2nd ed.
Cambridge, England: Cambridge University Press, 1982. [JN181.T32E4]

Babington, Anthony. The Rdle of Law in Britain from the Roman
Occupation to Praaent. Chichester, England: Barry Rose, 1978.
lKD532.B31

Bacon, Sir Francis. "Of Judicature." The Essays or Counsels Civill and Morall.
Ed. Michael Kiernan. Oxford: Clarendon Press, 1985. [PR2206.A1985]

 

 

 

288

---. The Letters and the Life of Francis Bacon. Ed. James Spedding. 7 vols.
London: Longmans, Green, Rader and Dyer, 1858-74. [B1153.1855]

—--. ssays. Harmondsworth, England: Penguin books,Ltd., 1985.

Baker, John Hamilton. Introduction to English Legal History. London:
Butterwords, 1971. [KJ.B34]

---, ed. Legal Records and the Historian. London: Royal Historical Society,
1978. [KD523.A75C3419751

---. "Law and Legal Institutions." William Shakespeare: His World, His Work
His Influence. Ed. John F. Andrews. 3 vols. New York: Scribners,
1985. [PR2976.f.W53541984]

---. "Criminal Courts and Procedure at Common Law 1550—1800." Crime
in England 1550-1800. Ed. J. S. Cockburn. Princeton, N. J.: Princeton
University Press, 1977. [HV6943C74]

Ballow, Henry . A Treatise of Equity. Ed. John Fonblanque. Rev. John
Fonblanque. New York: Garland Publishing Inc., 1979.
[KD674.B319791

Barber, C. L. Shakespeare's Festive Comedy. Princeton, N. J.: Princeton
University Press, 1972. [PR2981.B31972]_

Barnes, T. G. "Due Process and Slow Process in the Late-Elizabethan/

Early—Stuart Star Chamber." American [ournal of Legal History. 6
(1962):123-150. [KB.A1A5121

Barnet, Sylvan, ed. Twentieth Century Interpretations of "The Merchant of
Venice." Englewood Cliffs, N. J.: Prentice—Hall, 1970. [PR2825.B31970]

 

---. "Prodigality and Time in The Merchant of Venice." PMLA. 87 (1972):
26-30. [PB6.M65]

 

Bartlett, John. Bartlett‘s Familiar Quotations. Ed. Emily Morison Beck.
15th ed. Boston: Little, Brown & Company, 1980. [PN6081.BZ71968]

Barlett, Robert. Trial by Fire and Water: The Medieval judicial
Ordeal. Oxford: Clarendon Press, 1986. [KJ1018.B371986]

 

289

Barton, Sir Dunbar Plunket. Links Between Shakespeare and the Law.
London: Faber and Gwyer Ltd, 1929 [PR3028.B3; Folger]

Battenhouse, Roy. "Measure for Measure and the Christian Doctrine of
Atonement." PMLA. 61 (1946):1029-59. [PB6.M651

---. "Measure for Measure and King James." CLIO 7 (1978): 193-215.
1A530.C531

Bellamy, John. The Tudor Law of Treason: An Introduction. London:
Routledge and Kegan Paul, 1979. [K080228431

---. Crime and Pablic Order in England in the Later Middle Agas. London:
Routledge and Kegan Paul, 1973. [HV6943.B441973]

---. Criminal Law and Society in Late Medieval and Tadar England. New
York: St. Martin's Press, 1984. [KD7850.B451984]

Bennett, J. W. "The Mediaevel Love-Day." Speculum. 32 (1958): 351-70.
IPN66lSI

---. ”Measure for Mew-e43 Royal Entertainment. New York: Columbia
University Press, 1966. [PR2824.B4]

Benston, Alice N. "Portia, the Law and the Tripartite Structure of [la
Merchflt of Venice." Shakespeare Quarterly. 30 (1979): 367-85.
[PR2887.N521

Ber man, Harold J. Law and Revoldtion: The Formation of Western Lagal
Tradition. Cambridge, Mass: Harvard University Press, 1983.
[K150.B4719831

Berman, Ronald. "Shakespeare and the Law." Shakespeare Quarterly. 17
(1967): 11-50. [PR2887.N521

Berry, Ralph. Shakespeare's Comedies: Explorations in Form. Princeton,
N. J.: Princeton University Press, 1972. [PR2981.B4]

Bindoff, S. T. Tudor England. Harmondsworth, England: Penguin Books,

290
Ltd., 1950.

Birje-Patil, J. "Marriage Contracts in Shakespeare's Measure for Measure."
Shakespeag Studies. 5 (1969): 106-111. [PR2885.S64]

 

Black, Henry Campbell. Black's Law Dictionary. St. Paul, Minnesota: West
Publishing Co., 1979.

Black, J. B. The Reign of Elizabeth 1558-1603. 2nd. ed. Oxford: Clarendon
Press, 1959. [DA30.091

Blackstone, Sir William. Commentaries on the Laws of England: a Facsimile
of the First Edition of 1765-1769. 4 vols. Chicago: University of
Chicago Press, 1979. [KD660.B521765a]

Blackstone, Sir William. The Sovreigaity of the Law. Ed. Garreth Jones.
Toronto: University of Toronto Press, 1973. [KD660.B561973b]

Blatcher, M. The Cram of K_ing's Bench. 1450-1550: A Stddy in Self -Help.
London: Athlone Press, 1978. [KD6895.B553]

Bodin, Jean. The Six Boodas of the Commonwea_le_. Trans. Richard Knoll.
London: G. Bishop, 1606. [Special Collections 320.1qB667s]

Boswell-Stone, W. G. Shakespaare's Holinshed. 1896; New York: Benjamin
Blom, 1966. [PR2955.H7H61

Bracton, Henry de. On the Laws and Customs of England. Trans. Samuel E.
Thorne. Cambridge, Mass: Harvard University Press, 1968. [KJ.B713]

Bradbrook, M. C. "Authority, Truth, and Justice in Measure for Measure"
Review of lagglish Studies. 17 (1942): 385-99.. [PR1.R42]

Bradley, A. C. Shakespearean Tragedy. New York: St. Martin's Press, 1985.
[PR2983.B719851

Brewer, John and John Styles, eds. An Ungovernable People: The English
amt Their Lav in the Seventeenth and Eighteenth Centuries. London:
Hutchinson University Library, 1980. [KD612.U519831

Brockbank, J. P. "The Frame of Disorder -- Henry VI." Shakespeare: The

 

291

I_I_i_stories: A Collection of Critical Essays. Ed. Eugene M. Waith.
Englewood Cliffs, N. J.: Prentice-Hall, Inc, 1965. [PR2982.W31

Brooks, C. W. Pettyfoggers and Vipers o_f the Commonwealth: The "Lower
Branch"aof the Legal Profession in Early Modern England. New York:
Cambridge University Press, 1986. [KD466.B7]

Brown, John Russell. "11 Pecorone." The Merchant of Venice. London:
Methuen, 1984.

Bruyn, Lucy de. Mob Rule and Riots, Tha Present Mirrored in t_he Pa_sta
New York: Regency Press, 1981. [PR658.H5D41981]

Bullough, Geoffrey. Narrative and Dramatic Sources of Shakespeare. 8 Vols.
London: Routledge and Kegan Paul, 1963. [PR2952.B8]

Burghley, William Cecil, Lord. E_xecution of sttice in England. Ithaca, N. Y.:
Cornell University Press, 1965. [DA352 583.B831]

Bush, Douglas. The Renaissance and English Humanism. Toronto:
University of Toronto Press, 1939. [B778.B8]

Camden, William. Annales. 3rd ed. London: Benj- Fisher, 1635. [Special
Collections 350.Cl951635]

Cairncross, Andrew S, ed. The Second Part of King Henry VI. William
Shakespeare. London: Methuen, 1965.

Campbell, John. Shakespeare's Legal Acguirements Conaidered. London: J.
Murray, 1859. [PR3028.C3; Folger]

Campbell, Lily B. Shakespeare's "Hiatories": Mirrors of Elizabethan Poligg.
San Marino, California: The Huntington Library, 1947. [PR2982.C3]

---, ed. A Mirror for Magistrates. Cambridge: Cambridge University Press,
1946. [PR2199.M51946]

Cardozo, Jacob Lopes. The Contemporary [ew in the Elizabethan Drama.
New York: Burt Franklin, 1968. [PR658.J4C31969]

Charleton, H. B. Shakespearean Comedy. 4th ed. London: Methuen 8: Co.,

 

292

Ltd., 1949. [PR2981.C471

Chrimes, S. B. English Constitutional Ideas in the Fifteenth Centug.
Cambridge, England: The Cambridge University Press, 1936. [JN.165]

---. English Constittnidnal History. Cambridge, England: The Cambridge
University Press, 1965. [JN121.C621965]

Christie, George C. Law, Norms, and Authority. London: The Trinity Press,
1982. [K230.C47L381

Church of England. Certaine Sermons or Homilies Appointed to be Read in
Churches In the Time of meen Elizabeth I (1547-1571). 1623;
Gainesville, Florida: Scholars‘ Facsimilies 8t Reprints, 1968.
[BX5133A1A31968]

Cicero. DeOfficiis. Trans. Walter Miller. 3vols. Cambridge, Mass: Harvard
University Press, 1968. [PA6296.D51968]

--- [Pseudo]. Ad Herrenium. Ed. Harry Caplan. Cambridge, Mass: Harvard
University Press, 1981.

---. DeOratore. Trans. H. Rackham. 2vols. Cambridge, Mass: Harvard
University Press, 1942. [DA6296.D61942]

---. Murder Trials. Harmondsworth, England: Penguin Books Ltd, 1985.

Clancy, T. finist Pamphleteera The Allen-Persons Party and the Political
Thought of Copter-Reformation in England. Chicago: Loyola
University Press, 1964. [BX1492.C55]

---. "English Catholics and the Papal Deposing Power, 1570-1640."
Recusant History. 6 (1961-62) 114-40, 205-27; 7 (1963-64) 2-10.
[BX1491.R41

Clarkson, Paul Stephen. The Law of Property in Shakespeare and the
Elizabethan Drama. Baltimore: The Johns Hopkins Press, 1942.
[PR3028.C5; Folger]

Clemen, Wolfgang H. "Anticipation and Foreboding in Shakespeare's Early
Histories." Shakespeare Survey 6. Ed. Allardyce Nicoll. Cambridge,

 

293
England: The University Press, 1953. [PR2888.C3]

Cockburn, J. 8. Crime in England: 1500-1900. Princeton, N. J.: Princeton
University Press, 1977. [HV6943.C74]

---. A History of English Assizes, 1558-1714. Cambridge, England:
Cambridge University Press, 1972.

Coghill, Nevill. "Comic Form in Measure for Measure." Shakespgre Sprvey.
8 (1955): 14-26. [PR2888.C3]

---. "The Theme of the Merchant of Venice." Twentieth Centu_ry
Interpretations of the Merc_h_ant of Venice: A Collection of CJ‘itical
Essays. Ed. Sylvan Barnet. Englewood Cliffs, N. J.: Prentice-Hall, Inc,
1970. [PR2825.B319701

Coke, Sir Edward. The First Pat of the Instittaaes of the Laws of England.
5th ed. London: Company of Stationers, 1656. [Special Collections,
KJC575]

---. The First Part of the Institutes of the Laws of England. 3rd ed.
London: M. Flesher, I. Heaviland, R. Yonds, 1633. [Film “15786,
Carton ”809]

---. The Second Part of the Institdtes of the Laws of England- London: A.
Crooke, 1669. [Special Collections, KJf.C577]

The Third mt of the Instadtes of the Laws of England. London: J.
Streeter, 1670. [KJfC58]

---. The Third Part of the Institutes of the Laws of England. London: W.
Rawlins for Thomas Basset, 1680 [KJfC58]

---. The Earth Part of the Institutes of the Laws of England. London: M.
Flesher for W. Lee, 1648. [KJfC58]

Coleridge, Samuel Taylor. Coleridge's Shakesmare Criticism. Ed. T. M.
Rayson. New York: E. P. Dutton 6t Co., Inc, 1930. [PR2976.C5519381

Colin, Morris. "Judicum Die: The Social and Political Significance of the
Ordeal in the Eleventh Century." Studies in Church History. 12 (1975):

 

 

294
95-112. [BR141.584]
Collen, John Scott. "Launcelot, Jacob and Esau: Old and New Law in m
Merchant of Venice." Yearbook of English Studies. 10 (1980): 181-9.
IPR3.Y4I

Coolidge, John 5. "Law and Love in The Merchant of Venice." Shakespeare
Quarterly. 27 (1976): 243-63. [PR2887.N521

Collinson, Patrick. The Religion of the Protestants: The Church in English
Society 1559-1625. Oxford: Clarendon Press, 1979. [BX5070.C581

Cook, Ann Jennalie. The Privileged Playgoers of Shakespeare's London,
1576-1642. Princeton, N. J.: Princeton University Press, 1981.
[PN2596.L6C5]

Coolidge, John S. "Law and Love in The Merchant of Venice." Shakespeare
Quarterly. 27 (1976) 243-63. [2887.N52]

Corbin, Charles. Corbin on Contracts. St. Paul: West Publishing Co., 1952.
1HF1253.C619531

Coward, Barry. The Stnart Aye, A History of England 1603-1714. London:
Longman, 1980.

Cox, John D. "The Medieval Background of Measure for Measure." Modern
Philolpgy. 81 (1983): 1-13. [PBl.M7]

Cressey, David. Literady and the Social Order: Reading and Writing in
Tudor and Stuart England. Cambridge, England: Cambridge University
Press, 1980. [LC156.G7C73]

Cross, Geoffrey and Geoffrey Yonge. The English Legal System. London:
Butterworth 8: Co., 1937. [KJ.R3]

Cunningham, J. V. Collected Essays. Chicago: Swallow Press, 1980.

Daly, J. Sir Robert Filmer and English Political Thought. Toronto: University
of Toronto Press, 1979. [JC153.F5D34]

Danson, Lawrence. The Harmonies of The Merchant 9L Venice. New

295

Haven: Yale University Press, 1978. [PR2825.D3]

Davecmon, William G. . . .In re Shakespeare's "legal acguirements"; Notes
py_an Unbeliever Therein. New York: The Shakespeare Press, 1899.

[PR3028.D4; Folger]

Davis, Cushman Kellogg. The Law in Shakespeare. St. Paul: West Publishing
Co., 1884. [PR3028.D31; Folger]

Dean, Paul. "Shakespeare's Henry VI Trilogy and Elizabethan ‘Romance'
Histories: The Origins of a Genre. Shakesneare OdarterlY- 33 (1982):
34-48. [PR2887.N521

Denvir, John. "William Shakespeare and the Jurisprudence of Comedy."
39 Stanford Law Review 825-849. 1987. [KH.AIS72]

Dickenson, John W. "Renaissance Equity and Measure for Measure."
Shakespeare (Mrterly. 13 (1962): 287-97. [PR2887.N521

Dobson, Austin. Intro. The Dance of Death. London: George Bell 8t Sons,
1892. [N7720.H6L93l97ll

Dodderidge, Sir John. The Layyer's Light: Or a Due Direction for the Study
of Law. London: B. Fisher, 1629. [reel 1349]

---. "Notes on a Method for the Study and Practice of the Common Law."
Folger Library MS. V. b. 184, ca. 1630.

Dollimore, Jonathan. "Shakespeare, Cultural Materialism, and the New
Historicism," Politieal Shakespeare: New Eseays in Cultural
Materialism. Eds. Jonathan Dollimore and Alan Sinfield. Ithaca:
Cornell University Press, 1985. [PR3017.P591985]

Doran, Madeleine. "Henry VI, Parts 11 and III." their Relation to "The
Contention" and "The Tree Tragedy." Iowa City, Iowa: University of
Iowa Humanistic Studies, 1929 [PR2813.D67]

 

Drakakis, John. Alternative Shakespeanee. London: Methuen, 1985.
[PR2976.SI985]

Du Cann, C. G. L. English Treason Triala London: Frederick Muller Ltd,

296
1964.1KJD83]

Dunkel, Wilbur. "Law and Equity in Meaedre for Measure." Shakespeare
Quarterly. 13 (1962): 275-286. [PR2887.N521

Dunham, W. H. and Wood, C. T., "The Right to Rule in England: Depositions
and the Kingdom's Authority, 1327 - 1485." American Historical
Review. 81 (1976): 738-61. [E171.A57]

 

Dunham, William. "William Camden's Commonplace Book." The Yale
University Library Gazette. 139-156.

Eccleshall, R. Order and Reason in Politics: Theories of Absolute and
Limited Monarchy In Early Modern England. Oxford: Oxford
University Press, 1978. [JC375.E33]

 

Eden, Kathy. "Poetry and Equity: Aristotle's Defense of Poetry." Traditio.
38 (1982):l7-44. [D111.T7]

Edwards, Edward. The Life of Sir Walter Raleigh. London: Macmillan 8t Co.,
1868. [DA86.22.R232]

Elton, Geoffrey R. English Law in the 16th Centgy. London: Seldon Society,
1979. [KD612.E471

---. England Ulger the Ttalors. 2nd. ed. London: Methuen, 1972.
IDA30.054I

---. Reform and Reformation: England. 1509-1558. Cambridge, Mass:
Harvard University Press, 1977. [DA332.E497]

—--. Poligg and Police: The Enforcement of the Reformation in the Age of
Thomas Cromwell. Cambridge, England: Cambridge University Press,

1972. [DA332.E4961

---. "Tudor Government: The Points of Contact, 111. The Court." Transactions
of the Royal Hiatorieal Society. 5th ser. 26 (1976): 211-28. [DA20.R6]

"A High Road to Civil War?" From the Renaissance to the Counter-

Reformation: Ess says in Honour of Garrett Mattingly. Ed. C. H Carter.
(New York, 1965).

297

---. Studies in Tudor and Stuart Poplitics and Government: Papers and
Review 1946-1972. 2 vols. Cambridge, England: Cambridge University

Press, 1974. [JN181.E48]

---. The Tudor Constitution. 2nd ed. Cambridge, England: Cambridge
University Press, 1982. [JN181.T32E4]

Elyot, Sir Thomas. The Boke Named the Gouernour. Ed. Henry Herbert
Stepehn Croft. New York: Burt Franklin, 1967. [JC393.B3E51967]

Em mison, F. G. Elizabethan Life: Morals 8: The Church Courts. Colchester,
England: Benham and Company, 1973. [KD8605.E441

Ferguson, Francis. The Human Image in Dramatic Literature. New York:
Doubleday & Co., Inc, 1957. [PN1623.F451

Fink, Zera Silver. Qlaesical Rethblicans: An Ess_lay in the Recovery of a
_P_attern of Thodght in Seventeenth-Centdry England. Evanston,
Illionois: Northwestern University Press, 1945. [AS36.N66 no.6]

Figgis, John Neville. The Divine Right of Kings. 2nd ed. Cambridge,
England: The University Press, 1922. [JC329.F51914]

Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon Press;
New York: Oxford University Press, 1980. [K460.F57]

Fletcher, Anthony and John Stevenson, eds. Order and Disorder in Early
Modern England. Cambridge, England: Cambridge University Press,
1985. [DA300.07319851

Fletcher, Anthony. Indor Rebellions, London: Longmans, 1968.
[DA315.F561

Fortescue, Sir John. De laudibus legum Angliea. London: 1616.
[MSU Remote Storage -- 347.F738071

---. he governance of England -- otherwiae called the difference between
a limited and an absoldte monmny. Westport, Conn: Hyperion Press,
1979. [JC121.F76 1979]

298
---. Works of Sir john Fortescue. London: 1869. [PR1971f.Al 1869]

Foss, Edward. The |udges of England. London: Longmann, Brown, Green,
Longmans & Roberts, 1857. [KJ.F6l

Foxe, John. Foxe's Book of Martyrs. 2 Henry VI. Part Two. Ed. Arthur
Freeman. New York: Signet, 1967.

Fraunce, Abraham. The Lawiers Logike, Exemplifying the Praecepts of
L_ogike by the Practise of the Common Lawe. London: W. How, 1588.
[carton 8871

Freeman, Arthur. Introduction. Henry VI. Part Two. New York: New
American Library, 1986.

Fried, Charles. Contract as Promiae: A Theory of Contractual Obligation.
Cambridge, Mass: Harvard University Press, 1981. [K840.F74]

Fuller, Lon. The Morality of m. New Haven: Yale University Press, 1964.
[K230.F84M67l969l

Gardiner, S. R. The Constitutional Documents of the Puritan Revolption
1625-1660. Oxford: Clarendon Press, 1889. [DA400.622]

 

---. History of England from the Accession of |ames I to the Odtbreak of the
Civil War, 1603-1642. 10 vols. London: Longmans, Green, et al.,
1899-1900. [DA390.(3121]

Gilmore, Myron P. Humanists and lurists: Six Studies in the Renaissance.
Cambridge, Mass: The Belknap Press of Harvard University Press,

1963. [KBGS]

Girard, Rene. 'To Entrap the Wisest': A Reading of The Merchant df Venice."
Literature and Society. Ed. Edward Said. Baltimore: Johns Hopkins,
1980. [PR99.E671980]

---. Violence and the Sacred. Baltimore: Johns Hopkins University Press,
1972. IBL600.GS4131

Gleason, J. H. The Iustices came Peam in England, 1558 to 1640. Oxford:
Clarendon Press, 1969. [KJ.G65]

299

 

Gless, Darryl J. Measure for Measure the Law and the Convent. Princeton:
Princeton University Press, 1979. [PR2824.GS]

Gluck man, Max, ed. Essays on the Ritual of Social Relatione. Manchester,
England: Manchester University Press, 1962. [GN405.G55]

Goldberg, Jonathan. |ames I and the Polidcs of Literature. Baltimore: Johns
Hopkins University Press, 1983. [PR658.P6SG64]

Gough, J. W. Fundmental Law in English Constitutional History. Oxford:
Clarendon Press, 1955. [JN175.G61

Grebanier, Bernard. The Trath Abodt Shylock. New York: Random House,
1967. [PR2825.G67]

Green, Adwin Wigf all. The Inns of Court and Early English Drama. London:
Oxford University Press, 1931. [PR649.I6.G7]

Green, Thomas A. Velaict According to Conscience: Perspectives on the
English Criminal Trial Jury 1200-1800. Chicago: University of Chicago
Press, 1985. [KD8400.G7319851

Greenblatt, Stephen. Introduction. The Power of Forms in the English
Renaissance. Norman, Oklahoma: Pilgrim Books, 1982.
[PR421.P681982]

---. Renaissance Self -Fashioning: From More to Shakespeare. Chicago:
University of Chicago Press, 1981. [PR429.S45671980]

---. ir Walter Ralegh: The Renaissance Man and His Roles. New Haven:
Yale University Press, 1973. [PR2335.G7]

Greenleaf, W. H. Order, Empiricism and Politics : Two Traditions of English
Political Thought. Oxford: Oxford University Press, 1978. [JC151.G7]

Greenwood, Granville George. Shakespeare's Law. Hartford: E. V. Mitchell,
1920 [PR3028.G7; Folger]

Griffiths, R. A. "The Trial of Eleanor Cobham: An Episode in the Fall of
Duke Humphrey of Gloucester." Bulletin of the Iohn Rylands Library.

300
51 (1968-69): 381-99. [2921.M1791

Guy, J. A. The Conn 01; Star Chamber and Its Records to the Reign of Queen
Elizabeth 1. London: Her Majesties Stationery Office, 1985.
[KD8253.68319851

---. The Cardinal's Coprt: The Impact of Thomas Wolsey in Star Chamber.
Totowa, N. J.: Rowman and Littlefield, 1977. [KD8253.G81977]

Hair, Paul Ed. Before the Bawdy Court: Selections from church court and
other records relating to the correction of moral offences in England,

Scotland and new England, 1300-1800. New York: Harper & Row
Publishers Inc, 1972. [KD8760.H31972]

Hale, Sir M. History of the Common Law of England. Chicago: University of
Chicago Press, 1971. [KJ.H24]

Hall, Edward. The Union of the Two Noble and Illdstre Famelies of
Lancaster 8: York. London: J. Johnson, et al., 1809. [DA332f.H23]

---. The Union of the Two Noble and Illustre Famelies of Lancaster 8: York.
London: R. Graftoni, 1548; in Geoffrey Bullough, Narrative and
Dramatic Sources: of Shakespeare. London: Routledge and Kegan Paul.
1966.

Hamill, Monica. "Poetry, Law, and the Pursuit of Perfection: Portia's Role in
The Merchmit of Venice." Studies in English Literat_ure 1500-1900.
18 (1978): 229-43. lPN2.S751

 

Harding, Alan. The Social History of English Law. Harmondsworth: Penguin
Books Ltd., 1966. [KJ.H25]

---. The Law Codrts o_f Medievel England. New York: Barnes 6: Noble.
1973. [KD6850H351

Harding, Davis P. "Elizabethan Betrothals and Measure for Measure."

Journal of English and Germanic Philolpgy. 49 (1950) 139-158.

Hart, H. L. A. Punishment and Responsibility: Essays in the Law. Oxford:
Oxford University Press, 1964. [KJ.H3631

301

Hastings, Margaret. The Court of Common Pleas in Fifteenth-Century
England. Ithaca, New York: 1947. [KJ.H334]

Hay, Douglas, Peter Linebaugh, et a1. Albion's Fatal Tree: Crime and Society
in Eighteenth-Century England. New York: Pantheon Books, 1975.
[HV6943.A541975]

Hawkins, Harriet. "The Devil's Party": Virtues and Vices in Measure for
Measure." Shakespeare Survey. 31 (1978): 105-13.

---. "What Kind of Precontract had Angelo?" College English. 36 (1974):
173-9. [PE1.C61

Heard, Franklin Fiske. The Legal Acguirements of William Shakespeala
Boston: J. K. Wiggin, 1865. [PR3028.H41865; Folger]

---. hakespeare as a Lager. Boston: Little, Brown 8: Co., 1883.
[PR3028.H41883; Folger]

Heath, James. Torture and English Law: An Administrative and Legal
History from the Plantagenets to the Stuarts. London: Greenport
Press, 1982. [KD8225.T6H4]

Helmholtz, R. H. Canon Law and the English Common Law_. London: Selden
Society, 1983. [KD8605.H4519831

Henriques, Henry Strauss Quixano. The [ews and English Law. London: J.
Jacobs, 1908. [D3135.E5H31

Hill, Christopher. Intellectual Origins of the English Revolution. Oxford:
Clarendon Press, 1965. [DA380.H48]

---. The World Turned Upside Down. Harmondsworth, England: Penguin
Books, Ltd., 1985. (DA380.H53197ZB]

Hilton, Rodney. Bond Men Made Free: Medieval Peasant Movements and

the English Rising of 1381. New York: Viking Press, 1973.
[DA235H491977]

Hinely, Jan Lawson. "Bond Priorities in The Merchant of Venice." Studies
in English Literature 1500-199_Q. 20 (1980): 217-39. [PN2.S75]

302

Hobbes, Thomas. The Art of Rhetoric with a Discourse of the Law of
England. London: William Crother, 1681. [STC W r.106 no. 10.]

Holdsworth, W. S. A History of English Law. 3rd ed. 16 vols. London:
Methuen 8: Co. Ltd, 1923. [KJ.H64; Volumes 4-6 are on the
Renaissance]

Holmer, Joan Ozark. "Loving Wisely and the Casket Test: Symbolic and
Structural Unity in The Merchant df Venice." Shakespeare Studies. 11
(1978): 53-76. [PR2885.S64]

Holinshed, Rapheal. Chronicles. London: J. Johnson, 1807-8. [Special
Collections, DA 130f.H74]

Hooker, Richard. Of the Laws of Eccle§i_astical Polity. Ed. Georges Edelen.
Cambridge, Mass: Belknap Press of Harvard University Press, 1977.
[BV643.H81977]

Horne, Andrew. The Mirrour oLllastices. 1642. New York: Augustus M.
Kelley, Publishers, 1968. [KJ.H67131968]

Houlbrooke, Ralph. inrch Courts and the People Dugng the English
Reformation, 1520-1570. Oxford: Oxford University Press, 1979.
[KD8680.H681 1

Howard, George Elliott. A History of Matrimonial Institutions. 3 vols. New
York: Humanities Press, 1964. [H0503.H819641

Howard, Leon. "Portia‘s Reasoning in the Trial Scene of Shakespeare's The
Merchant of Venice." Neuphilolpgische Mitteilungen. 73 (1972):
103-9. [PB10.N415]

Howell, Thomas Bayley, ed. Cobbett's Complete Collecdon o_f State Trials;
and Proceedian for High Treason and Other drimes and Misdemeanors
from the Earlieat Period to t_he Present Time. London: R. Bagshaw,
1809. [KJ.H71

Hughs, William, "The Diversity of the Courts and Their Jurisdictions." DE

Mirrour of Iustices. New York: August M. Kelley, 1968.
[KJH671319681

303

Hurnard, Naomi D. The King's Pardon for Homocide Before AD. 1307.
Oxford: Clarendon Press, 1969. [KJ.H87]

Hurstfield, Joel. The Illusion of Power in Tudor Politics. London: The
Athalone Press, 1979. [JNI83 1509.H87]

---. Freedom. Corruption m Government in Elizabethan England. London:
Jonathan Cape, 1973. [JN181.H87]

Hyams, Paul. "Trial by Ordeal: The Key to Proof in the Early Common Law."
On the Laws the Customs of England: Essays in Honor of Samuel E.
Thorne. Ed. Morris S. Arnold.et a1. Chapel Hill: 1981: 90-120.
[KD606.061

Ives, E. W. The Common Eavgers of Pre-Reformation England.
Thomas Kebell: A Case Sttfiy. London: Cambridge University
Press, 1983. [KD621.K32 1.9319831

Jacob, E. F. "Sir John Fortescue and the Law of Nature." Bulletin of the
Iohn Rylands Library. 18 (1934) 359-76. [2921.M179]

James I. The Works. New York: Hildesheim, 1971. [DA39lf.A13l97l]

---. The Political Works of |ames 1. Intro. Charles H. Mcllwain. Cambridge,
Mass: Harvard University Press, 1918. [DA391f.J3A3]

James, M. E. "The Concept of Order and the Northern Rising 1569." Past
and Present. 60 (1973): 9-83. [HC260.P6.P68]

James, Philip S. Introdaction to English Law. 10th ed. London:
Butterworths, 1979. [KD661.J341979]

Jameson, Fredric. The Political Unconscitms: Narrative as a Socially

Symbolic Act. Ithaca, New York: Cornell University Press, 1981.
[PN81J29]

Jenkins, Iredell. Social Order and the Limits of the Law: A Thgyetical
Essay. Princeton: Princeton University Press, 1980. [K230.J45S6]

Johnson, John. A Collection of the Law and Canons of the Church of

304

England. Oxford: J. H. Parker, 1850-1851. [BX515.A31850]

Jones, W. J. The Elizabethan Court of Chancery. Oxford: Clarendon Press,
1967. [KJ.JS84]

---. Politics and the Bench: The |udges and the Origins of the English Civil
M. New York: Barnes and Noble, Inc., 1971. [KJ.J65481

-——. "Conflict or Collaboration? Chancery Attitudes in the Reign of Elizabeth
1.” American Journal of Legal History. 5 (1961): 12-54.

Jordan, William Chester. "Approaches to the Court Scene in The Bond Story:
Equity and Mercy or Reason and Nature?" Shakespeare Quarterly.
33 (1982): 49-59. [PR2887.N521

Judges, A. V. The Elizabethan Underworld London: George Routledge &
Sons, Ltd., 1930. [PR429.R6J8]

Judson, M. A. The Crisis of the Constitution: An Essay in Constitational
and Political Thought. 1603-1645. New Brunswick: Rutgers
University Press, 1949. [JNI93.J8]

Kadish, Sanford H., Stephen J. Schulhofer and Monrad G. Paulsen. Criminal
Law and Its Processes; Cases and Materials. Boston: Little Brown and
Company, 1983. [KF9218.K3I983]

 

Kantorowicz, Ernst H. The King's Two Bodies: A Starla! in Mediaeval Political
Theolggy. Princeton: Princeton University Press, 1957. [JC385.K25]

Keeton, George W. English Law: The ludicial Contribution. Newton
Abbot: David 8: Charles, 1974. [KDS32.K4]

---. Shakespaareaaad His LegLProblems. London: A 8: C.
Black Ltd, 1930. [PR3028.K4; Folger]

---.Shakespeare's Legal and Political Background. London: Pitman,
1967. [PR3028.K42; Folger]

Kelly, Faye L. "Oathes in Shakespeare‘s Henry VI Plays." Shakespeare

305
Quarterly. 24 (1973): 357-71. [PR2887.N521
Kelman, Mark. A Guide to Caitical Legal Studies. Cambridge, Mass:
Harvard University Press, 1987. [K230.K43G851987]

Kempin, F. ngal History: Law and Social Change. Englewood Cliffs, N. J.:
Prentice-Hall, 1963. [KG.K45)

Kennedy, Duncan. "The Structure of Blackstone‘s Com menaries." 28 Buffalo
Law Review. 205 (1979). [K2.U34)

Kenyon, J. P. The Staart Constitution. Cambridge: Cambridge University
Press, 1966. [JN191.K41986]

 

---. Stuart England. 2nd ed. Harmondsworth, England: Penguin Books,
Ltd., 1985.

Kermode, Frank. "Some Themes in The Mercmt of Venice." Twent_i_v_e_ta
Century Interpretations of the "Mercaant of Venice": A Collection of
Critical Egaya. Ed. Sylvan Barnet. Englewood Cliffs, N. J.:
Prentice-Hall, Inc., 1970. [PR2825.B31970)

Kimball, E. G. "A Bibliography of the Printed Records of the Justices of the
Peace for Counties." University of Toronto Law Journal. 6 (1945-46):
401-13. [K.A1U5]

 

Kiralry, A. K. R. Potter's Ogtlinea of English Legal History. London: Sweet 8:
Maxwell Ltd, 1958. [KJ.P6]

Knafla, Louis A. Law and Politics inJacobean England: The Tracts of Lord
Chancellor flesmere. Cambridge, Cambridge University Press, 1977.

 

---. "Ramism and the English Renaissance." Science. Technology and Culture
in Historical Perspective. Eds, L. A. Knafla, M. Staum, T. Travers.
Calgary, 1976: 25-50. [0127.N6534]

Knights, L. C. "The Ambiguity of Measure for Measure." Scrutiny. 10
(1942): 222-33. [AP-1.543)

306

—--. Drama and Society in the Age of Ionson. London: Chatto & WindUs,
1937. [PR655.K6)

Lacey, Robert. Sir Walter Ralegh. London: Weidenfeld and Nioolson, 1973.
[DA86.22.R2L31974)

LaFave, Wayne R. and Austin W. Scott. Handbook on Criminal Law. St.
Paul: West Publishing Co., 1972. [KF9219.L38]

Lambarde, William. Archeion, or A Discourse Upon the High Courts
of Iustice in England. Eds. Charles H. Mcllwain and Paul L. Ward.
Cambridge, Mass: Harvard University Press, 1957. [KJ.L321]

---. "Charge to Jurors." [Folger Shakespeare Library MS. X. d. I 19 (17)]

-—-. The Duties of Constables. London: R. Newberrie 8: H. Middleton, 1583.
[carton “l 145)

---. Eirenarcha, or Of the Office of the Justice of Peace, in Four Books.

London: Newberry and H. Bynneman, 1581. [Special Collections
KD7309.L3)

Landon, Michael. The Triumph of the Lamers: Their Role in English
Politics 1678-1689. University, Alabama: University of Alabama

Press, 1970. [JN191.L35]

 

Langbein, John. "The Criminal Trial Before Lawyers." 45 University of
Chicago Law Review. 263-316. (1978) lKH.AlU585)

---. Torture and the Law of Proof. Chicago: University of Chicago Press,
1977. [KO.A3L354]

Lawrence, William W. Shakespeare's Problem Comedies. 2nd ed. New
York: Frederick Ungar Publishing Co., 1960. [PR 2981.L31960]

Leach, Edmund R. "Ritual." International Engclopedia of the Social
Sciences. Ed. David L. Sills. l6 vols. New York: Macmillan, I968-79.
[H41.f.l5l

Legatt, Alexander. Shakespeare's Comedy of Love. London: Methuen

 

307

& Co., 1974. [PR298I.L43]

Levack, Brian. P. The Civil Lawyers in England 1603— 1641: A Political
Study. Oxford: The Clarendon Press, 1973. [KD460.L4]

Lever, J. W. Introduction. Measure for Measure. William Shakespeare.
London: Methuen, 1965.

Levy, Leonard W. Treason Against Goa: A History o_f the Offense o_f_
Blasphemy. New York: Schocken Books, 1981. [KD8073.L48]

Lewalski, Barbara K. "Biblical Allusion and Allegory in The Mergant of
Venice". Shakespeare Quarterly. 13 (1962): 327-43. [PR2887.N521

Lyon, Bryce. A Constitutionaaand Legal History of Medieval England. 2nd
ed. New York: W. W. Norton 8: Co., 1980. [JN137.L91980]

MacFarlane, Alan. Witchcraft in Tudor fld Stuart England. New York:
Harper and Row, 1970. [BF1581.M27]

---. The Jpstice and the Mare‘s Ale: Law and Disoader in Seventeenth-
Century England. New York: Cambridge University Press, 198 1.
[DA670.C93M321981)

McGuire, Philip. Speechless Dialect: Shakespeare‘s Open Silences. * Berkeley:
University of California Press, 1985. [PR3091.M27I9851

McNeal, Thomas H. "Margaret of Anjou: Romantic Princess and Troubled
Queen." Shakespaare Quarterly 9 (1958): 1—10. [PR2887.N521

Machiavelli, Nicolo. The Prince. Trans. Luigi Ricci. Rev E. R. P. Vincent.
New York: The New Amrican Library, Inc., 1952.

Maitland, Frederic William. The Forms of Action at the Common Law.
Ed. A. H. Chaytor and W. J. Whittaker. Cambridge, England: The
University Press, 1962. [KJ.M322]

---. nglish Law and the Renaissance. Cambridge, England: The University
Press, 1901. [347.M232e]

308

---. _guity: A Catase of Lecttfis by F. W. Maitland. Ed. A. H. Chaytor and
W. J. Whittaker. Rev. John Brungett, Cambridge, England: The
University Press, 1936. [347.8M232e2]

---. The Constitutional History of England. Cambridge, England: The
University Press, 1908. [JN118.M23]

---. Selected Essaya. Cambridge, England: The University Press, 1936.
[Contains "The Body Politic"; HD2847.M3]

Marsh, A. H. History of the Court of Qaanceryaid of the Rise apg
Development of the Doctrines of Eguity. Toronto: Carwell 8: Co.,
Publishers, 1890. [KJ.M322]

Marshall, H. H. Natural |ustice. London: Sweet 81. Maxwell Ltd, 1959.
[KJ.M37]

---. Introduction. The Merchant of Venice. Harmondsworth, England:
Penguin Books, Ltd, 1967.

Miles, Rosalind. The Problem of "Measaire for'Meaflre": A Historical
Investigation. New York: Harper and Row, Publishers, Inc, 1976.
[PR2824.M54)

 

Milsom. S. F. C. Historical Foundations of the Common Law. London:
Butterworths, 1969. [KD671 Z9M5]

Montrose, Louis A. "The Purpose of Playing: Reflections on A Shake-
spearean Anthropology." ns Helios. 7 (1980): 51-74. [P07539.M]

Moody, A. D. The Merchant of Venice. London: Edward Arnold, 1964.
[PR2825.A2M61

Morison, Sir Richard. Humanist Scholarship and Public Order, Two Tracts
against the Pilgrimage of Gtaca. Ed. David Sandler Berkowitz.
Washington: Folger Books, 1984. [DA33 I.M671984]

Nagarajan, S. "Measure for Measure and Elizabethan Betrothals,‘
Shakespeare Quarterly. 14(1963): 115-119. [PR2887.N521

309

Neilsen, George. Trial by Combat. Glasgow: William Hodges 6: Co., 1890.
[CR-1565M!)

Norman, C. H. "Shakespeare and the Law." Times Literary Supplement,
June 30, 1950. [AP4.T45]

Notestein, Wallace, Frances H. Relf, and Hartley Simpson. Commons
Debates 1621. 7 Vols. New Haven: Yale University Press, 1935.
[DA385.N55)

Palmer, Robert C. The County Courts of Medieval England. Princeton, N. J.:
Princeton University Press, 1982. [KD.6972.P341982]

Parker, Marion Hope. The Slave of Life: A Study o_f Shakespeare and the
Idea of Justice. London: Chatto & Windus, 1955. [PR2986.P3]

Parten, Anne. "Reestablishing Sexual Order: The Ring Episode in I_h_e_
Merchant of Venice." Womens Studies. 9 (1982): 145-55.
[H01101.W66l

Peterson, Douglas. "The Tempest and Ideal Comedy," Shakespearean Comedy.
Ed. Maurice Charney. New York: New York Literary Forum, 1980.

Petet, E. C. "The Merchant of Venice and the Problem of Usury." Twentieth
Century Interpretations of the Merchant of Venice: A Collection 0;
Critical Essays. Ed. Sylvan Barnet. Englewood Cliffs, N. J. : Prentice-
Hall, Inc, 1970. [PR2825.B31970]

Phillips, 0. Hood. Shakespeare and the Lawyers. London: Methuen 8:
Co., Ltd, 1972. [PR3028.P65)

Plucknett, T. F. T. Studies in English Legal History. London: The Hambledon
Press, 1983. [KD606.P58)

Pocock, J. G. A. The Ancient Constitution and the Feudal Law. Cambridge:
Cambridge University Press, 1957. [JN191.P61987]

---. The Mgfiavellian Moment: Florentine Political Thought and the

 

 

310

---. The Machiavellian Moment: Florentine Poliaipatl Thculguit and the
Aalantic Republican Tradition. Princeton: Princeton University Press,
1975. [JC143.M4P6)

---. "The Sense of History in Renaissance England." William Shakesgare:
Hag Worla, Hia Work His Influence. Ed. John F. Andrews. 3 vols. New
York: Scribners, 1985. [PR2976f53541984]

 

Post, Gaines. Studies in Meaieval Legal Thought: Public Law and the State.
Princeton: Princeton University Press, 1964. [KB.P67]

Pound, John. Poverty and Vagrancy in Tudor England. London and New
York: Longman, 1971. [HC260.P6.P68)

Powell, C. L. E_nglish Domestic Relations: 1487-1653. New York: Columbia
University Press, 1917. [HQ613.P8[

Poznar, Walter. "Shylock and the Social Order." Centennial Review. 26
(1982): 302-62. [AS30.M55A181

Pratt, Samuel M. "Shakespeare and Humphrey of Gloucester: A Study in
Myth." Shakespeare Quarterly. 16 (1965): 201-16. [PR2887.N521

Prest, Wilfrid R. The Inns of Cara-t Unaer Elizabeth I and the Early
fluarts 1590-1640. London: Longmans, 1972. [MSU KD502.P7[

---, ed. Lawyers in Early Madern Europe and America. London: Croom
Helm, 1981. [K1 1519L28; Contains E. W. Ives' "The Common Lawyers
in Pre-Ref or mation England," and J. H. Baker's "The English Legal
Profession 1450-1550."l

Prouty, Charles T. "The Contention" and saakespeare's "2 Henry VI": A
Comparative Study. New Haven, Yale University Press, 19 54.
[PR2815.P7)

Quiller-Couch, Sir Arthur. Introduction. Measure for Measure. Cambridge,
England: Cambridge University Press, 1922.

Quintillian. The Institutio Oratoria. Ed. H. E. Butler. New York: G. P.
Putnam‘s Sons, 1921. [PA6649.A21939]

 

 

 

311

Radin, Max. "The Myth of Magna Carta." Harvard Law Review. 60 (1947):
1060-91. [KH.A1H27)

Raleigh, Sir Walter. The History at the Worla. London: G. Latham & R.
Young, 1634. [Special Collections, 930LR1634]

Reese, Max. The Cease of Majesty: A Study of Shakespeare's History Plays.
London: Edward Arnold, 1961; New York: St. Martin's Press, 1962.

(PR2982.R451962)

 

Reeves, John. 1_I_i_story 9L the English Law: From the Time of the Saxons to
the End of the Reign of Philip and Mary. 2nd Ed. 1787; New York:
Augustus M. Kelley, 1969. [KJ.R441969]

Ribner, Irving. The Eaglish History Play in the Age of Shakespeaae,
Princeton, N. J.: Princeton University Press, 1957. [PR658.H5R51965]

Rickey, Mary Ellen and Thomas B. Stroup. Introduction. C_________ertaine Sermons
or Homilies Appointed to be Read in Ch hurches In the Time of Queen
Elizabeth 1 (1547-1571). 1623; Gainesville, Florida: Scholars'
Facsimilies 81 Reprints, 1968. [BXSI33A1A31968]

Riggs, David. Shakespeare‘s Heroical Histories: "Henry VI" and Its Literary

Tradition. Cambridge, Mass: Harvard University Press, 1971.
[PR2813.R491971]

Roberts, Clayton. The Growth of Responsible Government in Stuart England.
Cambridge, England: Cambridge University Press, 1966. [DA375.R6]

Roberts, John M. "Oath, Autonomic Ordeals and Power." American
Anthropolpgist. 67 (1965): 180-212. [GN1.A48)

Rolph, C. H. The Queen's Pardon. London: Cassell, 1978. [HV8692.R6]

 

Roth, Cecil. A History of theyews in England. 3rd ed. Oxford: Clarendon
Press, 1941. [DSI3S.E5R621964)

Russell, Conrad. The Caisis of Parliaments: English History 1509-1660.
London: Oxford University Press, 1971.

312
Russell, M. J. "Trial by Battle and the Writ of Right," and "Trial by Battle
and Appeals of Felony." lournal of Legal History. 1 (1980): 111-64.

Salgado, Gamini. The Elizabethan Ungarworla London: J. M. Dent 6: Sons,
Ltd, 1977. [HV6950.L7S35)

"Scale." The Compact Ediaion of the Oafgg English Dictionary. Oxford:
Oxford University Press, 1971.

Schanzer, Ernst. "The Marriage Contracts in Measure for Measure."
Shakespeare Studies. 13 (1962): 81-9. [PR2805.S64[

 

Schochet, Gordon J. Patriarchalism in Political Thought: The Authoritarian
Family and Politiaal Speculation and Attitudes Especially in
Seventeenth-Cemalry England. Oxford: Blackwell Press, 1975.
UC15153519751

 

Scouten, Arthur H. "An Historical Approach to Measure for Measure."
Philolpgical Ouartegy. 5 (1975): 68-83.

Shakespeare, William. William Shakespeare. The Complete Worka. Ed.
Alfred Harbage. New York: The Viking Press, 1969.

---. Mr. William Shakespaare's Comeaies. Histories 81 Tragedies. 1623;
New Haven: Yale University Press, 1955. [Pr2751.A151955]

---. The First Part of the Contention of the Twofimoua Houses of York_e
and Lancaster, with the Death of the Good Duke Humphrey. London:
T. Creed for T. Millington, 1594; Oxford: The University Press, 1985.
[PR2750.BISI985)

---. The Most Excellent Historie of the Merchant of Venice. London:
Iames Roberts for Thomas Heyes, 1600; London: The Shakespeare
Association and Sidgwick 81 Jackson, Ltd, 1939. [PR2750.B251939][

Sharp, Buchanan. In Contempt of All Authority: Rural Artisans and Riot in
the West of England. 1586-1660. Berkeley: University of California

Press, 1980. 50-3. [HN398.E554]

313

Sharpe, J. A. Crime and the Law_in English Satirical Prints 1600-1832.
Cambridge, England: Chadwyck-Healey, 1986. [HV9960.G755319861

---. Crime in Early Moaern England, 1550-1750. New York: Longmans.
1984. [HV6949E58531984I

---. grime in Seventeenth-Century England: A County Study. Cambridge,
England: Cambridge University Press, 1983. [HV9649.E83S471983]

Defamation and Sexual Slander in Early Modern England: The Church
Courts at Yora . Borthwick Papers No. 58. St. Anthony's Hall,

Peasholme Green, York: University of York, 1980. [KD8760.S471980]

~--. "The History of Violence in England: Some Observations." Past 8:
Present. 108 (1985): 206-224. [HC260.P6.P68)

Sharpe, Kevin. Factionand Parliament: Essays on Early Stuart History.
Oxford: Clarendon Press, 1978. [JN193.F32]

Sharpe, Kevin and Steven N. Zwicker. Politics of Discotase: The Literature
glad History of Seventeenth-Century England. Berkeley: University of
California Press, 1987. [PR438.P65]

Shetreet, Shimon. |udges on Triaa A Study of the Appointment and
Accountability of the English ludiciary. Amsterdam: North-Holland
Publishing Co., 1976. [KB 7285.554)

Shirely, Francis A. Swearing and Perjury in Shakespeare's Plays. London:
George Allen 81 Unwin, 1979. [PR3069.S94]

Sigmund, Paul E. Natural Law in Political Thought. New York: University
Press of America, 1971. [K415551982]

Skinner, Quentin. The Foundations of Modern Political Thought. 2 vols.
Cambridge: Cambridge University Press, 1978. [JA81.554[

Slavin, Arthur J. Ed. Tudor Men and Institutions: Studies Q leish Law

and Government. Baton Rouge: Louisiana State University Press,
1972. [KD606.855]

314

Smith, Alan G. R. The Government of Elizabethan England. New York: W.
W. Norton 8: Co., Inc, 1967. [JN185.S4]

Smith, Henry. The Lawyer's Question: The Answere to the Lawiers
Question: The Censure of Christ Upon the Answer. London: T. Gosson.
1575. [carton 1 157]

 

Smith, Lacy Baldwin. Treason in Tugor England: Politics and Paranoia.
London: Jonathan Cape, 1986. [DA315.S651986]

Smith, Sir Thomas. De Republica Angloruaa Ed. Mary Dewar. Cambridge,
England: Cambridge University Press, 1982. [JN185.551982]

Smith, Sir Thomas. De Republica Anglorata. 1583; Menston, England: The
Scholar Press, 1970. [JN185.551970; facsimile]

Smith, Steven R. "The London Apprentices as Seventeenth-Century
Adolescents." Past and Present. 61 (1973) I49. [D1.P3[

Sommerville, J. P. Politics and Ideolpgy in England. 1603-1640. London;
New York: Longman, 1986. [JA84.G7S661986[

Sorlein, Robert Parker. The Diary of Iohn Manningham of the Middle ,
Temple, 1602-1603. Hanover, N. H.: The University Press of New

England, 1976. [KD621.M28A3319761

Spedding, J. and D. D.Heath, Eds. Works of Sir Francis Bacon. London:
Longmans and Co., 1892; reprinted, Boston: Houghton-Mifflin Co.,
19371811531890]

Spufford, Margaret. "Puritanism and Social Control." Order and Disoraer in
_Early Mogrn England. Eds. Fletcher and Stevenson. Cambridge,
England: Cambridge University Press, 1985.

Stephenson, Carl, and Frederick G. Marcham, eds. Sources of English
Constitutional History. 2 vols. New York: Harper and Row, Publishers,
1972. [JN111.S671972]

.315

Stone, Lawrence. The Family, Sex and Marriage in England 1500-1800.
London: Weidenfeld and Nicholson, 1977. [HQ615.S75]

---. The Caisis of the Aristocraga Oxford: Clarendon Press, 1965.
(DA356S81

---. "The Educational Revolution in England, 1560-1640." Past and Present.
28 (1964): 41-80. [HC260.P6.P68)

Storey, R. L. The End of the House of Lancaster. London: Barrie and
Rockcliff, 1966. [DA257.S7]

Stow, John. The Chronicles of England. London: Richard Tottle and Harry
Binneman, 1580. [carton 505]

---. The Annales or Generall Chronicle of England. London: T. Adams, 1615.
[substantially the same on 15th century as the 1580 edition; reel
1434]

Stuart, A. Francis. Trial of Mary Queen of Scots. London: William Hodge
and Company, Limited, 1923. [KJA.M3391951]

Swinburne, Henry. Treatise of Spousals or Matrimonial Contr__acts. London:
5. Raycroft for Robert Clavell, 1686. [STC r. 298 no. 24]

Talbert, Ernest William. The Problem of Oraer: Elizabethg Political
Com monplaces and an Example of Shakespeare's Art. Chapel Hill: The
University of North Carolina Press, 1962. [JA 84.G7T2[

---. Elizabethan Drama and Shakespeare's Early Plays: An Essay in
Historical Criticism. Chapel Hill, NC: The University of North Carolina

Press, 1963. (PR2976.T23]

Tanner, J. R. Constitut_ional Documents of the Reign of |ames 1. Cambridge,
England: The University Press, 1930. [JN193.T3]

Tawney, R. H. Religion and the Rise of Capitalism. Harmondsworth,
England: Penguin Books, 1938. [BR115.E3T31938]

---. usiness and Politics and |ames 1. Cambridge, England: Cambridge

316
University Press, 1958. [HF3503.4.T3)

Thomas, Donald Ed. State Trials. London: Routledge 8: Kegan Paul, 1972.
[KD370.T454]

Thomas, Keith. Religion and the Decline of Magic. Harmondsworth,
England: penguin Books, Ltd, 1973. [BR377.T481971bl

Thompson, E. P. Whigs and Hunters. London: Allen Lane, 1975.
[KD7852.BSST481975a)

Thorne, S. E. Essays in English Legal History. London: The Hambledon
Press, 1985. [KD606.T451985]

Tillyard, E. M. W. Shakespeare‘s History Plays. London: Chatto and Windus,
1944 [PR2982.T51980]

Tisdale, Roger. The Lawyer's Philoaophy: Or. Law Brought to Ligh_t,
Poetized in a Divine Rhapsodie or Contemaalative Poem. London: I. T.
Rundel and H. G. Gosssen, 1622. [carton 582]

Troeltsch, Ernst. The Social Teaching of the Christian Churches. Trans.
Olive Wyon. London: Allen 81 Unwin; Macmillan, 1931; Reprint,
Chicago: University of Chicago Press, 1981. [HN31.T131981]

Trevelyan G. M. England Under the Stuarts. London: Methuen, 1949.
[0113751719461

Tuck, Richard. Natural Rights Theories: Their Origin and Development.
Cambridge, England: Cambridge University Press, 1979. [K414.T83]

 

Tucker, Edward. Intrtaer into Egan: Repreaentatives of the Common

Layer in English Literature, 1350-1750. Columbia, 5. C.: Camden
House, 1984. [PR149.L2T8]

Turner, Robert Y. "Shakespeare and the Public Confrontation Scene in Early
History Plays." Modern Philology. 72 (1964), 1-12 [PB1.M7)

Turner, Victor. The Ritual Process: Structure and Anti-Structure. Chicago:
University of Chicago Press, 1967. [GN473.T82]

317

Tyacke, N. R. N. "Puritanism, Arminiansim and Counter-Revolution." 111a
gagins of the Eaglish C_ivilWa_1;. Ed. C. Russell. New York: Barnes 81
Noble, 1973. [DA415.R81973B]

Underdown, Anthony. Revel. Riot an_d Rebellion: Popular Politics and
Culture in England 1603—1660. Oxford: Oxford University Press, 1987.
[DA406.U531985)

Underhill, Nicholas. The Lord Chancellor. Lavenham, Suffolk: Terrence
Dalton Limited, 1978. [KD7107.U52]

Unger, Roberto Mangabeira. The Critical Legal Studies Movement.
Cambridge, Mass: Harvard University Press, 1983.
[K230.U56C751986]

Usher, R. G. "James I and Sir Edward Coke." E_nglish Historical Review. 18
(1903) 664-75. [DA20.E58]

Van Caenegem, R. C. The Birth of the English Common Law- Cambridge:
Cambridge University Press, 1973. [KD67119]

Van Genep, Arnold. The Rites of Passage. Chicago: University of Chicago
Press, 1960. [P83552R659R5]

Walter, John and Keith Wrightson. "Dearth and the Social Order in Early
Modern England." Past and Present. 71 (1976): 22-41.

Walzer, Michael. The Revolution of the Saints: A Study of the Origins of
Radical Politics. New York: Atheneum, 1970. [B756.W34]

Weimann, Robert. Shakespeare and the Popular Tradition in t_he Theater:
Studies in the Social Dimension of Dramatic Form and Function. Ed.
Robert Schwartz. Baltimore: Johns Hopkins University Press, 1978.

Weisser, R. Crime and Punishment in Early Modern Europe. Hassocks,
England: Harvester Press, 1979. [HV6937.W441979]

Wentersdorf, Karl P. "The Marriage Contracts in Measure for Measure:
A Reconsideration." Shakespeare Survey. 32 (1980): 129-144.

318

Weston, Corinne Comstock and J. R. Greenberg. Subjects and Sovareigns:
The Grand Controvers Over Le al Soverei nt in Stuart and
Cambridge, 1981. [PR421.P681982]

Whetstone, George. Promos and Cassandra. Narrative and Dramatic
Sources of Shakespeare. Ed. Geoffrey Bullough. 2nd ed. 5 vols. New
York: Columbia University Press, 1963.

White, P. "The Rise of Arminianism Reconsidered." Past and Present.
101 (1983) 35-54. [D1.P3)

White, Stephen D. Sir Edward Coke and the Grievances of the Common-
wealth. Manchester, England: Manchester University Press,
1979. [KD612.W4719791

Wilkinson, Bertie. Constitutional History of English in the Fifteenth
Century. 1399-1485. London: Longmans, 1964. [JN165.W5]

Williams, Penry. The Tador Regime. Oxford: Clarendon Press, 1979.
[JN181.W54]

Williamson, James A. The Tudor Aaa. London: Longman, 1979.
[DA315.W5196]

Wilson, Thomas. Discourse Upon Usury. 1925 Ed. R. H. Tawney. Intro.
R. H. Tawney. New York: Kelley, 1963. [HR535.W751963]

Wither, George. Collection of Emblems Ancient and Modern. 1635;
Menston, England: Scolar Press, 1968. [PR2392f.E35]

Wolffe, B. P. "Acts of Resumption in the Lancastrian Parliaments, '
1399-1456." Eaglish Historical Review. 73 (1958): 583-613.
[DA20.E58]

Wooton, David. Divine Right and Democrady: An Antholpgy of Political
Writings in Stuart England. Harmondsworth, England: Penguin Books

Ltd, 1986.

Youings, Joyce. Sixteenth-Century England. Harmondsworth, England:

319
Penguin Books, Ltd, 1984.

Zeumer, Karl, ed. Formulae Merowingici et Karolini aevi. Hanover,
Germany: 1886.

COPYRIGHT PERMISSION

Excerpts from Shakespeare's Histories: Mirrors of Tudor Policy by Lily
B. Campbell, San Marino: The Huntington Library, 1947, are reprinted with
the permission of the Henry E. Huntington Library.

Excerpts from Whigs and Hunters: The Origin. of the Blapla Act by B. P.
Thompson are reprinted with permission of Pantheon Books, a Division of
Random House, Inc.

Excerpts from "Macbeth and Historiography," by David Norbrook in
Politics of Discourse: The Literature and History of Seventeenth-Century
England, Berkeley: University of California Press, 1987 are reprinted with
permission of the University of California Press.

Excerpts from the Introduction of Order and Disorder in Early Modern
England by Anthony Fletcher and John Stevenson, eds, Cambridge, England:
Cambridge University Press, 1985 are reprinted with permission of the
Cambridge University Press.

Excerpts from "Puritanism and Social Control,” by Margaret Spufford in
Order and Disorder in Early Modern England, eds, Anthony Fletcher and John
Stevenson, Cambridge, England: Cambridge University Press, 1985 are
reprinted with permission of the Cambridge University Press.

Excerpts from R. H. Tawney‘s Introduction to A Discourse Upon Usury
by Thomas Wilson, New York: Kelley, 1963 are reprinted with permission of
Augustus M. Kelley, Publishers.

Excerpts from An Ungovernable People: The English and Their Law in
the Seventeenth and Eighteenth Centuries, by John Brewer and John Styles,
London: Hutchinson University Library, 1980 are reprinted with permission
of Century Hutchinson Ltd.

\Iiii.

Excerpts from The Harmonies of the Merchant of Venice by Lawrence
Danson, New Haven: Yale University Press, 1978 are printed with permission
of Yale University.

ix.

 

TABLE OF CONTENTS

INTRODUCTION

CHAPTER 1 Political Disintegration and the Trial Scenes of
2 Henry VI

CHAPTER 2 Contexts of Play and Earnest: The Interpretation
of Shylock‘s Bond

CHAPTER 3 Staging Justice: The Trial Scenes of Measure for
Measure

NOTES

LIST OF WORKS CONSULTED

I70

COPYRIGHT PERMISSION

Excerpts from Shakespeare's Histories: Mirrors of Tudor Polig by Lily
B. Campbell, San Marino: The Huntington Library, 1947, are reprinted with

the per mission of the Henry E. Huntington Library.

Excerpts from Whigs and Hunters: The Origin of the Black Act by E. P.
Thompson are reprinted with per mission of Pantheon Books, a Division of

Random House, Inc.

Excerpts from "Macbeth and Historiography," by David Norbrook in
Politics a1 Diapata‘se: The Literature and History of Seventeenth-Century
England, Berkeley: University of California Press, 1987 are reprinted with
permission of the University of California Press.

Excerpts from the Introduction of Order and Disorder in Early Modern
England by Anthony Fletcher and John Stevenson, eds, Cambridge, England:
Cambridge University Press, 1985 are reprinted with permission of the
Cambridge University Press.

Excerpts from "Puritanism and Social Control," by Margaret Spufford in
Order and Disorder in Early Modern England, eds., Anthony Fletcher and John
Stevenson, Cambridge, England: Cambridge University Press, 1985 are
reprinted with permission of the Cambridge University Press.

Excerpts from R. H. Tawney's Introduction to A Discourse Upon Usury
by Thomas Wilson, New York: Kelley, 1963 are reprinted with permission of
Augustus M. Kelley, Publishers.

Excerpts from An Ungovernable People: The @glish and Their Law in
the Seventeenth and Eighteenth Centuries, by John Brewer and John Styles.
London: Hutchinson University Library, 1980 are reprinted with permission
of Century Hutchinson Ltd.

Excerpts from The Harmonies of the Merchant of Venice by Lawrence
Danson, New Haven: Yale University Press, 1978 are printed with permission
of Yale University.

 

TABLE OF CONTENTS

 

INTRODUCTION 1

CHAPTER 1 Political Disintegration and the Trial Scenes of 31
_2 Henry VI

CHAPTER 2 Contexts of Play and Earnest: The Interpretation 135
of Shylock's Bond

CHAPTER 3 Staging Justice: The Trial Scenes of Measure for 170
Meagan

NOTES 247

LIST OF WORKS CONSULTED 287

xi.

 

 

 

[[[[l[[[[[[[2[[[||[[[|[[[[[[|[[[[|[[[l[[[[|E[3[[[[|[[|[|[[3[|[[[[[[l